IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012189 


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 receipt of furlough pay (he is probably referring to mustering out pay (MOP)) for a total of 60 days based on his payroll records from November 1952 through November 1954.

2.  The applicant states he did not receive furlough payments for a total of 60 days.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) in support of his application.  

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant’s separation document.   

3.  His DD Form 214 shows he enlisted in the Regular Army on 5 November 1952 and was released from active duty on 24 August 1954.  On the following day, he was transferred to the U.S. Army Reserve.  He completed 1 year, 3 months, and 16 days of foreign service.  

4.  Item 38 (Remarks) on his DD Form 214 does not show he was paid MOP.  

5.  There are no financial records available for the applicant which would have validated whether or not he received his MOP on 24 August 1954.  

6.  Public Law 82-550, enacted in 1952, provided for the payment of MOP to each member of the armed forces, with certain exceptions, who was engaged in active service on or after 27 June 1950 and prior to such date as should be determined by Presidential proclamation or concurrent resolution of the Congress, and who was discharged or relieved from active service under honorable conditions.  One of the exceptions was any member of the Armed Forces for any active service performed prior to the date of his discharge or relief from active service [who requested separation] on his own initiative to accept employment unless he had served outside the continental limits of the United States or in Alaska.

7.  Public Law 82-550 provided that each person eligible to receive MOP would receive one-third of the stipulated amount at the time of final discharge and the remaining amount of such payment would be paid in two equal installments – one month and two months, respectively, from the date of the original payment.  Each person eligible to receive MOP would receive the stipulated amount at the time of discharge or relief from active service or, at the option of the person so eligible, at the time of discharge or release for the purpose of enlistment, reenlistment, or appointment in a regular component of the Armed Forces.

8.  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. 

9.  The equitable doctrine of laches permits dismissal of a claim when an applicant’s unreasonable delay in asserting an error or injustice makes it impossible for the Army to retrieve information necessary to evaluate an applicant’s asserted basis for relief.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty on August 1954 and no evidence is available which shows he was or was not paid MOP.  

2.  At this point in time it cannot be determined why the applicant was not paid MOP, if in fact it was not paid.  It is noted he had performed foreign service during his period of service, one of the requirements for being eligible to receive MOP.

3.  Regrettably, there is insufficient evidence to show whether the applicant was paid MOP or even that he was authorized MOP.  By statute, the applicant is barred from asserting this claim.  Although the ABCMR is not prevented from making a correction by the Barring Act, it may nonetheless deny relief under the doctrine of laches because the applicant’s delay in seeking MOP has made it impossible to determine if an error or injustice occurred.  

4.  Therefore, there is insufficient evidence on which to grant the applicant the relief requested.

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)                                         AR20100012189





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ABCMR Record of Proceedings (cont)                                         AR20100012189



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