IN THE CASE OF:
BOARD DATE: 9 September 2014
DOCKET NUMBER: AR20140001489
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 he receive back pay for his spouse.
2. The applicant states while he was in the Army he got married on 3 July 1970. He states he never received his money for being married and he is requesting his back pay.
3. The applicant provides copies of his Certificate of Marriage and his 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 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 into the Army of the United States on 2 July 1969. He completed training as a decontamination specialist.
3. The applicant provides a copy of his Certificate of Marriage which shows he got married on 3 July 1970.
4. He arrived in Vietnam on 27 July 1970. He departed Vietnam en-route to the United States on 25 May 1971.
5. On 28 May 1971, the applicant was honorably released from active duty (REFRAD) as an overseas returnee. He completed 1 year, 10 months, and 27 days of total active service.
6. There is no evidence in the available record showing that the applicant is entitled to back pay as a result of getting married.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. His supporting evidence has been considered.
2. There is no evidence in the available record and the applicant has not provided any evidence showing that he did not received all the pay to which he was entitled while he was in the Army.
3. The doctrine of laches is defined by Black's Law Dictionary as the neglect to assert a right or claim which, taken together with the passage of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.
4. It has been over 40 years since the applicant's REFRAD. Available records are inadequate to confirm or deny the applicant's contention that he is due back pay for having a wife while he was in the Army. Due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.
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) AR20140001489
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