RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 November 2007
DOCKET NUMBER: AR20070010514
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.
Ms. Catherine C. Mitrano
Director
Mr. Mohammed R. Elhaj
Analyst
The following members, a quorum, were present:
Mr. John T. Meixell
Chairperson
Ms. Jeanette R. McCants
Member
Mr. Scott W. Faught
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 payment of his pay and entitlements upon his separation from the Regular Army.
2. The applicant states that at the time he was outprocessing in 1983, he was helping another Soldier, also outprocessing. He recently discovered that he did not receive his final pay upon separation. He concludes that he really needs the money and that he is unable to work due to a service connected disability.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 July 1983; a copy of DA Form 2139 (Military Pay Voucher), dated 29 July 1983; and a copy of an undated Defense Finance and Accounting Service (DFAS) letter responding to the applicant's DD Form 827 (Application for Arrears in Pay), dated 3 July 2007.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was a Regular Army sergeant/pay grade E-5, Tactical Wire Operations Specialist, who entered active duty on 26 October 1972 and subsequently had several extensions and/or reenlistments. His last reenlistment was on 30 July 1980 for a period of 3 years.
3. The Enlisted Records and Evaluation Center, Indianapolis, Indiana, notified the applicant, by letter dated 8 July 1982 that a Department of the Army Promotion Selection Board reviewed his Official Military Personnel File (OMPF) and decided to bar him from reenlistment under the Qualitative Management Program (QMP). The basis for the Boards decision was his record of disciplinary actions during the period July 1972 through January 1979.
4. On 29 July 1983, the applicant was honorably discharged. The DD Form 214 he was issued confirms that he was discharged in accordance with chapter 4 of Army Regulation 635-200 (Personnel Separations) for expiration of term of service (ETS). This form further shows that he completed 12 years, 6 months, and 8 days of creditable military service.
5. The applicant submitted a DD Form 827 to DFAS requesting payment of his pay and entitlements due to non-receipt of his ETS pay. By an undated letter, a Claims Examiner, Directorate of Debt and Claims Management, DFAS responded to the applicants 3 July 2007 telephonic conversation. The applicant was advised to submit a DD Form 149 (Application for Correction of Military Records) to the Army Board of Correction of Military Records (ABCMR).
6. The applicant's final military pay voucher, dated 1 August 1983, shows that the disbursing officer computed the applicant's entitlements and subtracted his collections. The voucher further shows that the amount due was paid and that there was no balance left unpaid or carried forward.
7. Title 31 U.S. Code, Section 3702, also known as the barring statue, 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 statues 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 contends that he is entitled to payment of his total entitlements upon discharge from the Army on 29 July 1983.
2. There is no evidence or information available in the applicant's personnel records concerning any pay and allowances. The applicant did not provide any substantiating evidence to show that he was not paid all his entitlements. Therefore, without corroborating evidence, it can not be determined what pay and allowances the applicant did or did not receive at the time of his discharge.
3. In order to justify correction of a military record the applicant must prove, 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__jtm___ __jrm___ __swf___ 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.
John T. Meixell
______________________
CHAIRPERSON
INDEX
CASE ID
AR20070010514
SUFFIX
RECON
DATE BOARDED
20071129
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
(DENY)
REVIEW AUTHORITY
ISSUES 1.
128.0000
2.
3.
4.
5.
6.
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