IN THE CASE OF:	  

		BOARD DATE:  3 September 2013

		DOCKET NUMBER:  AR20130001255 


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, that her military service records be corrected to show she enlisted in the military in the pay grade of E-3.  In addition, she requests back pay.

2.  The applicant states she was promoted to the grade of E-3 before entering the military by attending 4 years of Junior Reserve Officers' Training Corps (JROTC).  Upon entering the military, she was paid in the pay grade of E-1.  She states that she constantly complained about the issue but was ignored. 

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Commander's Certificate of Achievement, dated 
15 September 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 is insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service records contain a DA Form 134 (Military Training Certificate), dated 5 June 1990, showing she successfully completed
3 years of instruction in JROTC.  The certificate shows that she was recommended for enlistment in the military at the grade of E-3.  The document was verified by the Director of Army Instruction.

3.  The applicant's military service records contain a DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 7 July 1990.  Section IV - Remarks shows the entry "Huffman High JROTC [Birmingham] AL 
4 years."  The document was verified by the applicant's recruiter.

4.  The applicant's military service records contain a DD Form 4/1 
(Enlistment/Reenlistment Document), dated 13 July 1990, showing she enlisted in the U.S. Army Reserve (USAR) in the pay grade of E-1.

5.  She entered active duty for training (ADT) at Fort Leonard Wood, MO, on 
28 November 1990.  

6.  She was released from ADT on 14 May 1991 after successfully completing training.  The DD Form 214 she was issued shows in:

* items 4a and 4b "PV1" and "E-1" 
* item 12h (Effective Date of Pay Grade) "90  07  13"

7.  Item 18 (Appointments and Reductions) of her DA Form 2-1 (Personnel Qualification Record) lists the following:

* pay grade/rank private E-1 - 13 July 1990
* pay grade/rank private first class E-3 - 10 October 1990
* pay grade/rank specialist E-4 - 9 October 1992

8.  Orders D-07-844685, dated 14 July 1998, issued by the U.S. Army Reserve Personnel Command, show that the applicant was honorably discharged from the USAR.



9.  The applicant provides a Commander's Certificate of Achievement, dated 
15 September 1990, that shows she successfully completed JROTC and that she was to be advanced to the grade of E-3 upon her enlistment in the Regular Army.

10.  In an email, dated 26 August 2013, an official from the Defense Finance and Accounting Service (DFAS). indicated that the applicant could not be found in the Payroll Locator System (PLS).

11.  Army Regulation 601-201 (Personnel Procurement - Active and Reserve
Components Enlistment Program), in effect at the time, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the USAR for enlistment on or after the effective date of this regulation.  Chapter 2, Table 2-3, Rule B-1, states:

	a.  A non-prior service applicant who has taken part in JROTC or National Defense Cadet Corps programs and has successfully completed the first 2, 3, or 4 years of a prescribed Army, Navy, Marine Corps, or Air Force secondary education division program, but has not been recommended in writing by the senior service instructor (SSI) concerned, may enlist at any time in pay grade 
E-2. 

	b.  An applicant who has completed the first 3 of 4 years of a prescribed Army, Navy, Marine Corps, or Air Force program and has been recommended in writing by the SSI concerned, may enlist at any time in pay grade E-3.  

   c.  The applicant must present one of the prescribed forms shown below to support entitlement for a higher pay grade.  The proper form must be completed by the applicant's JROTC or SROTC senior instructor, and presented for taking part in the following.  For Army ROTC, DA Form 134 or school transcript verifying number of years completed satisfied this requirement.

12.  Army Regulation 145-2 (JROTC - Organization, Administration, Operation, and Support) provides command policy and guidance for the JROTC program.  It states a JROTC cadet may qualify for the following grade status on enlistment in a Regular or Reserve Component of the Army and the Army National Guard.

* The rank of PV2/E-2 if member has successfully completed 1 year of a prescribed JROTC course
* The rank of PFC/E-3 if member has successfully completed a minimum of 3 years, is otherwise qualified and recommended by the Senior Army

Instructor; if determined not entitled to the rank of PFC/E-3, then the rank of PV2/E-2 minimum
* JROTC cadets who have completed a 3 or 4 year JROTC course qualify for the rank of PV2/E-2, as a minimum, on enlistment in an active or Reserve Component of the Armed Forces other than Army

* A DA Form 134 or 254 must be presented by the member to support a higher enlistment pay grade; if the forms are missing at the time of entry on active duty but are presented to the personnel officer some time after entry on active duty, administrative data will be adjusted accordingly

13.  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.  Evidence of record shows the applicant enlisted in the USAR for an 8-year term of service at the pay grade of E-1, effective 13 July 1990.  Her DA Form 
134 was verified by the Director of Army Instruction and her DD Form 
1966 verified by her recruiter shows that she completed 3 years of JROTC.  She was recommended for enlistment in the grade of E-3.  For some unknown reason she was not enlisted in that pay grade.  

2.  Her DA Form 2-1 shows that she was promoted to the pay grade of E-3 on 
10 October 1990, 3 months after enlisting in the USAR.  She was later promoted to the pay grade of E-4 on 9 October 1992.

3.  She contends she is owed back pay.  However, DFAS indicated that she could not be found in the PLS.  Since there are no financial records available for review there is an insufficient basis on which to change her date of rank for back pay in this case.

4.  The lapse of 20 years in her case has allowed the loss of any enlistment/pay information to intervene.  An arbitrary ruling in her favor, without knowing what her records would have shown, would cause prejudice to the Government.  Had she applied to the ABCMR in a timely manner an equitable decision could possibly have been made in her case.  However, since it is now 20 years after her separation, the doctrine of laches is invoked in her 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)                                         AR20130001255





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ABCMR Record of Proceedings (cont)                                         AR20130001255



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