IN THE CASE OF:	

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090005765 


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, repayment of a duplicate collection. 

2.  The applicant states, in effect, a duplicate collection was made from his pay in 1973 and was not returned.  He also states that this had been an injustice and a hardship on him and his family.   

3.  In support of his application, the applicant provides copies of his monthly Leave and Earnings Statements from January through June 1973; a Pay Adjustment Authorization form; letters to and from the Chief, Field Services Officer, U.S. Army Finance and Accounting Center, Indianapolis, IN; a DA Form 2496 (Disposition Form); a letter from the Beaufort County Veterans Affairs Officer; a letter from the Defense Finance and Accounting Service (DFAS); and a copy of Public Law 820 - 76th Congress.

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 applicant’s 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 applicant’s 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 show he reenlisted in the Regular Army in pay grade E-6 on 13 May 1974, for 6 years.

3.  A Pay Adjustment Authorization, dated 9 April 1973, submitted by the applicant shows the applicant was indebted to the U.S. Army in the amount $2,015.62, for casual payments.  On 9 May 1973, this debt was approved for remission or cancellation as a result of the financial state hampering the applicant’s effectiveness as a Soldier due to extreme pressure from debtors and mental distress due to the degree of financial hardships he and his family faced.  

4.  In letters, dated 12 May and 25 July 1973, the applicant stated, in effect, that he was owed $1,450.00 from back allotments and casual payments.

5.  In a letter, dated 27 February 1978, the Chief, Field Services Office, U.S. Army Finance and Accounting Center, advised the applicant that his indebtedness as of 31 March 1973 was $2,632.22.  The letter also advised, in effect, that he was credited with $1,450.00 in refunds of duplicate collections made in April 1973 for casual days.  The letter further advised, in effect, the amount of $2,015.62 was approved for remission or cancellation on 9 May 1973 and liquidated his remaining indebtedness of $1,636.57.

6.  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 Duplicate Collections				$1,450.00
Remaining Net Amount Due the U.S.							$2,015.62
Approved Remission of Debt in the Amount of				$2,015.62
Balance of Debt													$       0

7.  On 27 March 1978, the Chief, Field Services Office, U.S. Army Finance and Accounting Center, stated that the approved amount for remission and cancellation of indebtedness was credited to the applicant’s May 1973 pay account.  The U.S. Army Finance and Accounting Center official also stated that 
his command did not have the legal authority to authorize refunds in excess of the amount approved for remission or cancellation of indebtedness.  An alternative was to apply to the ABCMR.

8.  On 25 September 1978, the applicant advised the Office of the Assistant Secretary, in effect, an over-collection had occurred.  

9.  The applicant was honorably retired on 31 May 1983 for length of service and transferred to the Retired Reserve.  He was credited with a total of 20 years and 9 days of net active service.

10.  In a letter to the Honorable Strom Thurmond, dated 30 December 1993, the Director of Veterans Affairs, Beaufort County Veterans Affairs Officer, requested the Senator’s assistance in recouping money owed to the applicant prior to his discharge from active duty.

11.  In a letter, dated 27 February 2009, a Claims Examiner, Debt and Claims Management Directorate, DFAS, advised the applicant that his claim was being returned along with a copy of the Barring Act of 1940, as amended by Title 31, U.S. Code, section 3702.  According to the amendment, a claim was barred unless such claim was received in that office within 6 years after the date such claim first accrued.  Since his claim for military pay he did not receive from October 1972 to April 1973 was received more than 6 years after the date it accrued, it was barred from consideration by the provisions of the Barring Act.

12.  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.  The evidence shows the applicant original owed the US as of 31 March 1978 the amount of $2,632.33 plus an addition of $833.40 for a total debt of $3,465.22. He was granted a credit of $1,450.00 for refund of duplicate collections, leaving him with a total debt owed of $2.015.62.  In May 1973, he was granted a remission/cancellation of debt in the amount of $2,015.62.  At the time, he alleged that he was still owed $1,450.00.  The 27 February 1978 letter from the 
U.S. Army Finance and Accounting Center stated the duplicate collection of $1,450.00 made in April 1972 for casual pays was credited to the applicant in April 1973.  The remission/cancellation of his debt liquidated any remaining indebtedness.

2.  No pay records were available for review.  There is also no evidence the applicant applied to the ABCMR concerning this matter in 1978, as he was advised to do.  If he had done so, his pay records might have been able to shed additional information about the debt.  He simply did not exercise due diligence in resolving the matter when the records were available.  There is no evidence that he is entitled to $1,450.00 and he has provided no evidence to the contrary.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090005765





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ABCMR Record of Proceedings (cont)                                         AR20090005765



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