BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120003367 


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 that his job title as entered in item 23a (Specialty Number and Title) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show “Acting Sergeant” or “Motor Sergeant” instead of “Wheeled Vehicle Repairman.”  He also requests, in effect, all due back pay as a result of this correction. 

2.  He states he had all the responsibilities of a Soldier in the grade of sergeant (SGT)/E-5, but only received the pay of a specialist four (SP4)/E-4.  He was the Service Officer for Post 191 for 2 years and helped a fellow veteran get a proper burial. 

3.  The applicant provides:

* a DD Form 214
* letter orders
* an Honorable Discharge Certificate
* a letter from the Social Security Administration
* a letter from the American Legion

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.  He enlisted in the Regular Army on 17 May 1969.  His DA Form 20 (Enlisted Qualification Record) shows he completed training in military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic) on 18 July 1969.  This form also contains the following entries:

* Item 22 (MOSs) – 63B4O (Wheeled Vehicle Mechanic) is listed as his primary MOS (PMOS)
* Item 33 (Appointments and Reductions) – he was promoted to the grade of SGT/E-5 on 1 June 1971 by Headquarters and Headquarters Battery (HHB), 94th Artillery Group, Special Orders (SO) Number 96, dated 
   1 June 1971
* Item 38 (Record of Assignments) – he served as a Motor Sergeant from 31 January to 2 June 1974 while assigned with the Maryland Army National Guard (MDARNG)

3.  His record contains a copy of HHB, SO Number 96 which shows he was awarded PMOS 63B4O at the time of his promotion to the grade of SGT/E-5. 

4.  The applicant was honorably released from active duty (REFRAD) on 
21 January 1972 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for completion of his Reserve service obligation.  His military pay record is not available for review and there is no indication on his 
DD Form 214 that his final pay was less than the grade shown on this form.  This form also shows the following entries:

* Item 5a (Grade, Rate, or Rank) – SGT
* Item 5b (Pay Grade) – E-5
* Item 6 (Date of Rank) – 1 June 1971
* Item 23a – Wheeled Vehicle Repairman

5.  He provided Headquarters, First U.S. Army, Letter Orders Number 8-789, dated 15 August 1975.  These orders show he was honorably discharged from the USAR on 15 August 1975.  His grade at the time of discharge was SGT/E-5 and his MOS was shown as 63B4O.  

6.  He also provided an Honorable Discharge Certificate which shows he was discharged from the MDARNG on 30 June 1986 in the grade of SGT/E-5. 

7.  The letter he provided from the American Legion shows he requested recoupment of pay for his promotion to “Acting Sergeant.”  The applicant was directed to submit his request to the ABCMR. 

8.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The version of the regulation in effect at the time of the applicant's REFRAD, stipulated the DA Form 20 and all available records, documents, and orders would be used to prepare the DD Form 214.  The instructions for completing item 23a stated to enter the primary specialty number and title.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Chapter 2 contains guidance on the functions of the ABCMR.  It states the ABCMR will decide cases on the evidence of record and begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

10.  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's DA Form 20 and MOS orders in his record confirm he was trained in and awarded MOS 63B on 18 July 1969.  His Principal Duty is shown as a Wheeled Vehicle Mechanic while serving in this MOS and this is evidenced by entries in item 38 of his DA Form 20.  

2.  Although item 38 of his DA Form 20 shows he performed duties as a “Motor Sergeant,” it was over 2 years after his REFRAD.  In addition, item 23a of his  DD Form 214 is meant to show the MOS title and not reflect the duty title; therefore, his DD Form 214 is correct as shown. 

3.  He contends that although he had all the responsibilities of a SGT/E-5 he was only being paid as a SP4/E-4.  The evidence confirms he was promoted to the grade of SGT/E-5 on 1 June 1971 which is correctly reflected on his DD Form 214.  
4.  There is no evidence and he has not provided any evidence to show he was not paid at the rate and pay grade of SGT/E-5 at the time of his separation.  More than 40 years have lapsed and, therefore, the doctrine of laches is invoked in his case.  An arbitrary ruling in his favor, without knowing what his military pay records would have shown, would cause prejudice to the Government.  Had he applied to the ABCMR within the ABCMR’s statute of limitations, an equitable decision could possibly have been made in his case.  

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)                                         AR20120003367





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ABCMR Record of Proceedings (cont)                                         AR20120003367



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