IN THE CASE OF:
BOARD DATE: 26 August 2008
DOCKET NUMBER: AR20080009768
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 to be paid for the month of June 1974.
2. The applicant states that while in advanced individual training at Fort Jackson, South Carolina, he was given a 3-day emergency pass to go see his mother. He left early on payday and did not receive his pay. When he returned from his pass, he was informed that there was no record of his ever being stationed at Fort Jackson, South Carolina. Returning to Jacksonville, Florida, he went to the Army recruiter, where he enlisted, and was told that they would get back to him. After 2 months he went back but did not receive an acceptable explanation. The applicant further states that in 2008 he was talking with a church member who is active in the Guard, and who directed him to an officer in the command. As a result, the applicant has submitted this application with enclosures.
3. The applicant provides copies of his orders, pay vouchers, Report of Separation and Record of Service in the Army National Guard of Florida and as a Reserve of the Army (NGB Form 22), and his Retirement Credits Record (NGB Form 23).
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's military records are not available to the Board for review. However, the applicant has provided sufficient documents for the Board to conduct a fair and impartial review of this case.
3. On or about 9 February 1974, the applicant enlisted in the Florida Army National Guard for a period of 6 years. He was assigned for duty with the 146th Signal Battalion, Jacksonville, Florida.
4. Special Orders Number 39, State of Florida, Department of Military Affairs, Office of the Adjutant General, St. Augustine, Florida dated 25 February 1974, ordered the applicant to active duty for training (ADT) for a period of 6 months. He was directed to report on 6 June 1974 to Fort Jackson, South Carolina to commence basic combat training (BTC). Upon completion of BCT, he was further directed to report to Fort Gordon, Georgia, for advanced individual training in military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).
5. State of Florida Special Orders Number 58, paragraph 6, dated 22 March 1974, amended Special Orders Number 39 identified above to change his period of ADT to 5 months and to change his MOS training to 36C (Wire System Installer/Operator).
6. State of Florida Special Orders Number 201, dated 7 October 1975, discharged the applicant from the Army National Guard and as a Reserve of the Army, effective 2 October 1975.
7. An NGB Form 22 indicates that the applicant enlisted in the Florida Army National Guard on 9 February 1974; served on ADT from 6 June 1974 to
2 October 1975; and was discharged from both the Guard and Reserve effective
2 October 1975. The form further indicates that the applicant was not available for signature and that the form was mailed to his last known address.
8. An NGB Form 23 credits the applicant with 27 retirement points for National Guard Service and 483 active duty training points for retirement.
9. A Military Pay Voucher (DA Form 2139) for June 1974, shows that on 7 June 1974, the applicant signed for a partial payment of $50.00.
10. A Military Pay Voucher (DA Form 2139) for June 1974 shows that the applicant was entitled to receive $302.75 basic pay for the period from 6 to
30 June 1974. This voucher shows deductions for insurance, taxes and the partial pay he received on 7 June 1974, totaling $88.46. The pay due was $214.29. There is no signature in block 51 to indicate that he had received this payment.
11. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant knew of this situation while still on active duty for training in 1974 and 1975, more than 30 years before his application to the Board.
2. 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. In view of the above, the applicant's request should be denied.
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.
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