RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012647 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C Bergquist

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 he be paid Family Separation Allowance (FSA) and any other allowances for the period 5 April through 16 July 1993.

2.  The applicant states he never received FSA the entire 4 months he was at the Basic Noncommissioned Officer Course (BNCOC).

3.  The applicant provides a letter from him to the Defense Finance and Accounting Service (DFAS) with a xerox copy of a yellow “sticky” note, dated       12 July 2007, attached; a letter, dated 21 August 2007, from DFAS; and a letter, dated (partially illegible) on or about 27 September 2006, from DFAS with an attached explanation of the barring statute.

4.  With the applicant’s prior application to the Army Board for Correction of Military Records (ABCMR) (which was administratively closed), the applicant provided a Statement to Substantiate Payment of Family Separation Allowance and a Joint Uniform Military Pay System (JUMPS) Leave and Earnings Statement Online Inquiry System printout for the month of May 1993.

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 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.  After having had prior service, the applicant enlisted in the Regular Army on 23 February 1987.

3.  While assigned to his permanent duty station at Fort Drum, NY, the applicant was sent on temporary duty (TDY) to Redstone Arsenal, AL, to attend BNCOC.
He attended BNCOC from 5 April through 16 July 1993.

4.  The applicant provided a partially completed Statement to Substantiate Payment of Family Separation Allowance that shows he applied for FSA-T (for the period 1 April 1993 to 16 July 1993) on 28 July 1993.  He indicated that his dependents resided on Fort Drum.  The certifying officer did not complete the document.

5.  The applicant was discharged from the Regular Army on 18 April 1995 and enlisted in the U. S. Army Reserve.  He was assigned to the Retired Reserve on 22 March 2004.

6.  Around September 2006, the applicant applied to DFAS for payment of FSA for the period 5 April through 16 July 1993.  DFAS informed him that the barring statute prevented consideration of his claim.

7.  The Department of Defense Financial Management Regulation, Volume 7A states that FSA, subcategory FSA-T, is authorized for a member on TDY away from the permanent station continuously for more than 30 days, and the member’s dependents are not residing at or near the TDY station.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant was eligible to receive FSA-T for the period he attended BNCOC, 5 April through 16 July 1993, in a TDY status.  

2.  The applicant provided no explanation as to why he waited about 13 years to raise the issue of his not receiving FSA-T.  Nevertheless, he continued to have an active military status until March 2004 so his finance records from 1993 should be available for review.

3.  DFAS should audit the applicant’s records.  If the audit confirms that he was never paid FSA-T for the period 5 April through 16 July 1993, his records should then be corrected to show that his Statement to Substantiate Payment of Family Separation Allowance was properly completed on 1 August 1993, that it was received and processed by the appropriate office in a timely manner, and that he be paid FSA-T for that period of TDY.
4.  The applicant does not explain what he means by “and any other allowances” and therefore this portion of his request cannot be further considered at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__slp___  __pms___  __lcb___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  auditing his records at the Defense Finance and Accounting Service;

     b. showing, if the appropriate finance records are available and if the audit confirms he was never paid FSA-T for the period 5 April through 16 July 1993, that his Statement to Substantiate Payment of Family Separation Allowance was properly completed on 1 August 1993, and received and processed by the appropriate office in a timely manner; and

     c.  paying to him FSA-T for the period 5 April through 16 July 1993.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying to him any allowances other than FSA-T for the period 5 April through 16 July 1993.




__Shirley L. Powell___
          CHAIRPERSON




INDEX

CASE ID
AR20070012647
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
128.00
2.

3.

4.

5.

6.