RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 July 2005
      DOCKET NUMBER:   AR20040010403


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 mustering out pay (MOP) due her late
spouse, a former service member (FSM) be paid to her.

2.  The applicant stated, in a letter to the President, that she is an old
sick widow who is seeking justice.  The FSM's records show he had not
received his MOP.  Any amount will help her a lot, and before she makes her
exit from this world at least his broken dream will be a reality.

3.  The applicant provides two DD Forms 214 (Report of Separation from the
Armed Forces of the United States); a National Archives Form 13044 (Reply
Concerning Military Records) dated 8 December 1989; a certification of
military service; a DD Form 220 (Active Duty Report); a Statement of
Physical Condition dated 12 July 1958; and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 14 December 1945.  He was
separated on 10 September 1948.  His WD AGO Form 53 (Enlisted Record and
Report of Separation) shows that at that time he was paid $100 of his $300
due MOP.  He apparently had additional Regular Army service from 2 February
1949 through 2 November 1949.

2.  After having subsequent service in the Enlisted Reserve Corps and the
Army National Guard, the FSM enlisted in the Regular Army on 3 March 1950.
He was honorably discharged on 10 August 1954 for the purpose of accepting
an appointment as a warrant officer.  He entered active duty as a warrant
officer in the U. S. Army Reserve on 11 August 1954.

3.  On 7 July 1955, the FSM submitted a request for an unqualified
resignation as his presence was needed with his civilian enterprises.  His
request for unqualified resignation was disapproved; however, his release
from active duty was approved and he was released from active duty on 3
September 1955.  Item     38 (Remarks) of his DD Form 214 for the period
ending 3 September 1955 shows he was not paid MOP.  Item 26 (Foreign and/or
Sea Service) shows that he performed no foreign service during this period.

4.  The FSM continued to actively serve in the U. S. Army Reserve until he
was honorably discharged effective 8 January 1963.

5.  In 1989, the FSM requested the National Personnel Records Center (NPRC)
verify his active duty dates.  The NPRC responded on 8 December 1989 by
informing him they could not verify his active duty time while a member of
the Army National Guard.

6.  The FSM died on 21 January 2000.

7.  In the processing of this case, an advisory opinion was provided by the
Defense Finance and Accounting Service (DFAS).  DFAS indicated that the FSM
could not have been paid an additional payment of MOP under Public Law
 78-225 because of the MOP payment that he should have been paid on
   10 August 1954.  All financial records for the FSM which would have
validated whether or not he received his MOP on 10 August 1954 have been
destroyed.  The burden is on claimants to establish the liability of the
United States and the claimants' right to payment.  The settlement of
claims is based upon the written record only.  In situations such as this
where written records that may prove or disprove the validity of a claim
are unavailable, DFAS has no alternative but to disallow this claim or any
claim in the future.

8.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  She did not respond within the given time frame.

9.  Public Law 78-225, enacted in 1944, provided for the payment of
mustering out pay to each member of the armed forces, with certain
exceptions, who was engaged in active service in the present war (i.e.,
World War II) and who was discharged or relieved from active service under
honorable conditions on or after 7 December 1941.  Each person eligible to
receive MOP would receive one-third of the stipulated amount at the time of
final discharge or ultimate relief from active service and the remaining
amount of such payment would be paid in two equal installments – one month
and two months, respectively, from the date of the original payment.

10.  Public Law 82-550, enacted in 1952, provided for the payment of MOP to
each member of the armed forces, with certain exceptions, who was engaged
in active service on or after 27 June 1950 and prior to such date as should
be determined by Presidential proclamation or concurrent resolution of the
Congress, and who was discharged or relieved from active service under
honorable conditions.  One of the exceptions was any member of the Armed
Forces for any active service performed prior to the date of his discharge
or relief from active service [who requested separation] on his own
initiative to accept employment unless he had served outside the
continental limits of the United States or in Alaska.

11.  Public Law 82-550 provided that each person eligible to receive MOP
would receive one-third of the stipulated amount at the time of final
discharge and the remaining amount of such payment would be paid in two
equal installments – one month and two months, respectively, from the date
of the original payment.  Each person eligible to receive MOP would receive
the stipulated amount at the time of discharge or relief from active
service or, at the option of the person so eligible, at the time of
discharge or release for the purpose of enlistment, reenlistment, or
appointment in a regular component of the Armed Forces.

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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was paid MOP when he was discharged from active duty on
 10 September 1948.

2.  The FSM had enlisted again on 3 March 1950 and was honorably discharged
on 10 August 1954 for the purpose of accepting appointment as a U. S. Army
Reserve warrant officer.  In July 1955, he submitted a request for an
unqualified resignation as his presence was needed with his civilian
enterprises.  He was thereupon released from active duty on 3 September
1955.  His DD Form 214 for the period ending 3 September 1955 shows he was
not paid MOP.

3.  At this point in time it cannot be determined why the FSM was not paid
MOP.  It is noted he had not performed any foreign service during his last
period of service, one of the requirements for being eligible to receive
MOP.

4.  DFAS indicated that the FSM should have been paid MOP on 10 August 1954
when he was honorably discharged to accept an appointment as a warrant
officer.  However, it cannot be determined he met the eligibility criteria
(enlistment, reenlistment, or appointment in a regular component of the
Armed Forces) for such payment.  On the other hand, at this point in time
it cannot be determined if the finance office may have authorized payment
of MOP even though the member may have accepted appointment in a non-
regular component.

5.  More importantly, DFAS indicated that all financial records for the FSM
which would have validated whether or not he received his MOP on 10 August
1954 have been destroyed.  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.
6.  It is noted that the FSM contacted the government in 1989 regarding
another concern he had about his military service.  The applicant provides
insufficient evidence to show the FSM had concerns about not being paid MOP
after his separation in 1955.  Regrettably, there is insufficient evidence
on which to show the FSM was or was not paid MOP a second time or even that
he was authorized MOP and therefore there is insufficient evidence on which
to grant the applicant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __lcb___  __jbg___  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.




            __William D. Powers___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010403                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050728                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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