DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TEE
Docket No. 2904-10
20 Jun 11
This is in response to your DD Form 149 dated 26 February 2010
and your DD Form 149 dated 9 March 2010 which were received by
this Board on 18 March 2010.
Your applications claim, essentially, that you are entitled to
additional reimbursement on claims that were previously
adjudicated based on your service on active duty between,
approximately May 2001 and May 2002.
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 is in the interests of justice to do so.
Your application shows some evidence that you made e-mail
inguiries about your claim in late 2004, early 2005 and again in
summer 2007. You also made a complaint to the DoD Inspector
General in late 2009. However, the records show that long
stretches of time elapsed between these inquiries. There is no
evidence that you have ever submitted a reclaim or appeal to the
Defense Office of Hearings and Appeals under section 080702 of
the DoD Financial Management Regulations. And no application
for correction was received by this Board until March 2010.
Review of the available records in your case has revealed that,
due to the passage of time, much of the documentation
pertaining to the prior adjudication of your claims for
reimbursement no longer exists. The passage of time has
adversely impacted on the Board’s ability to fully examine the
critical records that govern your allegations. A more timely
application with this Board would likely have provided the Board
the opportunity to retrieve and review those records and resolve
Doc No: 2904-10
the merits of your claim. However, that opportunity has been
lost due to the delay in submitting your application. Under
these circumstances, the Board found that it is not in the
interests of justice to excuse the three year time limit in your
particular case. Additionally, the Board found that your
application should be barred by the related 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. In
your case, no application was submitted to this Board until
March 2010. Over the years between 2002 and 2010, records
pertaining to your prior claims for reimbursement have been lost
or destroyed, memories have faded and personnel have changed.
The delay, which must be attributable to you, has prejudiced the
Navy's ability to respond to the issues you have raised in your
application. Under these circumstances, the Board found that it
would not be appropriate to excuse your delay in submitting an
application to this Board.
Notwithstanding the above, to the extent possible, based on
existing records, a three-member panel of the Board for
Correction of Naval Records, sitting in executive session,
considered the allegations contained in your applications on 20
June 2011. Your allegations of error and injustice were
reviewed in accordance with administrative regulations and
procedures applicable 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 CNO memorandum 5400 Ser N130C1/11U0276 of
31 March 2011, a copy of which is attached and was previously
furnished to you.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted is
insufficient 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.
The Board agreed with the CNO (Code N130) that documents
provided in your application do not support your claims to
entitlement to additional reimbursement. Accordingly, your
application has been denied. The names and votes of the members
of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
Doc No: 2904-10
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.
Sincerely,
W. Dean AD
Executive Dj ake
Enclosure
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