DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
LCC
Doc. No. 478-09
21 Jan 190
This is in reference to your application for correction of your
naval record pursuant to the provisions of 10 use 1552.
A three-member panel of the Board for Correction of Naval
‘Records, sitting in executive session, considered your
application on 19 January 2010. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicabie to the proceedings of this
Board. Documentary material considered by the Board consisted
of your application, together with all material submitted in
support thereof, your naval record and applicable statutes,
regulations and policies. In addition, the Board considered the
advisory opinion furnished by CMC 1070 JAM3 of 6 November 2009,
a copy of which is attached.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
‘nsufficient to establish the existence of probable material
error or injustice. In this connection, the Board substantially
concurred with the comments contained in the advisory opinion.
Under the regulations governing this Board, the burden is on
you, the applicant, to demonstrate sufficient evidence of an
error or injustice. The documents you submitted do not support
your claim that you were underpaid prior to your discharge in
1991. Additionally, the Board noted that the pay error you
claim is alleged to have occurred over 19 years ago. Under the
rules governing this Board, an application for a correction of a.
naval record must be made within three years after the discovery
of the alleged error. Failure to file within the prescribed
three years may be excused in cases where the Board finds that
it igs in the interests of justice to do so. After careful and
Docket No. 478-09
conscientious consideration, the Board found that it is not in
the interests of justice to excuse the three year time limit in
your particular case. The Board determined that your
application should also be barred by the common law doctrine of
laches. Laches is a legal doctrine that essentially states that
a right or claim will not be allowed if a delay in asserting the
right or claim has prejudiced another party. Laches is based on
the legal maxim that equity aids the vigilant and not those who
procrastinate regarding their rights. In your case, you
neglected to assert your claim for an inordinately long period
of time without justificatior. You have provided no evidence as
to why you did not seek to have the alleged error corrected
earlier. For the reasons stated above, your application has
been denied.
After the Board made their determination and prior to the
preparation of this letter, you called to inquire about the
status of your case and other matters. In response to the
questions you raised in that phone call, the following
information is provided. The members of the Board that heard
your case were Messrs. George, Pfeiffer, Zsalman. The vote of
the Board was unanimous to deny. You did not elect to request a
personal appearance before the Board, therefore no personal
appearance was considered. Your case was reviewed in accordance
with administrative regulations and procedures applicable to the
proceedings of this Board. Further information about those
procedures may be found in SECNAVINST 5420.193 and at
http: //www.donhg navy.mil/benr/benr.htm.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board. In this regard, it is also important to keep in mind
that a presumption of regularity attaches to all official
records. Consequently, when applying for a correction of an
official naval record, the burden is on the applicant to
demonstrate the existence of probable material error or
injustice.
\,
\3 Dans
Executive 1recttor
Enclosure
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