RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070011792 


	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. William D. Powers

Chairperson

Mr. Gerald J. Purcell

Member

Mr. John G. Heck

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 combat pay for the 2 years and 6 months spent in a prisoner of war (POW) status.

2.  The applicant states that a report in the POW Newsletter shows that all branches of service paid combat pay to their POWs except the US Army.

3.  The applicant provides a DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 17 October 1953 and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 30 April 1970, in support of his application. 

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.  With prior service in the U.S. Air National Guard, the applicant enlisted in the Regular Army on 6 December 1949 in the rank of private/pay grade E-1 for a period of 3 years.  He was awarded military occupational specialty (MOS) 1745 (Light Weapons Infantryman). 

3.  The applicant's records also show that he served in the Republic of Korea during the period 24 June 1950 through 18 August 1953.  He was assigned as a rifleman to A Company, 17th Infantry, from 24 June 1950 to 8 October 1950 and to G Company, 19th Infantry, from 9 October 1950 to 18 August 1953. 

4.  On 22 April 1951, while performing duties of radio operator in a defensive position near Chipo-ri, North Korea, his unit was attacked by the enemy.  Due to darkness, the applicant was separated from his unit and was not seen.  He was reported missing in action (MIA) effective 22 April 1951.  His grade was corporal/pay grade E-4.  An initial Casualty Report was submitted by the 19th Infantry Regiment.

5.  On 19 December 1951, a Battle Casualty Report, submitted by the Department of the Army, Office of the Adjutant General informed the applicant's next of kin that he was included on a list of prisoners supposedly held by enemy forces.  The list could not be verified as to its accuracy at that time.

6.  On 24 January 1952 and in view of mail received which appeared to have been written by the applicant while in the custody of enemy forces, an official determination was made by the Army to change the applicant's status to "captured."

7.  On 17 August 1953, the applicant was released from captivity and returned to military control.  The Battle Casualty Report, dated 18 August 1953, informed the applicant's next of kin that the applicant would be returned to the United States at a later date.

8.  Headquarters, U.S. Forces, Far East, published General Orders on 13 June 1953 announcing the applicant's promotion to sergeant/pay grade E-5 effective 1 May 1953 and with a date of rank as 16 July 1951.

9.  The applicant was discharged on 17 October 1953 for expiration of his term of service (ETS).  The DD Form 214 he was issued at the time confirms that he completed 3 years, 10 months, and 11 days during this period of enlistment.  This form also shows that he was in fact in POW status and that he was retained in the Army for 10 months and 11 days beyond his ETS for the convenience of the government.  

10.  After a break in service, the applicant enlisted in the Regular Army on 3 March 1954.  He subsequently had a series of reenlistments until 30 April 1970 when he retired and transferred to the U.S. Army Reserve Control group (Retired).  The DD Form 214 he was issued shows he completed 20 years and 24 days of creditable military service.

11.  Public Law 490, 77th Congress, dated 7 March 1942, codified in statue as 50 USC 1002, repealed on 6 September 1966, provides for continuing payment of pay and allowances of personnel of the Army, Navy, Marine Corps, and Coast Guard, including the retired and Reserve Components thereof, during periods of absence from post of duty, and for other purposes. 

12.  Public Law 490 states that any person who is in active service and is officially reported as missing, missing in action, interned in a neutral country, or captured by an enemy, shall, while so absent, be entitled to receive or to have credited to his account the same pay and allowances to which such person was entitled to at the beginning of the absence or may become entitled to thereof provided that such person shall not have been officially reported as having been absent from his post of duty without authority and provided further that expiration of the agreed term of service during the period of such absence shall not operate to terminate the right to receive such pay and allowances and provided that should proper authority subsequently determine that the person concerned shall have been absent from his post of duty without authority, such person shall be indebted to the Government in the amount for which payments have been made or pay and allowances credited to his account in accordance with the provision of this Act during such absence.

