MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001059915


         I certify that hereinafter is recorded the record of consideration 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. Arthur A. Omartian		Member
Mr. Harry B. Oberg		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

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

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APPLICANT REQUESTS: That he receive the disability compensation due his deceased grandfather, a former service member (FSM) who served during World War I. He states that his grandfather, the FSM, was gassed during World War I and died from his injuries soon after his discharge. In 1999, the applicant was watching CNN when a feature story spoke of a $3,500.00 monetary benefit authorized by Congress pursuant to the Act of 10 April 1928, 45 Statute 413, paid to wounded World War I veterans who were previously uncompensated for their losses. Most World War I veterans did not receive the benefit until 1944. Unfortunately, the FSM was very ill from being gassed and died from that injury in 1928. Needless to say, the FSM was too ill to pursue the claim and he would not have profited anyway because the claims were not paid until 1944. When the FSM died, the applicant’s father received his estate. The applicant, in turn, is his father’s sole beneficiary. He feels he is entitled to collect the benefit, plus interest, that the FSM was not given a legitimate chance to claim. He submits the FSM’s enlistment record and honorable discharge certificate, the FSM’s death certificate, and his father’s birth and death certificates as supporting evidence. He has counsel but counsel makes no additional contention.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The FSM's military records are not available. Information contained herein was obtained from alternate sources.

The FSM entered the Army on 21 September 1917. He was gassed in France in October 1918. He was honorably discharged on 21 March 1919. He died on 28 March 1931. His death certificate reveals he worked in a cotton mill for 15 years and died at age 35 from influenza with pneumonia as a contributing factor His son, the applicant’s father, died on 13 January 1991.

The applicant contacted his Congressional Representative, who contacted the Defense Finance and Accounting Service (DFAS). By an undated letter, the Director, DFAS – Denver Center, advised the Member of Congress DFAS has no record of a prior claim from the FSM; that under the Barring Act the FSM had 6 years from 1919 to submit a claim for the bonus; and since the FSM did not submit a claim within the prescribed period DFAS lacked authority under the Barring Act to pay. (This was later clarified when DFAS explained to a legal advisor to the Army Review Boards Agency that DFAS has no records going back to World War I or the post-World War I period.)

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The later period of World War I and the post-World War I era had provided numerous compensation opportunities for servicemen and their families. This included the War Risk Insurance Act of 1917, 43 Statute 607; War Insurance Act of 1918, 40 Statute 555; World War Veterans’ Act of 1919, 41 Statute 371; World War Veterans Act of 1924, 43 Stat. 607; and the War Risk Bureau. The military tradition has been that service members have an obligation to assist in their welfare by taking affirmative steps regarding benefits after they have been notified of those benefits. For example, the World War Veterans Act of 1924, 43 Statute 607 was publicized by publishing explanatory pamphlets to be distributed by the Director of the United States Veteran’s Bureau as he determined to be most effective to inform veterans and their dependents of their rights under this Act. The veterans and/or their beneficiaries were then able to make an informed application for the provided benefits.

A review of 45 Statute 413 reveals Congress authorized the Comptroller General to submit to Congress a report of certain claims and demands against the United States. It is not an authorization of a bonus to be paid to World War I veterans.

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. Congress enacted the latest version of the statute of limitations in 1951, through section 207 of Public Law 82-220, 65 Statute 655 (1951).

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.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered during the post-World War I era. The time for the applicant to file a request for correction of any error or injustice expired, assuming a grace period out of an abundance of caution, in 1957, six years after passage of the latest version of the Barring Statute and almost 40 years after his grandfather’s discharge.

1. The application is dated 18 May 2001. The applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

2. Applying the objections he raised regarding the Barring Act to the Board’s statute of limitations, the lynchpin of applicant’s argument is his grandfather was unaware of the bonus and was “too ill to pursue the claim” following World War I. The evidence does not support the applicant’s contention.

a. First, the applicant has not shown that he knows whether or not his grandfather was aware of any bonus. The Board’s knowledge of military information allows it to conclude that if Congress were issuing a bonus to veterans, it would have been publicized, as the World War Veterans Act of 1924, 43 Statute 607 was publicized by the Veterans Bureau. The Board presumes veterans, family members, and friends would reasonably have heard of it and mentioned it. The preponderance of the evidence renders it imprudent for the Board to accept applicant’s 1999 speculation as to what his grandfather did not know in 1919 and thereafter.

b. Second, the applicant would have the Board believe that his grandfather was too sickly from the gassing to pursue the claim. This is contradicted by the grandfather’s death certificate which reveals he was a textile worker in a cotton mill for 15 years, including prior to his death. He died 13 years after he was gassed, 3 years after passage of the Act of 10 April 1928, and an additional several years after passage of other post-World War I legislation. If his grandfather could work at a textile factory, then it would appear to the Board he was not too ill to pursue a claim or have others do it for him.

c. Third, DFAS’ indication it has no record of a payment to applicant is not evidence that he was, in fact, not paid. Clarification of DFAS’ statement indicates that it literally has no record of whether the grandfather was paid. Based upon the clarification, the Board does not view this as a statement by DFAS that it reviewed existing records of World War I payments and saw nothing pertaining to the grandfather. Rather, the Board’s understanding is DFAS does not possess records of World War I and post-World War I era payments. Consequently, there is simply no record. DFAS cannot determine whether the FSM was or was not paid. This highlights one of the reasons for the statute of limitations, as it is difficult for the Government to look 60 to 80 years back in time to determine if a payment was made during the World War I and post-World War I era.

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d. The objective evidence does not support the applicant’s contention that his grandfather was sickly from war injuries and unable to pursue his claim.
Therefore, applicant has not presented a sound justification warranting an excuse of this extremely tardy claim.

3. Although the applicant has submitted a late claim, a cursory review of the merits also reveals there is no miscarriage of justice.

a. The applicant alleges the $3,500 monetary benefit was “authorized by [C]ongress pursuant to the Act of April 10, 1928, 45 Stat. 413.” The Board’s review of 45 Statute 413 reveals Congress authorized the Comptroller General to submit to Congress a report of certain claims and demands against the United States. This, however, is not an authorization of a bonus to be paid to World War I veterans. Accordingly, applicant has cited a statute from which legal and equitable relief cannot be derived.

b. Moreover, even if the applicant had established his grandfather’s generic entitlement to $3,500, for the reasons discussed above, applicant has not adequately shown that his grandfather did not receive the payment. Further, even if the grandfather did not receive the payment, applicant can only speculate that the reason was an injustice warranting compensation. He has not shown to the satisfaction of the Board that his grandfather was not aware of the entitlement or was so sick he could not pursue it.

c. Accordingly, applicant’s speculative and conclusory claim has no serious likelihood of prevailing on the merits.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board considered the applicant’s entire claim. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of the FSM’s record that the Board considered the statute of limitations. Had the Board

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determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__cla___ __aao___ __hbo___ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001059915
SUFFIX
RECON
DATE BOARDED	20011030
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	128.00
2.
3.
4.
5.
6.