IN THE CASE OF:
BOARD DATE: 17 July 2008
DOCKET NUMBER: AR20080007160
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 his records be corrected to show he applied in a timely manner for all pay and allowances due as a result of his discharge upgrade.
2. The applicant states he was told that because of the 6-year limitation this was the only way he was going to be considered for any further pay or benefits.
3. The applicant provides his original DD Form 214 (Certificate of Release or Discharge from Active Duty); his re-issued DD Form 214; and the Army Discharge Review Board (ADRB) proceedings.
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. The applicant enlisted in the Regular Army on 1 August 1979. He was promoted to Sergeant, E-5, on 6 October 1986.
3. On 4 February 1993, the applicant was discharged, in the rank and grade of Private, E-1, under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions.
4. The Department of Defense Financial Management Regulation states a member who is separated with a discharge under other than honorable conditions forfeits payment for accrued leave.
5. Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel. In pertinent part, it states when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.
6. On 10 October 1997, the ADRB upgraded the applicants discharge to general under honorable conditions, which restored his rank to Sergeant.
7. By letter dated 10 February 1998, the Review Boards Agency Support Division informed the applicant that the ADRB upgraded his discharge. He was advised that he could apply to the Defense Finance and Accounting Service (DFAS) for any monetary benefits to which he might be entitled by virtue of the change in his discharge. He apparently did not apply to DFAS within 6 years.
8. Title 31, U.S. Code, section 3702 establishes a 6-year statute of limitations on filing a claim for payment from the U.S. government. 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. In February 1998, after the ADRB upgraded the applicants discharge, he was informed that he could apply to DFAS for any monetary benefits to which he might be entitled by virtue of the change in his discharge. Such benefits would
have included the difference in final pay between pay grade E-1 and E-5 and payment for any unused leave he may have accrued. He apparently did not apply to DFAS within 6 years.
2. One consideration for the 6-year statute of limitations for filing claims contained in section 3702 of Title 31, U. S. Code, is to relieve 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.
3. In this case, the applicant has been separated about 15 years. DFAS might still be able to determine what monetary benefits he was due as a result of his discharge being upgraded, or determine that he has already been paid all due monetary benefits as a result of his discharge being upgraded.
4. The applicants records should be corrected to show he applied to DFAS in a timely manner to obtain any monetary benefits to which he might have been entitled by virtue of the change in his discharge. DFAS should then, if sufficient records are available, audit his records to determine what monetary benefits he was due and, if the audit also determines that he has not already been paid those benefits, that DFAS pay to him those benefits.
BOARD VOTE:
___xx___ __xx____ ___xx___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing he applied to DFAS in a timely manner to obtain any monetary benefits to which he might have been entitled by virtue of the change in his discharge; and
b. DFAS should, if sufficient records are available, audit his records to determine what monetary benefits he was due and, if the audit also determines that he has not already been paid those benefits, pay to him those benefits.
_ __xxxx_ ____________
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.
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