IN THE CASE OF:	
,
	BOARD DATE:	  
	DOCKET NUMBER:  AR20080001922 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that item 12b (Separation Date This Period), of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his correct discharge date of 30 January 1980 and that he be entitled to all back pay and allowances. 

2.  The applicant states, in effect, that his separation should be changed from 2 February 1979 to 30 January 1980 and that he be entitled to all back pay and allowances.  He states that his discharge request shows that he went to Fort Jackson, South Carolina, and to return to his unit in Germany.  He asks, "How did it come to this?"  He states that no orders sent him to Fort Dix, New Jersey, and no one knew he was at Fort Dix.  His orders stated Fort Jackson, South Carolina, and not Fort Dix.  He states that he left Germany on 18 January 1979 and was not aware of this [his orders authorizing shipment of household goods and privately owned vehicle].  He elaborates on his shipment costs that were paid out of pocket by him. 

3.  The applicant provides a copy of his DD Form 214 and copies of his separation orders, with amendment, in support of his request.

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's record shows he enlisted in the Regular Army on 30 July 1973.  He was trained as a Field Generator Communication Security Repairman, in military occupational specialty (MOS), 31S.  He was promoted to SP4/E-4 effective 12 November 1974.  He served until he was honorably discharged on 30 April 1975 for immediate reenlistment.  He reenlisted on 1 May 1975 for 5 years with an established expiration term of service (ETS) date of 30 April 1980.  He was promoted to SP5/E-5 effective 18 July 1976. 

3.  The applicant was reassigned to the 178th Signal Company, overseas, in Germany, on 24 August 1978.  

4.  On 15 November 1978, the applicant submitted a formal personnel action request for separation under the provisions of Army Regulation 635-200, chapter 6, paragraph 6-5, due to financial hardship.  

5.  The applicant’s request was processed and approved by the appropriate authority on 17 January 1979, who directed issuance of an Honorable Discharge Certificate.  

6.  On 17 January 1979, Headquarters, 5th Signal Command Orders 12-37, were published reassigning the applicant from the 178th Signal Company to the United States Army Separation Transfer Point, Fort Jackson, South Carolina, with a reporting date to be announced and scheduled date of discharge to be announced.  Orders indicated that he was not authorized shipment of his dependents or household goods.

7.  On 19 January 1979, his orders, dated 17 January 1979, were amended to show that he was authorized shipment of household goods and a privately owned vehicle (POV).

8.  On 2 February 1979, Headquarters US Army Training Center and Fort Dix Orders 033-209 were published discharging the applicant from the Regular Army effective 2 February 1979.

9.  The applicant was discharged on 2 February 1979, under the provisions of Army Regulation 635-200, paragraph 6-3a due to hardship.  He had a total of 5 years, 6 months, and 3 days of creditable service.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6 of that regulation provides, in pertinent part, for the separation of personnel because of genuine dependency or hardship.  An 
application for such separation will be approved when a service member can substantiate that his situation or immediate family's situation has been aggravated to an excessive degree since enlistment, that the condition is not temporary and that discharge will improve the situation.

11.  Paragraph 6-3a, provides for the separation for dependency.  Dependency exists when death or disability of a member of a Soldier’s (or spouse’s) immediate family causes that member to rely upon the Soldier for principal care or support.  

12.  Paragraph 6-3b, provides for the separation due to hardship.  A hardship exists when, in circumstances not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship.

13.  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 evidence of record clearly shows that the applicant requested to be discharged under the provisions of Army Regulation 635-200, chapter 6, paragraph 6-3a for financial hardship.  This separation was administratively correct and in conformance with applicable regulations.  

2.  Orders were published assigning the applicant to Fort Jackson, South Carolina, for his final outprocessing, with a reporting date and discharge 
date to be announced.  He was not authorized shipment of dependents or household goods.  Orders were amended to show authorization of household goods and POV. 

3.  The evidence shows the orders were published by Fort Dix, New Jersey, discharging the applicant from the Regular Army effective 2 February 1979.
There is no evidence, and the applicant has provided none, to show that he was extended past the date of 2 February 1979 to 30 January 1980.  There was no valid reason to hold the applicant at the transition point after his final outprocessing.

4.  The applicant claims that no one knew he was at Fort Dix.  It is apparent that based on the availability of aircraft and at the time of his portcall, the applicant boarded the aircraft to Fort Dix, New Jersey.  At that time, or prior to his departure, his orders should have been amended by his command to show assignment to Fort Dix, New Jersey, instead of Fort Jackson, South Carolina, for final outprocessing.  There is no evidence, and he has provided none, to show that he requested an amendment to his orders.

5.  The applicant alleges that he should be entitled to all back pay and allowances and elaborated on the shipment costs that were paid out of pocket by him.  The applicant has provided no evidence, and there is none, to support his allegations that the Army did not pay for shipment of his household goods and privately owned vehicle.  Nevertheless, the Barring Statute applies in this case. The Barring Statute is designed to prohibit the payment of claims against the Government unless the claim was received by the Comptroller General within 6 years after the claim accrues.

6.  In order to justify correction of a military record the applicant must show 
to the satisfaction of the Board, or it must otherwise satisfactorily appear, that 
the record is in error or unjust.  The applicant has failed to submit evidence
that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  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.



      __________x_____________
      	CHAIRPERSON	
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.








ABCMR Record of Proceedings (cont)                                         AR20080001922



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ABCMR Record of Proceedings (cont)                                         AR20080001922



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