PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 September 2000                   
	DOCKET NUMBER:   AR2000041455

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his Report of Transfer or Discharge, DD Form 214, and his discharge certificate be corrected to show his rank as major.  He also requests any pay adjustment due.  The applicant makes no additional statement.  He provides his discharge certificate, his separation orders, and a letter from his commander dated 10 March 1969 as supporting evidence.

3.  The applicant’s military records show that he entered active duty out of the Reserve Officer Training Corps on 3 March 1961.  He was promoted to captain on 17 September 1964.

4.  On 24 October 1968, the applicant tendered his unqualified resignation due to having twice failed to be selected for promotion to major.  On 31 December 1968, the Chief, Military Police Branch, Officer Personnel Division recommended approval of the applicant’s request.  The Chief noted that the applicant had been passed over by the major AUS (Army of the United States) February 1968 board and the “SFRG” (acronym unknown) September 1968 board.  His request for resignation was approved on 7 January 1969.  He was discharged on 31 January 1969. 

5.  Special Orders 44, Department of the Army, dated 6 March 1969 promoted the applicant to major with a date of rank of 15 October 1968.  On 10 March 1969, the applicant’s former commander forwarded a copy of the Special Orders to him, gave his opinion that the applicant was due some back pay as a major from October until the date of his separation, and advised him to communicate with Office of Personnel Operations if he was interested in returning to active duty.

6.  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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

7.  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.

CONCLUSIONS:

1.  The Board concludes that a Government error occurred in this case.

2.  At this point in time the actual circumstances surrounding the applicant’s supposed two-time failure for selection for promotion to major cannot be determined.  It seems implausible that the applicant’s Branch Chief would not have been aware that something may have been “unusual” about the “SFRG” September 1968 major promotion board.  It appears that, rather than recommending approval of the applicant’s resignation, the Branch Chief should have recommended that it be held pending the resolution of whatever problem the board may have had.  However, again, the circumstances cannot be determined.

3.  It would be in the interest of justice to show the applicant was separated in the rank and grade of major, 04.

4.  The evidence provided by the applicant shows that he was aware in March 1969 of the error and that he might be due back pay.  There is no evidence to show that he attempted to obtain that back pay.  Thirty-one years have now passed and the Board concludes that granting back pay at this point in time would offer benefits to the applicant without the Army receiving reciprocal benefits in the way of his performing duties at the increased rank and responsibility.  Due to the passage of time, favorable consideration of the applicant’s request would be barred by laches if the statute of limitations were waived.  The Board concludes that it is not in the interest of justice to waive the statute.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was discharged on 31 January 1969 in the rank and grade of major, 0-4 with a date of rank of 15 October 1968 and that he be issued an Honorable Discharge Certificate showing his rank as major.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__cla___  __wtm___  __tbr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Celia L. Adolphi
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041455	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.