IN THE CASE OF:
BOARD DATE: 23 November 2010
DOCKET NUMBER: AR20100012193
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 $200.00 in separation (mustering out) pay plus interest.
2. The applicant states that upon discharge he was owed $300.00 in separation pay, but he only received $100.00 dollars and never received the remaining $200.00. He believes he is owed the $200.00 balance plus interest.
3. The applicant provides a copy of a letter to the Defense Finance and Accounting Service (DFAS) requesting payment; a response letter from DFAS, dated 15 February 2009; his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge); and a photocopy of a War Department envelope and note in response to his initial request for payment.
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 was inducted into the Army of the United States and entered active duty on 22 June 1943. He was awarded the military occupational specialty of field telephone operator. The highest rank he held was private first class.
3. He was discharged on 24 January 1946 after completing 2 years, 7 months, and 3 days of active service.
4. Item 44 (Mustering Out Pay) of his WD AGO Form 53-55 contains the entries, "Total $300" and "This Payment $100.00."
5. The applicant provided a photocopy of an envelope with a War Department Army Central Adjustment Office (ACAO) return address. The date stamp on the envelope appears to read 20 February 1946. An ACAO Form 124 that was apparently enclosed in response to his claim (identified as Case Number 221109) for the $200.00 balance of his mustering out pay stated that due to a shortage of finance personnel, some delay in his settlement would be inevitable.
6. The applicant also provided a copy of a letter from DFAS, dated 15 February 2009, stating DFAS was returning his claim, Account Number ending in 0095, for amounts believed due from the United States. The letter further stated that Title 4, Volume 1, Code of Federal Regulations, chapter 1, part 31 section 31.7, states, "Claims are settled on the basis of the facts as established by the government agency concerned and by evidence submitted by the claimant. Settlements are founded on a determination of the legal liability of the United States under the factual situation involved as established by the written record. The burden is on claimants to establish the liability of the United States and the claimant's right to payment. The settlement of claims is based upon written records only." It further states that in situations such as this where written records that may prove or disprove the validity of a claim are unavailable, this office has no alternative but to disallow the claim.
DISCUSSION AND CONCLUSIONS:
1. Based on the applicant's WD AGO 53-55 and the ACAO response to his claim, the evidence indicates the applicant did not initially receive the balance of his mustering out pay or even promptly after filing his claim with the War Department. While the applicant believes he never received the balance of his mustering out pay, beyond his own claim, he has not established that the War Department did not eventually pay him the $200.00 balance. As such, regrettably, there is insufficient corroborating evidence to support a recommendation for payment of these monies.
2. In view of the foregoing, there is an insufficient 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) AR20100012193
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ABCMR Record of Proceedings (cont) AR20100012193
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