IN THE CASE OF:
BOARD DATE: 13 August 2008
DOCKET NUMBER: AR20080006816
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 payment of the $240.00 remainder of the enlistment bonus due to his great-grandfather, a deceased former service member (FSM) in the Civil War.
2. The applicant states, in effect, that his great-grandfather enlisted for a bounty, but was killed after only $60.00 of the bounty had been paid.
3. The applicant provides copies of the following:
a. historical documents and a family genealogy work sheet to demonstrate that he is a descendent of the FSM and, therefore, a qualified applicant;
b. records of the FSM's service;
c. historical documents concerning pensions for the FSM's family; and
c. recent correspondence about the case.
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. All documents considered were submitted by the applicant. The FSM's service records are copies obtained from the National Archives, Washington, DC.
3. The FSM enlisted in I Company, 21st Missouri Infantry on 21 December 1863. A "Muster and Descriptive Roll," dated 29 December 1863, states that he was paid $62.00 bounty and that $240.00 was due. Other entries show that, on
30 January 1864, he died on a boat of wounds received on 24 January 1864.
4. Historical documents show that:
a. A pension had been granted the FSM's widow on 5 January 1865 and that she sought an increase in that pension for herself and five named minor children. Retroactive increases to $8.00 per month for the widow and $2.00 per month for each minor child was granted on 22 April 1867.
b. On 26 January 1872 the guardian of the FSM's five minor children went to court to appoint an attorney to procure the appropriate pension for those children.
5. A 23 February 1999 letter from the National Archives, Washington, DC to the applicant informed him that there was no "final payment voucher" for the FSM. The applicant's application to the Board is dated 8 April 2008.
6. Title 31, U.S. Code, § 3702 provides a 6-year statute of limitations on claims against the Government and the Comptroller General has held that an action by a Corrections Board is insufficient to authorize payment beyond the period of limitations.
7. Laches is the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party.
DISCUSSION AND CONCLUSIONS:
1. Considering that the FSM's survivors were well enough informed and/or represented to claim survivors pensions, it is reasonable to presume that a claim was also made for any payable benefit resulting from the enlistment bonus.
2. The applicant knew of this situation in February 1999, 9 years before his application to the Board. Furthermore, there is no evidence of any previous claim that was unpaid because of some error or omission by a responsible official. Therefore, there is no action this Board could take that would authorize payment despite the 6-year limitation on claims established by Title 31, U.S. Code, section 3702. The Board cannot simply extend that limitation.
3. Additionally, the legal doctrine of laches bars recovery in this case.
4. 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) AR20080006816
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ABCMR Record of Proceedings (cont) AR20080006816
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