IN THE CASE OF:
BOARD DATE: 7 February 2012
DOCKET NUMBER: AR20110013849
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, in effect, additional pay for his service during the period 1968 to 1971.
2. The applicant states:
* he served as tunnel rat in Vietnam because of his height and weight
* he feels he was underpaid for the position
* he was unable to submit a claim to the Defense Finance and Accounting Service (DFAS) in a timely manner due to his physical and mental condition as a result of his service in Vietnam
3. The applicant provides:
* DFAS letters, dated 21 April 2011 and 1 April 2011
* Military pay vouchers
* Two letters from his physician
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
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 applicants 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 applicants 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 Regular Army on 16 October 1968 for a period of 3 years. He completed his training and was awarded military occupational specialty (MOS) 11B (light weapons infantryman) and later MOS 44C (welder). He served in MOS 11B in Vietnam from 28 March 1968 to 9 May 1969 and he served in MOS 44C in Vietnam from 28 July 1970 to 26 July 1971. On 28 July 1971, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.
3. There is no evidence that shows he was diagnosed with any medical or mental condition prior to his release from active duty on 28 July 1971.
4. He provided a letter from DFAS, dated 21 April 2011, pertaining to his claim for improper payment of basic pay accrued on 28 July 1971. The letter states:
* His claim was returned
* The date of receipt is the controlling factor in considering his claim
* Since his claim for improper payment of basic pay occurred on 28 July 1971, and it was received more than 6 years after the date it occurred, it is barred from consideration by the provisions of the Barring Act
5. He provides military pay vouchers for the period between August 1967 and October 1968.
6. Letters provided by his physician state:
* he has been treated for Post Traumatic Stress Disorder incurred due Vietnam combat trauma
* he has been diagnosed with Parkinson's disease and is developing additional ambulatory difficulties
7. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.
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. He contends he was unable to submit a claim to DFAS in a timely manner due to his physical and mental condition as a result of his service in Vietnam. However, there is no evidence which shows he was diagnosed with a mental or medical condition prior to his release from active duty on 28 July 1971.
2. He contends he served as tunnel rat in Vietnam because of his height and weight and he feels he was underpaid for the position. However, since it is now over 40 years after he was separated, the doctrine of laches is invoked in his 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) AR20110013849
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