IN THE CASE OF: BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150005879 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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his rank/grade as specialist four (SP4)/E-4 and compensation for lost pay with interest. 2. The applicant states: a. He received an Article 15 on 28 July 1968 while serving as an infantryman in the Republic of Vietnam. He received the Article 15 for being absent without leave for 6 days upon returning from temporary duty as a body escort in the continental United States. b. His reduction orders were not processed until 28 December 1968; however, his date of rank for the reduction was backdated to 28 July 1968. He was not presented with this information until 3 February 1969, upon his departure from the Republic of Vietnam. c. Throughout this 5-month period he was performing SP4 duties and he was recommended for promotion to sergeant/E-5. He remained in active ground combat and completed his tour on 4 February 1969, after which he transferred to Fort Ord, California and served until he was released from active duty on 11 June 1969, in the rank/grade of private first class (PFC)/E-3. d. After his service in the Republic of Vietnam, his pay was docked and he only received $10.00 per month "health and comfort pay" until his separation. He contends the Army prevented his opportunity for promotion and caused him financial loss and humiliation by unjustly delaying his orders for reduction for 5 months due to incompetent or intentional delay in order to humiliate and punish him. e. He is a Purple Heart recipient and he served with distinction in the Republic of Vietnam. He claims the Army had a responsibility to process his orders in a timely manner and they failed to do so. 3. The applicant provides no additional evidence in support of his request. 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 25 August 1967. He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman). He served in the Republic of Vietnam during the period 9 February 1968 through 4 February 1969. 3. Special Orders Number 49, issued by Headquarters, 9th Infantry Division on 18 February 1968, promoted him to the rank/grade of PFC/E-3 on 18 February 1968. 4. Special Orders Number 140, issued by Headquarters, 9th Infantry Division on 19 May 1968, promoted him to the rank/grade of SP4/E-4 on 19 May 1968. 5. On 31 August 1968, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for, without authority, absenting himself from his unit for the period 16 through 22 July 1968. His punishment consisted of a reduction in rank/grade to PFC/E-3 and forfeiture of $65.00 per month for one month. 6. Special Orders 339, issued by Headquarters, 9th Infantry Division on 4 December 1968, reduced him in rank/grade to PFC/E-3 effective 31 August 1968. 7. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was assigned to Company G, 41st Infantry Regiment, Fort Ord, California effective 11 March 1969. 8. His record is void of any evidence that shows he was recommended for promotion or promoted to the rank/grade of SP4/E-4 subsequent to his reduction to PFC/E-3. 9. On 11 June 1969, the applicant was honorably released from active duty in the rank/grade of PFC/E-3 and transferred to the U.S. Army Reserve Control Group (Annual Training). His DD Form 214 shows he completed 1 year, 9 months, and 11 days of creditable active military service with lost time during the period 16 through 21 July 1968. 10. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM). Chapter 3, of the regulation in effect at the time, implemented and amplified Article 15 of the UCMJ and Chapter XXVI of the MCM. Paragraph 3-4 states the use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. NJP may be imposed to correct, educate, and reform offenders who have shown they cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. 11. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This 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. 12. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 13. Black's Law Dictionary defines the doctrine of laches 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his DD Form 214 should be corrected to show he was released from active duty in the rank/grade of SP4/E-4 in addition to receiving compensation for lost pay with interest. 2. The evidence of record shows he accepted NJP under the provisions of Article 15 of the UCMJ for, without authority, absenting himself from his unit during the period 16 through 22 July 1968. His punishment consisted of a reduction in rank/grade to PFC/E-3 and forfeiture of $65.00 per month for one month. There is no evidence and he did not provide any evidence that shows the Article 15 was rendered unjustly or in error. 3. Notwithstanding his contentions pertaining to the timeliness of his reduction, his record is void of any evidence that shows he was recommended for promotion or promoted to the rank/grade of SP4/E-4 subsequent to his reduction to PFC/E-3. His dissatisfaction with the processing and outcome of the Article 15 does not invalidate it. 4. The applicant has waited over 45 years to establish his claim. Due to the passage of time, and regardless of the evidence contained in the applicant's official military record as stated above, favorable consideration of his request for back pay would be 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) AR20150005879 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005879 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1