IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110012393 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests payment for her U.S. Army Reserve (USAR) service for the period 1982 through 1990.

2.  The applicant states:

* If she didn't show up for meetings (weekend drills) how did she know to go to Fort Bliss or Fort Sam Houston, TX or Fort Knox, KY
* She never received a Reserve check
* The sergeant kept telling her lies and was prejudice
* She has mental disabilities stemming from injustices in the service

3.  In an undated letter, she states:

* she has been trying to receive her Reserve pay for years
* she is 100 percent (%) disabled because of mental disabilities
* there is no statute of limitations on mentally challenged individuals
* someone took her Reserve checks
* she didn't get out of the USAR until 2 February 1990
* she never received a Reserve check for weekend duty
* someone is lying
* she got out as an E-5
* she never had a break in service from 26 September 1978 to 2 February 1990


4.  The applicant provides:

* Letter from the Defense Finance and Accounting Service (DFAS), dated 15 April 2011
* Leave and Earnings Statements (LES) between March 1982 and February 1987
* Barring Act of 1940
* Letter from the Army Review Boards Agency, dated 20 January 2011
* Honorable Discharge Certificate from the USAR, dated 6 February 1990
* Promotion orders
* DA Form 1059 (Service School Academic Evaluation Report)
* Enlistment document, dated 6 February 1987
* Letter from the Office of the Inspector General, U.S. Army Human Resources Command, dated 6 February 1990

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the USAR on 19 September 1978 for a period of
6 years under the delayed entry program (DEP).  She was discharged from the USAR DEP on 25 September 1978 and she enlisted in the Regular Army on 
26 September 1978 for a period of 3 years.  On 30 March 1982, she was honorably released from active duty at the completion of required training and she was transferred to the USAR Control Group (Reinforcement) to complete her remaining service obligation.  She was promoted to the rank/grade of sergeant (SGT)/E-5 effective 15 October 1983.

3.  She enlisted in the USAR on 8 February 1984 in the rank of SGT for a period of 3 years.  She was ordered to active duty for training on 11 April 1984 for approximately 120 days or completion of military occupational specialty (MOS) 


training.  On 16 August 1984, she was released from active duty and transferred back to her USAR unit.  She reenlisted in the USAR on 6 February 1987 for a period of 3 years.  On 6 February 1990, she was honorably discharged from the USAR in the rank of SGT.

4.  There is no evidence that shows she was diagnosed with a mental condition prior to her discharge from the USAR.

5.  She provided a letter from DFAS, dated 15 April 2011, pertaining to her telephone call regarding non-receipt of Reserve pay from 1982 through 1990.  The letter states her Reserve pay LESs were reviewed and the documents show no entitlement exists for the period in question.  DFAS provided the applicant with her Reserve LESs for the period between March 1982 and February 1987.  The LESs do not show any entitlement for drill attendance and the majority of the LESs show the entry "NO DRILL PERFORMANCE."
 
6.  Her Army Reserve Personnel Command (ARPC) Form 249-E (U.S. Army Human Resource Command Chronological Statement of Retirement Points), dated 22 December 2011, shows her service in the USAR.  She earned 149 retirement points (6 inactive duty points, 15 membership points, and 128 active duty points) during retirement year ending (RYE) 7 February 1985 (her active duty service for MOS training).  There are no other active duty retirement points shown on her statement.

7.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  It provides that an annual statement of Retired Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

8.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the sergeant lied to her and was prejudice.  However, there is no evidence which shows she was a victim of discrimination.

2.  She contends she has mental disabilities stemming from injustices in the service.  However, there is no evidence which shows she was diagnosed with a mental condition prior to her separation from the USAR in 1990.

3.  She contends she attended her drills but she never received Reserve pay during the period 1982 to 1990.  However, there is no evidence of record and she did not provide any evidence that shows she attended drills during the period 1982 to 1990.

4.  Her Reserve LESs provided by DFAS do not show any entitlement for drill attendance during the period in question.

5.  Her ARPC Form 249E shows she only earned 128 active duty points (for MOS training) during RYE 7 February 1985.

6.  Since it is now almost 22 years after she separated from the USAR, the doctrine of laches is invoked in her case.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 


are insufficient as a basis for correction of the records of the individual concerned.



      ___________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110012393



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ABCMR Record of Proceedings (cont)                                         AR20110012393



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