RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 APRIL 2005
      DOCKET NUMBER:  AR20040004429


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. Larry Olson                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the records of his father, a former service
member, be corrected in such a way as to repay him the money that was
deducted from his World War II pay account for his “parents and 4 brothers
and sisters in New York,” but which they never received.  Although the
former service member signed the application, the service member’s son
submitted the request and the included statement.

2.  The applicant states that while researching his father’s VA (Department
of Veterans Affairs) file and other documents, and talking with his father,
he discovered that an allotment was deducted from his father’s “wartime pay
but was never paid to the intended recipient(s).”  He states that he is
asking the Army to acknowledge this mistake and pay his father “what is
rightfully due to him for over 59 years now.”

3.  The applicant states that his father arrived in the Fiji Islands on 13
April 1943 and it was “on or about this time” that his father “claims he
filled out an allotment for 3/4th of his pay to be sent to his parents and
4 brothers and sisters in New York….”  He states his father left this
allotment in place until the end of the war and was under the impression
that his parents were receiving the monthly allotment.  He notes that his
father eventually found out from his brother that his family never received
any money from the Army “in all that time.”  After contacting Army
officials, the applicant states his father was told there was nothing that
could be done.

4.  The applicant states that ultimately his father became very ill and did
not fully recover for quite some time thereafter and never pursued the
matter further.  However, he notes that his father has remained bitter
about the injustice to this day.

5.  The applicant states that he does not know the exact date that the
allotment started or ended or the sum of money taken from his father’s pay.
 However, he trusts that the Board will recognize its “duty to assist” this
veteran and make every effort to obtain these records.  He states that he
was able to locate what appears to be the “unit pay officer’s book” showing
that an allotment or deduction was taken out “for some reason for a period
of time in 1944” and believes that the page prior to the one he obtained
“might show what occurred prior to
31 January 1944.”

6.  The applicant provides the copy of what he described as the “pay
officer’s book,” a copy of a June 1943 letter to his grandmother from his
father which includes a notation that an allotment was started, and copies
of a 1962 and 1978 statements, in which his father discussed the
physiological consequences of his combat experiences and his continued
concern regarding the funds taken from his pay, which were never received
by his parents.

CONSIDERATION OF EVIDENCE:

1.  The former service member is requesting correction of an alleged error
or injustice which occurred on 25 December 1945.  The application submitted
in this case is dated 14 June 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The former service member’s military records are 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 that the applicant’s records were lost or destroyed in that fire.
However, there were sufficient documents remaining in a reconstructed
record for the Board to conduct a fair and impartial review of this case.

4.  The former service member entered active duty on 12 November 1942 and
arrived in the Western Pacific Theater of Operations on 13 April 1943.

5.  The June 1943 letter from the former service member was addressed to
his mother and contains the statement “tell me, mother, did the allotment
start yet?”  The letter goes on to state that the allotment was “being
deducted over here.”  The letter was signed “your loving son, Lucky.”

6.  The document provided by the applicant, which he refers to as the “pay
officer’s book” is actually part of his father’s military personnel file.
The document notes the dates the service member was paid, which was
consistently the last day of each month between January 1944 and October
1945.  It also indicates the dates the service member was promoted (1
February 1945 and
1 September 1945), and that a duplicate pay book was issued in May 1944
because the original book was destroyed.
7.  The entry referred to by the applicant as evidence that an allotment or
deduction was taken out “for some reason for a period of time in 1944” was
a
1 December 1944 entry.  The entry reads “Cl F Ded Disc Eff 31 Dec 1943. Due
Sol 22.00 per Mo for months of Jan thru Nov 1944 over deducted.”
Translated the entry indicates that a Class F deduction was discontinued
effective
31 December 1943 and that the former service member was due $22.00 per
month for the months of January through November 1944, as a result of an
over deduction.

