IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100030195 


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 correction of his military records to show that he had enrolled in the Direct Deposit Program (DDP) and to be paid the money he had saved.

2.  The applicant states that when he went to the Republic of Vietnam (RVN), he signed up for the DDP wherein he had deposited all but $25.00 of his monthly pay during the period from January 1968 to May 1970.  He subsequently had a long hospital stay and assignments to West Germany and Fort Belvoir, Virginia.  His finance records were lost in transit.  

3.  The applicant further states that when he left West Germany, he signed papers reporting his poor pay and was told to get on the jet and that his pay would be straightened out at Fort Dix, New Jersey.  It was not straightened out.  He received a little over $200.00 separation pay.  Within 7 days of getting back to his parent's home in Virginia, he went to Fort Belvoir where he signed some more papers to find his lost pay.  He was told to be patient because his records were still in transit.  Every few months he would check in with the main pay office, always with the same reply.  In 1974 he moved to Los Angles, California.  The pay office [location not remembered by applicant] told him that his pay records had burned up in the 1973 warehouse fire.  

4.  The applicant claims that he lost more than $100.00 a month for 18 months, not to mention all of his temporary duty pay and 42 years of accrued interest.  

5.  The applicant contends that he attached copies of pay records and medical records with his application; however, they were not received by the analyst.  A letter from the Deputy Director, Defense Finance and Accounting Service (DFAS), dated 18 October 2010, with enclosure, was received.

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 available military personnel records show the applicant:

	a.  enlisted in the Regular Army on 9 August 1967;

	b.  was awarded  military occupational specialty 36K (Wireman);

	c.  arrived in the RVN on or about 7 February 1968;

	d.  was wounded as a result of enemy action on 23 May 1968;

	e.  was evacuated to the 106th General Hospital in November 1968;

	 f.  was assigned as a switchboard operator at Fort Belvoir on 4 February 1969;

	g.  was assigned as a senior message clerk with the 83rd Field Artillery Regiment in Europe on 16 October 1969;

	h.  was released from active duty at Fort Dix, New Jersey, on 30 July 1970; and

	i.  had attained the rank of specialist four, pay grade E-4, and had completed 2 years, 11 months, and 22 days of creditable active duty service.

3.  The applicant's finance records were not available for review.

4.   The letter, dated 18 October 2010, received with the applicant's application indicates that it was written to a U.S. Senator on behalf of the applicant.  The Deputy Director, DFAS, states that official disbursing records are not available for the period January 1968 through July 1970; therefore, personnel at DFAS are unable to verify the applicant's direct deposit payments.  The author further states that the applicant's claim had accrued on 30 July 1970.  In the event that DFAS were able to obtain the official disbursing records, the Barring Act of 1940 prevents payment of any claim because more than 6 years has passed since 1970.  A copy of the 1940 Barring Act was enclosed with this letter.

5.  The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he had enrolled in the DDP and should now be paid the money he had saved.

2.  The applicant's Army finance records are no longer available for review.  Also, the Army disbursing records for the period of the applicant's active duty service are no longer available for review.  Furthermore, the applicant has not provided any documentary evidence showing that he had participated in the DDP, or that he had initiated an inquiry at the time of his release from active duty, or that he had made a continual pursuit of his lost pay.

3.  Regrettably, due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100030195





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ABCMR Record of Proceedings (cont)                                         AR20100030195



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