dissenting in part:
Agreeing with the court that the defense of laches can be raised in military pay suits as well as civilian pay litigation, I would nevertheless apply here the rule of Chappelle v. United States, 168 Ct. Cl. 362 (1964), to hold that plaintiff is not barred by laches from recovery of active duty pay for the period from his discharge (May 20, 1964) to the end of his then enlistment term (July 27, 1967). That is the only period for which plaintiff could possibly recover. See O'Callahan v. United States, 196 Ct. Cl. 556, 451 F. 2d 1390, 1391-92 (1971). We cannot say that he would have been reenlisted in 1967 and allowed to remain in the service until he had 20 years’ service and qualified for transfer to the Fleet Deserve under 10 U.S.C. § 6330. He had no such right as a matter of law and the Navy could, and might well, have refused to continue him. See O’Callahan v. United States, supra, 196 Ct. Cl. at 560-63, 451 F. 2d at 1392-93 (1971); Davis v. United States, 196 Ct. Cl. 517, 523 (1971), cert. denied, 405 U.S. 1046 (1972).
On this view, I would apply Chappelle because the slightly more than three years delay (May 20,1964-July 27,1967) is not ordinarily enough to invoke laches under our current interpretation of that defense, and I see no real prejudice to the Government. In military cases there is rarely the problem of paying two individuals for performing one job, and there is no such suggestion here. Nor is there any possibility of restoration to the service. There is also no question of prejudice with respect to the disposition of the case in this court since it is before us on cross motions for summary judgment on the administrative record, and no trial will be held or evidence produced here. The possibility of fading memories or loss of evidence is therefore immaterial.
*660The majority think that plaintiff’s delay may prevent the Navy from clearing its own records in a new and proper administrative proceeding. This does not seem to me at all a “prejudice” of the type we should consider with respect to laches. Plaintiff sues on the administrative record actually made, and that record can never be destroyed or obliterated for it was on the basis of that record that plaintiff was discharged. That is the record the court must consider on these motions. If the Navy wished, for its own reasons of honor or otherwise, to “re-do” the proceedings against plaintiff, that would not and could not in the slightest affect his present claim which stands or falls on the record actually made. By the same token, the inability (or diminished ability) of the Navy to “re-do” the proceedings, for purposes having nothing to do with plaintiff’s claim in this court, should not affect our evaluation of the defense of laches which is raised against that court claim. In considering when to bring suit, plaintiffs should not have to worry that, if they prevail here, the service may want to run through the proceedings over again for its own internal ends.1
Since the court does not consider the merits of the claim, I limit myself to the brief statement that, in my view, plaintiff was invalidly discharged and is entitled to recover active duty pay (less offsets) until July 1967. My grounds are: (1) he was entitled under the Navy directive to the court-martial he requested, and should not have been discharged administratively; and (2) in any event, the proceedings before the Field Board of Officers were fatally defective, violating the applicable regulation, in that available live witnesses against plaintiff were not produced and the unauthenticated transcript of the tape-recordings was used. Cf. Glidden v. United States, 185 Ct. Cl. 515 (1968); Fletcher v. United States, 183 Ct. Cl. 1, 7-12, 392 F. 2d 266, 269-72 (1968).
KinsrziG, Judge, joins in the foregoing opinion dissenting in part.I see no reason, moreover, why the Navy could not have begun to “re-do" the proceedings while the matter was proceeding through the administrative process.