13.  37 USC 10 governs entitlements of service members to special pay.  The 2006 [emphasis added] Department of Defense (DoD) Financial Management Regulation provides all DoD components with the policy, regulation, and procedures within the area of responsibility of the Comptroller.  Chapter 10 of the 2006 DoD Financial Management Regulation governs entitlements to special pay.  It states in pertinent part that a service-member may be paid special pay for duty subject to hostile fire or imminent danger for any month when the member while entitled to basic pay for active duty or compensation for inactive duty also meets the qualifying criteria.

14.  Hostile Fire Pay (HFP) is an entitlement that is payable when, as certified by the appropriate commander, a member is subjected to hostile fire or explosion of a hostile mine, or on duty in an area in close proximity to a hostile fire incident and the member is in danger of being exposed to the same dangers actually experienced by other service members subjected to hostile fire or explosion of hostile mines, or  killed, injured, or wounded by hostile fire, explosion of a hostile mine, or any other hostile action.

15.  Imminent Danger Pay (IDP) is an entitlement that is payable when a member is on official duty in a designated IDP area conditions.  One day spent in a designated HFP area qualifies the member for the entire month.  In-theater servicing finance units will start HFP entitlement after arrival in theater.  Reserve members are also eligible for Hostile Fire and Imminent Danger Pay.

16.  The appropriate commander is responsible for certifying that the member has met the requirements for entitlement to HFP/IDP for a given month, except when the member is under orders on official duty in one of the designated IDP areas.  Certification of entitlement is made at the lowest level of command that includes all the vessels, aircraft, or units subjected to the hostile fire or explosion of hostile mine incident.  Any determinations of fact made by commanders in the certification of hostile fire are conclusive.  Such determinations are not subject to review by any officer or agency of the government, unless there has been fraud or gross negligence.  Such determinations, however, may be changed on the basis of new evidence or for other good cause.

17.  Paragraph 1003 of Chapter 10 addresses special situations such as hospitalization, captured or missing members, and absence.  It states that a member who is entitled to HFP/IDP immediately before entering a status of missing, missing-in-action, interned in a foreign country or captured by a hostile force shall continue to be credited with HFP/IDP for each month while in such a status. 

18.  Chapter 34 of the 2006 DoD Financial Management Regulation gives more detailed instructions on pay entitlements of members missing, missing in action, interned, and payment to dependents.  Paragraph 340602 states that when a member is continued in a missing status, credit pay and allowances to his or her account.  Allotments are continued, discontinued, increased, or initiated as provided in Chapters 41 through 43 of this regulation.  When the Secretary of the Military Service concerned (or designee) officially reports that a missing member is alive and in the hands of a hostile force or is interned in a foreign country, allotment payments are authorized.  These payments on the member’s behalf continue through the date on which the Secretary of the Military Department concerned (or designee) receives evidence that the member is dead.  When a member returns to Military Service control, the member resumes control of allotments.

19.  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 combat pay for the period 22 April 1951 through 17 August 1953, while in "captured" status.

2.  Evidence of record shows that the applicant was reported missing in action (MIA) on 22 April 1951.  Once his actual status was confirmed on 15 December 1951, his duty status was changed to captured (POW).  He was released from captivity and returned to military control on 17 August 1953.

3.  In order to relieve financial worry and concern on the part of family members and/or dependents of military personnel carried in missing in action or captured status, Congress enacted legislation which continues the pay, allowances, and allotments of such personnel until their status was definitely established.  Therefore, if an applicant is reported missing or detained in a foreign country against his will, then the member is entitled to receive or have credited to his account the pay and allowances to which entitled when missing status began or to which the member becomes entitled.

4.  Notwithstanding the provisions of the law that allow for continuation of pay and allowances for captured military personnel, 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.  Defense Finance and Accounting Service military pay records before 1975 are not available.  Therefore, without corroborating evidence, it can't be determined what pay and allowances the applicant was or was not entitled to or if these entitlements were paid.  

5.  The applicant has not shown he was denied any of the pay he requested or was entitled to; and since he has not shown error, injustice, or inequity there is insufficient basis for the relief he now requests. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __gjp___  __jgh___  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
AR20070011792
SUFFIX

RECON

DATE BOARDED
20071127
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
128.1400
2.

3.

4.

5.

6.