IN THE CASE OF:
BOARD DATE: 28 OCTOBER 2008
DOCKET NUMBER: AR20080014078
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 Army record be corrected to show that the Army owes him $1,013.00 and that he be paid this money.
2. The applicant also states, in effect, that when he was discharged, his records had been lost and he was told by his commanding officer that the monies owed him would be sent to him. As of today he has never received anything.
3. The applicant provided no additional evidence 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 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 evidence shows the applicant enlisted in the Regular Army on 31 July 1970. He completed his basic combat training and his advanced individual training at Fort Dix, New Jersey. After completing all required training, he was awarded the military occupational specialty 94B (Cook).
3. Item 30 (Remarks) of the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the entry, "EM separated on temporary records and Soldiers affidavit."
4. There is no evidence in the applicants service personnel records, and the applicant provided no documentary evidence, to show he was owed any money by the Army on the date of his discharge. The evidence shows that the applicant was convicted by a special court-martial of being absent without leave from 25 January 1971 through 30 April 1971. He was sentenced to confinement at hard labor for 2 months as a result of his conviction.
5. The evidence also shows that the applicant absented himself without leave from 20 August 1971 through 13 September 1971 and from 9 October 1971 through 6 January 1972. The applicant was not entitled to pay and allowances while he was in an absence without leave status. The applicant requested discharge for the good of the service, in lieu of trial by courts-martial, for the charges that were preferred against him for these absences and the evidence shows he was discharged on 9 March 1972, more than 36 years before he submitted his claim for the money he says the Army owes him.
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. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicants contention that his record should be corrected to show that the Army owes him $1,013.00 is without merit.
2. The evidence shows that the applicant was discharged with temporary records and his affidavit; however, there is no evidence, and the applicant provided none, to show that the Army is indebted to him in the amount of $1,013.00.
3. In his request to the Board, the applicant did not mention the specific reason the Army is indebted to him in the amount of $1,013.00. There is no evidence in the applicants service records to show the Army was indebted to him in the amount of $1,013.00 and the applicant provided no documentary evidence to show the Army owed him any money after his discharge.
4. Assuming that the applicant was owed $1,013.00 by the Army on his discharge date, the applicant did not submit a claim for this money that was owed to him for over 36 years after he was discharged. 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 the Barring Statute, 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.
5. Based on the evidence, the applicant is not entitled to correction of his Army records to show that the Army is indebted to him in the amount of $1,013.00. The applicant is, therefore, not entitled to payment of the $1,013.00 he claims is owed him by the Army.
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) AR20080014078
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080014078
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090005765
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. The 27 February 1978 letter also advised the applicant of the following: Amount of Debt Due U.S. as of 31 March 1973 $2,632.22 Additional Indebtedness Disclosed on 9 April 1973 $ 833.40 Total Debt $3,465.62 Less Credit for Refund of...
ARMY | BCMR | CY2014 | 20140000857
On 1 July 2008, by letter, the VA notified the FSM's daughter, Melody, that a special review of the FSM's claims file was mandated by court. On 19 November 2013, by letter, DFAS notified the applicant that her claim for unpaid compensation from the FSM's military retired pay could not be paid due to the statute of limitations (Title 31, U.S. Code, section 3702). As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the...
ARMY | BCMR | CY2014 | 20140000857 (3)
On 1 July 2008, by letter, the VA notified the FSM's daughter, Melody, that a special review of the FSM's claims file was mandated by court. On 19 November 2013, by letter, DFAS notified the applicant that her claim for unpaid compensation from the FSM's military retired pay could not be paid due to the statute of limitations (Title 31, U.S. Code, section 3702). As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the...
ARMY | BCMR | CY2014 | 20140000857
On 1 July 2008, by letter, the VA notified the FSM's daughter, Melody, that a special review of the FSM's claims file was mandated by court. On 19 November 2013, by letter, DFAS notified the applicant that her claim for unpaid compensation from the FSM's military retired pay could not be paid due to the statute of limitations (Title 31, U.S. Code, section 3702). As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the...
ARMY | BCMR | CY2009 | 20090016057
The applicant, the spouse of a deceased former service member (FSM), requests that the FSM's military records be corrected to enable her to collect the Survivor Benefit Plan (SBP) annuity retroactive to 2001 when the FSM died. At the time of the FSMs death his children were then 24 and 18 years of age. The evidence clearly indicates that the FSM elected to provide an immediate RCSBP annuity to his spouse and eligible children in the event of his death prior to reaching age 60 at which...
ARMY | BCMR | CY2009 | 20090004777
It shows that he was entitled to a reimbursement for SBP overcharges. On 6 April 2008 and again 11 November 2008, the applicant requested that the Army SBP Administrative Board review his request for full repayment of the monies erroneously withheld. On 13 January 2009, the Army SBP Administrative Board advised the applicant that due to the 6-year barring statute he would have to apply to the Army Board for Correction of Military Records for a correction of his records.
ARMY | BCMR | CY2012 | 20120000377
He goes on to state that in September 2011 he received notification from DFAS that his retirement account had been corrected and that he would receive back pay for only the last 6 years because they were prohibited from paying more than 6 years under the Barring Statute; however, they collected all back premiums for the Survivor Benefits Plan (SBP) all the way back to the date of his retirement. It is also reasonable to believe that had he known that he was not being credited with the...
ARMY | BCMR | CY2007 | 20070010514
The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 July 1983; a copy of DA Form 2139 (Military Pay Voucher), dated 29 July 1983; and a copy of an undated Defense Finance and Accounting Service (DFAS) letter responding to the applicant's DD Form 827 (Application for Arrears in Pay), dated 3 July 2007. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years...
ARMY | BCMR | CY2008 | 20080009638
On 25 June 1971, the FSM was appointed a second lieutenant in the Regular Army. The records should be corrected at this time to show that the applicant applied for the RCSBP annuity in a timely manner and to pay her the annuity, provided she was/is otherwise eligible (e.g., not remarried before age 55), retroactive to the date of the FSMs death. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant...
ARMY | BCMR | CY2008 | 20080016313
IN THE CASE OF: BOARD DATE: 23 December 2008 DOCKET NUMBER: AR20080016313 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006816 on 13 August 2008. The applicant contended that his great-grandmother should have received a payment of the $240.00 remainder of the FSM's enlistment bounty.