8.  The monthly basic pay of a private, with less than 3 years of service
in 1943 and 1944, was $50.00.  A Class F allotment was a deduction
authorized by an enlisted Soldier as his contribution toward a “Dependency
Allowance.”  The deduction was generally $22.00 per month and the
Government would contribute an additional amount depending on the number
and class of qualified dependents.  A Class E allotment was a deduction
authorized by a Soldier to be paid to institutions, such as banks and
insurance companies, or to individuals who were not classified as
dependents.  The Soldier determined the amount of the Class E allotment.

9.  The former service member returned to the United States in December
1945 and on 25 December 1945 he was honorably discharged as a result of
demobilization.

10.  Included in files available to the Board was an original “deposits”
form, which indicated that the former service member deposited a total
$630.00 into a “Soldier’s Deposit” account maintained by the military’s
finance office between June 1944 and August 1945.  That same form notes
that the applicant deposited $30.00 in the account in July 1943, but that
the amount was “repaid” in November 1943.  His original final payment work
sheet notes that his $630.00 deposit was returned to him, with $28.12 of
interest, during his final processing.  That same payment work sheet
indicates that the applicant had only one allotment being deducted from his
pay at the time of discharge.  It was a Class N allotment in the amount of
$6.50.  A Class N allotment was a pay deduction authorized by the Soldier
to cover premiums for his National Service Life Insurance.

11.  The statements, which according to the applicant, were authored by his
father in 1962 and 1978, indicate that the former service member continued
to believe that an allotment was deducted from his pay for his parents and
that his parents never received the funds.  In the 1978 statement he noted
that 3/4th of his pay was deducted for 31 months.

12.  Title 31, United States Code, section 3702 prohibits the payment of a
claim against the Government unless the Comptroller General has received
the claim 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,
United States 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 evidence, which is available to the Board, indicates that the
former service member discontinued his Class F allotment in December 1943
and that the amount of the allotment apparently continued to be deducted
from his account through November 1944.  However, his pay record indicates
that the amount deducted in error ($22.00 per month between January and
November 1944) was returned to the Soldier.  It is very possible that the
allotment was discontinued because the former service member did not have
any “dependents.” Had he intended to send money to his parent’s a Class E
allotment would have been the appropriate allotment class and there is no
indication that he ever initiated that allotment.  Additionally, the $22.00
deducted from his pay would have been well under 3/4th of his pay, which
the applicant states his father told him was being deducted and which the
former service member indicated was being deducted in the statement he
rendered in 1978.

2.  The fact that the former service member did not have any dependents,
for which the Class F allotment would have been authorized, could explain
why his parents never received any funds.

3.  Unfortunately, there is absolutely no way of knowing if and when the
former service member initiated an allotment, and if he did initiate an
allotment incorrectly, if the funds were actually returned to him.  Such
actions may have been reflected on the pay sheet preceding the one the
applicant provided to the Board.  Regrettably, that record is no longer
available and as such, the Board is unable to say with any certainty what
transpired prior to the payment record that is available.  However, in view
of the fact that the record which is available indicates that funds
deducted between January and November 1944 were returned to former service
member, it would be reasonable to conclude that any earlier funds deducted
from his pay as a result of an invalid allotment were also likely returned
to him.

4.  The fact that the applicant indicated his father told him that the
allotment continued in place until the end of the war, when the evidence
clearly suggests otherwise, is an indication that the former service member
may have been mistaken regarding what funds were being deducted from his
pay and if any deductions were taken, the purpose of those deductions.  The
evidence available to the Board confirms that the applicant was making
regular deposits to his “Soldier’s Deposit” account, and that payment of
his National Service Life Insurance premiums were also being deducted.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the former service member should have discovered the
alleged error or injustice now under consideration on 25 December 1945, the
date of his separation from active duty.  However, the ABCMR was not
established until 2 January 1947.  As a result, the time for the applicant
to file a request for correction of any error or injustice expired on 1
January 1950.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse the
failure to timely file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___LB___  ___LO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the former service member’s failure to timely file this application within
the 3-year statute of limitations prescribed by law.  Therefore, there is
insufficient basis to waive the statute of limitations for timely filing or
for correction of the records of the individual concerned.




                                  ____ Raymond Wagner_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004429                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050419                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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