IN THE CASE OF:
BOARD DATE: 27 October 2011
DOCKET NUMBER: AR20110008655
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 back pay coincident with his rank restoration.
2. The applicant states the Army Discharge Review Board (ADRB) upgraded his discharge under other than honorable conditions (UOTHC) to a general discharge (GD) under honorable conditions. His rank was increased from private (PV1)/E-1 to private (PV2)/E-2, but he was never compensated for the period from his reduction to the date his rank was finally restored.
3. The applicant provides:
* a letter from the U.S. Army Reserve Personnel Center, dated 15 September 1994
* a Defense Finance and Accounting Service (DFAS) military pay voucher, dated 10 January 1995
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 20 March 1990, the applicant was discharged for misconduct under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations Enlisted Personnel). His UOTHC discharge showed he was reduced from E-2 to E-1 on 14 March 1990.
3. On 8 July 1994, the ADRB granted the applicant's request for a discharge upgrade. He was given a GD and his rank was restored to E-2 with a date of rank of 25 July 1989, the date he was reduced from private first class/E-3 as a result of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice.
4. The DFAS military pay voucher shows the applicant's pay record was adjusted to pay him the difference between E-1 and E-2 pay for the period
14-20 March 1990 and for 13 days of accrued leave. From the amount due, the following items were collected:
* a casual pay debt
* a Federal Insurance Contributions Act deduction
* Federal income tax
5. 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:
1. The applicant was reduced to PVT/E-2 on 25 July 1989 as a result of NJP. On that date, his basic pay rate changed and he was paid as an E-2 through 13 March 1990. On 14 March 1990, he was reduced to PVT/E-1 as a result of an administrative action under the provisions of Army Regulation 635-200, chapter 14, and he was paid as an E-1 from 14 March 1990 to his discharge on 20 March 1990.
2. The DFAS pay action on 10 January 1995 was the result of the ADRB's upgrade of the applicant's discharge and pay grade E-2 reinstatement. That pay action properly compensated the applicant for the difference between E-1 and
E-2 pay for the affected period 14-20 March 1990.
3. The applicant received payment from DFAS in January 1995. Even if, for the sake of argument, that payment was incorrect, 16 years have passed and the matter is well outside the statute of limitations established by Title 31, U.S. Code, section 3702.
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 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) AR20110008655
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