IN THE CASE OF:
BOARD DATE: 22 February 2011
DOCKET NUMBER: AR20100020496
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, that he be reimbursed a total of $36.00 (the difference in pay between a private and private first class for 9 months during the period December 1944 to September 1945).
2. The applicant states:
* He did not receive his final pay upon separation as a private first class
* His final pay was as a private
* Since 1946 he has been trying to collect the 9 months of private first class pay
* He collected pay as a private first class while he was in the hospital but when he was discharged they charged him $36.00 ($4.00 for each month) because they said he was a private not a private first class
* The only letter he received was dated 10 November 1954 which states he was promoted to private first class on 31 July 1945
3. The applicant provides no documentary evidence 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants 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 in 1973. It is believed that the applicants 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.
3. He was inducted into the Army of the United States on 18 June 1943 and entered active duty on 2 July 1943. He served in the European theater of operations from 6 July 1944 through 12 March 1945 and he was honorably separated on 6 September 1945. Item 3 (Grade) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) shows he held the rank of private on the date of his separation.
4. A WD Form 371 (Final Payment Roll) prepared on 6 September 1945, the date of the applicant's separation, shows he received his final pay in the rank of private first class.
5. A letter from the Settlement Division, Finance Center, United States Army, dated 10 November 1954, shows he was promoted to private first class on
31 July 1945. A Certification of Military Service, prepared on 11 June 1997, shows his rank at the time of separation from active duty was private first class.
6. There is no evidence of record which shows he was not paid as a private first class when he was discharged or that he was docked/charged $36.00 from his final pay.
7. On 25 June 2009, based on an ABCMR decision, item 3 of his WD AGO Form 53-55 was amended to show his rank as private first class.
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. 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:
The applicant's contentions were carefully considered. However, the evidence shows he received his final pay in the rank of private first class. There is no evidence of record and he provided no evidence which shows money was deducted from his final pay. Regrettably, 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) AR20100020496
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ABCMR Record of Proceedings (cont) AR20100020496
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