IN THE CASE OF:
BOARD DATE: 2 August 2012
DOCKET NUMBER: AR20120001227
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 his rank be reinstated to specialist four/E-4 and he be reimbursed all pay and allowances.
2. The applicant states:
* He wants to be reimbursed all pay and allowances lost from the date of his demotion to his separation date
* He reported to the doctor in Korea complaining of problems with chronic hearing loss, tinnitus, and stress
* The doctor ordered him to stay on the base
* His commanding officer saw him the next day and ordered him back to the Tactical Operations Center (TOC)
* He disobeyed his commanding officer because he thought the doctor's orders would counter his commanding officer's orders
3. The applicant provides no documentary evidence.
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 21 August 1970 for a period of 2 years. He completed his training and was awarded military occupational specialty 16D (Hawk Missile Crewman). He arrived in Korea on 17 January 1971. He was appointed to E-4 on 20 April 1971.
3. Orders, dated 20 October 1971, reduced him to private first class/E-3 effective 5 September 1971 for misconduct (Article 15). His Article 15 is not available, but records indicate he was punished for disobeying a lawful order from his battery commanding officer.
4. He departed Korea on 12 February 1972. On 7 March 1972, he was honorably released from active duty in the rank of private first class and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.
5. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was:
* appointed to E-4 effective 20 April 1971
* reduced to E-3 effective 5 September 1971
6. There is no evidence of record that shows he was appointed to pay grade E-4 after 5 September 1971.
7. The doctrine of laches is defined by Blacks 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's contentions were carefully considered. However, his military records show he was reduced from E-4 to E-3 on 5 September 1971. There is no evidence of record that shows he was appointed to pay grade E-4 after
5 September 1971 or prior to his separation on 7 March 1972.
2. It is now more than 40 years after the applicants reduction. The Article 15 that reduced him is not available. An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government and the doctrine of laches is invoked in his case.
3. Therefore, there is insufficient evidence with which to grant the 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) AR20120001227
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ABCMR Record of Proceedings (cont) AR20120001227
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