IN THE CASE OF:
BOARD DATE: 2 January 2014
DOCKET NUMBER: AR20130007610
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he was promoted to the rank and pay grade of specialist five (SP5)/E-5 and that he be paid back pay and allowances due him.
2. The applicant states that he recently found orders promoting him to the pay grade of E-5 that he did not know about and believes his DD Form 214 should be corrected and that he should be paid back pay and allowances.
3. The applicant provides copies of his promotion orders and DD Form 214.
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 was inducted on 24 March 1969. He completed his basic training at Fort Polk, Louisiana and his advanced individual training as a clerk at Fort Hood, Texas before departing for Vietnam on 13 January 1970.
3. He arrived in Vietnam on 26 February 1970 and served until he departed on 11 January 1971 and was transferred to Oakland Army Base, California where he was honorably released from active duty (REFRAD) in the pay grade of E-4 on 12 January 1971. Items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) of his DD Form 214 shows his rank and grade as Specialist Four (SP4), E-4.
4. The orders provided by the applicant show that Special Orders Number 13 published by Headquarters, 2d Armored Division on 13 January 1970 promoted the applicant to the rank of SP5 effective 10 January 1970.
5. A review of his official records failed to reveal a copy of the promotion orders or annotations in his records to show that the orders were ever received for inclusion in his records.
6. 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 has provided duly authenticated orders issued on the day he departed for assignment to Vietnam showing he was promoted to the rank and pay grade of SP5 E-5 on 10 January 1970.
2. It appears that he is entitled to have his DD Form 214 corrected to show his rank, pay grade and date of rank (DOR) corrected on his DD Form 214.
3. However, he comes to the Board 43+ years after the effective date of his promotion and it is not known if he was or was not paid E-5 pay at the time. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
* deleting the entries "SP4 E4" in items 5a and 5b of his DD Form 214
* deleting the entry "25 SEP 69" in item 6 of his DD Form 214
* adding the entries "SP5 E5" in items 5a and 5b of his DD Form 214
* adding the entry "10 JAN 70" in Item 6 of his DD Form 214
2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertain to paying him back pay and allowances.
3.. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his service in arms.
_____________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) AR20130007610
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ABCMR Record of Proceedings (cont) AR20130007610
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