IN THE CASE OF:
BOARD DATE: 12 AUGUST 2008
DOCKET NUMBER: AR20080009135
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 that he be paid back pay and allowances for his promotion to the rank of private first class (PFC).
2. The applicant states that the Board in a previous decision on 14 November 2006, granted him a promotion to the rank of PFC effective 19 October 1945 and he desires to receive all back pay and allowances for that promotion, regardless of the amount.
3. The applicant provides copies of correspondence to his congressional representative, copies of previous Board decisions and letters from the staff of the Board to the applicant, and a copy of a 18 April 1945 letter from the War Department regarding the promotion of second lieutenants and privates,
CONSIDERATION OF EVIDENCE:
1. On 23 May 2006, the Board received an application from the applicant requesting that his records be corrected to reflect that he be promoted to the rank of PFC. He cited a War Department letter dated 18 April 1945.
2. On 14 November 2006, the Board voted in a Record of Proceedings (AR20060007290) to grant the applicant an exception to policy and promotion to the rank of PFC, effective 10 October 1945.
3. On 5 March 2007, in response to an inquiry from the applicant dated 23 February 2007, the Army Review Boards Agency, Support Division in St. Louis, Missouri, responded to the applicant and informed him that he was not entitled to any back pay as a result of the Boards action on his request because he was authorized his promotion on the date of his discharge and did not serve in that rank.
4. On 18 October 2007, in response to the applicants request for reconsideration of his request to receive back pay for his promotion, the staff of the Board informed the applicant that he was not entitled to receive back pay for his promotion and advised the applicant to seek relief in a court of appropriate jurisdiction.
5. On 14 November 2007, in response to a congressional inquiry, the staff of the Board responded to the congressional representative by informing him that the applicant was not entitled to any back pay as a result of the Boards 14 November 2006 decision because the applicant had not served in the rank of PFC.
6. 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. While it is understood that the applicant believes that he is entitled to renumeration for his promotion to the rank of PFC, the applicant did not produce evidence to establish that he had been unjustly denied a promotion to the rank of PFC. However, given his service in the European Theater of Operations during WWII, the Board granted the applicant a promotion to the rank of PFC as an exception to policy, with a date of rank of 19 October 1945, the date of his discharge.
2. In actuality, the effective date of his promotion was 14 November 2006, the date the Board granted him the exception to policy. Accordingly, he was not entitled to any back pay and allowances as a result of the Board action because he did not actually serve in that rank. Accordingly, there is no basis to grant his request for back pay.
3. 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
__XXX __ __XXX__ __XXX__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during World War II. The applicant and all Americans should be justifiably proud of his service in arms.
___ XXX ___
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) AR20080009135
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ABCMR Record of Proceedings (cont) AR20080009135
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