IN THE CASE OF:
BOARD DATE: 10 December 2009
DOCKET NUMBER: AR20090009304
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 he be paid all of the pay due him during his enlistment.
2. The applicant states he never received full pay during his enlistment. He was sent to Vietnam without his records. He never received pay during his tour in Vietnam or following his return to the United States on emergency leave. He states he brought this to the Army's attention during his active duty service, but nothing was done.
3. The applicant provides:
a. his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 5 October 1966 to 4 October 1968;
b. his DA Form 20 (Enlisted Qualification Record); and
c. a Federal Insurance Contributions Act (FICA) document showing his FICA earnings for years 1966, 1967, and 1968.
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 was inducted into the Army of the United States for a period of 2 years on 5 October 1966. He was released from active duty on 4 October 1968 and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) was issued and captured this period of service. It also shows 3 months and 16 days of foreign service in Vietnam.
3. The applicant's service records show a promotion history as follows:
a. private (PV1/E-1) on 5 October 1966;
b. private (PV2/E-2) on 5 February 1967;
c. private first class (PFC/E-3) on 25 March 1967;
d. specialist four (temporary) (SP4/E-4) on 9 June 1967; and
e. specialist five (temporary) (SP5/E-5) on 17 February 1968.
4. The applicant's finance records are not available for review.
5. The applicant submitted a document purported to be from the Social Security Administration (SSA) showing his FICA earnings for 1966, 1967, and 1968. The document shows:
a. 1966 earnings of $5654.15,
b. 1967 earnings of $1733.76, and
c. 1968 earnings of $1896.08.
6. The Defense Finance and Accounting Service (DFAS) website provides a link to military pay tables dating from 1 October 1949. The following monthly pay rates were in effect:
1 July 1966 to 30 September 1967
E-1 = $ 87.90
E-2 = $100.00
E-3 = $121.80
E-4 = $168.60
1 October 1967 to 30 June 1968
E-5 = $200.40
1 July 1968 to 30 June 1969
E-5 = $226.20
Additionally, Soldiers serving in Vietnam received an additional $55.00 per month as combat pay.
7. Title 31, U.S. Code, section 3702, also known as the Barring Act, 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 applicant wants to receive unspecified back pay. He provides only a FICA earnings statement purportedly from the SSA showing his earnings for calendar years 1966 through 1968.
2. The applicant was a civilian from 1 January 1966 through 4 October 1966 and, presumably, he held some sort of civilian employment. From 5 October 1966 through the end of December 1966 he would have received approximately $251.98 in military pay. His FICA earnings were $5,654.15 which would have reflected his civilian earnings and his military earnings.
3. The applicant's FICA earnings for 1967 and 1968 through 4 October 1967 appear to have been in line with monthly pay rates for lower enlisted Soldiers during the 1960's. Certainly, his FICA earnings lend no credence to his contention that he was underpaid or not paid at all during his service.
4. A Soldier claiming additional pay and allowances previously accrued, but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. The claim is disallowed where government records necessary to either justify or refute it have been destroyed or become unavailable due to the passage of time. Thus, under the Barring Act, DFAS would not pay the applicant even if he could provide evidence validating his contention.
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) AR20090009304
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