RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 March 2008
	DOCKET NUMBER:  AR20070017064 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Edward Montgomery

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, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 12 May 1994 (later corrected to 31 May 1994) be corrected to show his pay grade as E-4.  He further requests that he be paid for all unused leave at the time of his expiration of term of service (ETS).

2.  The applicant states, in effect, that at the time of his ETS documents were not available to show he was promoted to the grade of E-4.  The applicant further states that his First Sergeant did not want him to advance to the grade of E-4 and tried to keep him from advancing, but he was never notified of any change.  The applicant also states that at the time of his discharge he was not paid for his unused leave. 

3.  The applicant provides a DA Form 4187-E (Personnel Action), dated 
13 December 1994.

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.  The applicant enlisted in the Regular Army on 26 November 1991 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 91B (Medical Specialist).

3.  A DA Form 4187-E, dated 14 May 1993, shows that the applicant was advanced to the pay grade of E-3 with an effective date of 1 June 1993.




4.  The applicant provided a DA Form 4187-E, dated 13 December 1993, that shows he was advanced to the pay grade of E-4 with an effective date of promotion of 26 January 1994.  There is no evidence of any adverse information or that he was later reduced.

5.  The applicant was honorably separated from active duty on 31 May 
1994.  Item 4a (Grade, Rate, or Rank) of the applicant's DD Form 214 shows the rank of Private First Class (PFC).  Item 4b (Pay Grade) shows the pay grade of E-3.  Item 12b (Separation Date this Period) shows 12 May 1994.  Item 
16 (Days Accrued Leave Paid) shows the entry "0." 

6.  A DD Form 215, dated 22 August 1994, was issued to the applicant which amended item 12b of his DD Form 214 with the period ending 12 May 1994 by correcting his separation date to read 31 May 1994.

7.  A Defense Finance and Accounting Service (DFAS) Leave and Earnings Statement for the period 1 through 31 May 1994 shows the applicant's pay grade as E-4.  He had a leave balance of 25.5 days and had used no leave that month.

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 DA Form 4187-E, dated 13 December 1993, and DFAS Leave and Earnings Statement show the applicant was promoted to the pay grade of E-4 prior to his separation from active duty.  Therefore, his DD Form 214 with the ending period 31 May 1994 should be corrected to show his rank/pay grade as SPC/E-4 effective 26 January 1994.

2.  The applicant's DD Form 214 with the period ending 31 May 1994 shows zero days accrued leave was paid.  His DFAS Leave and Earnings Statement for the period 1 through 31 May 1994 show he had a leave balance of 25.5 days and that he had used no leave during May 1994.  

3.  DFAS should audit the applicant’s records.  If the audit confirms that he was never paid a leave balance of 25.5 prior to or after his ETS, he should be paid for 25.5 days of accrued leave. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SLP __  __YM   __  ___EM __  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.  deleting the entry in item 4a of his DD Form 214;
	
	b.  amending his DD Form 214 in item 4a to add "SPC";

	c. deleting the entry in item 4b of his DD Form 214;

	d.  amending his DD Form 214 in item 4b to add "E-4"; 

	e.  deleting the entry in item 12h "1993" year(s), "06" month(s), and "01" day(s) of his DD Form 214; 
	
	f.  amending his DD Form 214 in item 12h to add "1994" year(s), "01" month(s), and "26" day(s);

	g.  auditing his records at DFAS; and 

     	h.  if the appropriate finance records are available and if the audit confirms he was never paid for 25.5 days of accrued leave prior to or after his ETS, pay him for 25.5 days of accrued leave.



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 the applicant for 
25.5 days accrued leave if the audit of his records shows he has already been paid for that leave or if the applicant's finance records are not available due to the passage of time (barring statute).




___ Shirley L. Powell __
          CHAIRPERSON