IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110014371 


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, through his Congressional representative, acknowledgement and combat pay for 8 years and 3 days of honorable service from 11 April 1944 to 4 May 1952.

2.  The applicant states he does not recall receiving any notification or indication of combat pay to be issued or allocated for his World War II and Korea service.  Since current members of the military service receive combat pay, those who served in the past should be afforded the same compensation.

3.  The applicant provides his:

* WD AGO Form 53-55 (Enlisted Record and Report of Separation)
* DD Form 214 (Report of Separation from the Armed Forces of the United States)
* a letter, dated 20 April 2011, from the Army Board for Correction of Military Records (ABCMR) 

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 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.  His 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 his records were lost or destroyed in that fire.  The only record available to this Board are his WD AGO Form 53-55 and DD Form 214 that he provided.   

3.  The WD AGO 53-55 shows he was inducted into the Army of the United States on 4 April 1944 and entered active duty on 11 April 1944.  He arrived in the European Theater of Operations (ETO) on 6 February 1945.  He departed the ETO on 28 May 1946.  He served in three campaigns and was awarded or is authorized the:

* World War II Victory Medal
* European-African-Middle Eastern Campaign Medal with two bronze service stars
* Army Good Conduct Medal
* Combat Infantryman Badge

4.  He was separated from active duty on 12 June 1946.

5.  On 17 January 1951, he entered active duty as a second lieutenant.  He was promoted to first lieutenant on 16 January 1952.  He served 5 months and 
26 days of foreign service.  He was released from active duty on 4 May 1952.  His DD Form 214 shows he was awarded or is authorized the:

* Army Good Conduct Medal
* European-African-Middle Eastern Campaign Medal with two bronze service stars
* Army of Occupation Medal (Germany)
* World War II Victory Medal
* Combat Infantryman Badge (two awards)
* Korean Service Medal with one bronze service star
* United Nations Service Medal

6.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.
7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

8.  Title 31 U. S. Code (USC), 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.  His WD AGO Form 53-55 acknowledges his service during World War II.  During the period he was in the ETO he would have been entitled to receive combat pay.  Without evidence to the contrary it must be presumed he received this pay during that period.

2.  His DD Form 214 acknowledges his service during the Korea Conflict.  The form shows he served 5 months and 26 days foreign service, he was awarded a second award of the Combat Infantryman Badge, and he is authorized the Korea Service Medal.  Although the exact period is not known, during the period he was in Korea he would have been entitled to receive combat pay.  Without evidence to the contrary it must be presumed he received this pay during that period.

3.  The lapse of over 60 years since his last discharge has allowed the 1973 fire to intervene.  An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government.  Had he applied to the ABCMR even by 1972, 20 years after his separation and even though that date would have been beyond the ABCMR’s statute of limitations, an equitable decision could possibly have been made in his case.  However, since it is now over 35 years after the fire, the doctrine of laches is invoked in his case.


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)                                         AR20110014371





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014371



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1