BOARD DATE: 8 November 2012 DOCKET NUMBER: AR20120008427 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 back pay and allowances for the period beginning June 1945 through January 1946. 2. He states he was a member of the 3163rd Signal Service Company during World War II. His group was called the advanced echelon and their duty was to establish and maintain a secure "secret" radio system. 3. He adds that during the operation in France, Germany, and Belgium, his group was never visited by any officers (commissioned and noncommissioned) from the 3163rd Signal Service Company or any other company, platoon, or squad. 4. The applicant recently learned that the 3163rd Signal Service Company returned to the United States on 10 June 1945; however, the advanced echelon group was not permitted to return until January 1946. This 6-month delay was to provide communication support for the flag officers who were managing the withdrawal of the allied forces from Europe. 5. He contends that he did not receive any pay during this 6-month period because the books must have been closed by the 3163rd Signal Service Company. After his return to Syracuse, NY, in mid-January 1946, he tried to reach someone in the post-war Army structure to obtain his missing pay to no avail. 6. He also contends that his group did not receive any mail, food or supplies during the 6 month period, but had to literally steal the needed rations from a quartermaster depot they had found. 7. The applicant provides: * letter, dated 14 November 2011 * WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) * Honorable Discharge Certificate 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's complete military records were not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed his records were lost in that fire. However, there were sufficient documents in a reconstructed record and the documents which he provides to allow the Board to conduct a fair and impartial review of the case. 3. His WD AGO Form 53-55 shows the following information: * he enlisted in the U.S. Army Enlisted Reserve Corps on 3 November 1942 and entered active duty on 9 March 1943 * the applicant served in military occupational specialty 648 (Radio Repairman) * he served in the European theater of operations (ETO) from 13 November 1944 to 30 June 1945, a period of 8 months and 10 days * his date of arrival in the United States is shown as 13 July 1945 * the applicant received $132.73 in mustering out pay (MOP) and other pay entitlements on 11 January 1946, the date of his discharge * he signed this form indicating the information was correct on the date of separation 4. The applicant's pay records are not available for the Board's review. 5. 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. 7. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's WD AGO Form 53-55 shows he served 8 months and 10 days in the ETO during World War II and returned to the United States on 13 July 1945. However, without evidence to the contrary, it must be presumed he received all pay and allowances during the period he was in the ETO. 2. His separation document also shows he received MOP and other pay and allowances at the time of his discharge on 11 January 1946. There is no indication and he has not provided sufficient evidence to show the information contained on the WD AGO Form 53-55 is incorrect. 3. The lapse of 66 years since his discharge has allowed the 1973 fire to intervene. An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the government. Had he applied to the ABCMR by 1972, 26 years after his separation (even though that date would have been beyond the ABCMR's statute of limitations), an equitable decision could possibly have been made in his case. However, since it is now over 35 years after the fire, the doctrine of laches must be invoked in his case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x___ ___x_____ ___x_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. __________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) AR20120008427 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120008427 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1