BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100007577 


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, correction of his military records to show that he made a timely claim to receive his separation pay.  He also requests payment of his separation pay.

2.  The applicant states that he should have received $7,000.26 when he was separated in May 1991.  In 1993, he received a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) adding authorization to receive separation pay.  At the time he received this correction, he was incapable of realizing the government was trying to contact him.  The DD Form 215 showed his old address.  He believes that the check, if mailed, was not forwarded to his new address.  At the time he was devastated by the passing of his younger brother.  Had there been a point of contact or instructions, he would have complied.  In his grief, he did not even open the letter until many years later when he rediscovered it.

3.  The applicant further states that his current situation is one of financial hardship.  He is partially disabled.  His right hip has been replaced and needs his left hip replaced.  Medical bills for ongoing therapy and doctor visits have been constant.  He works full time, mostly in pain, and supports his family as best as he can.  He has a second mortgage to pay for his son's college tuition.  His wife has ongoing medical problems that have been expensive.  He respectfully asks the Board's favorable consideration in this matter.  He understands if legislature negates a claim of interest on this pay, but the original amount that was to be paid would greatly help his family at this time.

4.  The applicant provides copies of his DD Form 214; DD Form 215; envelope, postmarked 10 May 1991; and a letter from the Defense Finance and Accounting Service (DFAS), dated 15 December 2009.

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.  On 3 November 1982, the applicant enlisted in the Regular Army.  His military occupational specialty was 91V (Respiratory Specialist).  His duty assignments included the Walter Reed Army Medical Center in Washington, DC; the 121st Evacuation Hospital in Seoul, Korea; and the Medical Activity at Fort Dix, New Jersey.

3.  On 1 June 1985, the applicant was promoted to sergeant/pay grade E-5.

4.  On 10 May 1991, the applicant was discharged due to failure to meet the Army's body fat standards.  He had completed total of 9 years, 3 months, and 12 days of creditable active duty service.

5.  On 26 May 1993, a DD Form 215 was issued to add the following statement to item 18 (Remarks) of his DD Form 214:  "Separation Pay - $7,000.26."

6.  The DFAS letter provided by the applicant states, in essence, that the applicant requested his separation pay, but the Barring Act of 1940 precluded payment of the applicant's separation pay because he had waited 19 years to file his claim.

7.  Title 31, U.S. Code, section 3700(b)(1), states every claim against the United States is barred unless such claim is received within 6 years after the date such claim first accrued.  Regulations issued under Title 31, U.S. Code, section 3700(b)(1), were modified to provide that a claim can be filed with the agency out of whose activities the claim arose to toll the 6-year Barring Act.  However, this amendment affected only those claims not barred as of 15 June 1989.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he made a timely claim to receive his separation pay.  He also requests payment of his separation pay.

2.  The evidence clearly shows the applicant was authorized to receive separation pay at the time of his discharge from the Regular Army.  However, it appears that the authorization was not provided until 2 years after his actual separation.

3.  The applicant further argues that he did not receive his separation pay and because of the death of his younger brother and a change in his mailing address, he was unaware at the time of his entitlement to this pay.

4.  In the interest of justice, the applicant's records should be corrected to show that he made a timely claim for this separation pay.

5.  Furthermore, DFAS should audit the applicant's military pay records to determine whether he was or was not paid this separation pay and, if he was not, payment should now be made.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that he made a timely claim for payment of separation pay in the amount of $7,000.26,

	b.  auditing his military pay records to determine the status of his separation pay, and

	c.  paying him any monies due him as a result of this correction.



      __________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)                                         AR20100007577



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR