BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110016262 


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 reconsideration of his request to show correction of his military records to show he had enrolled in the direct deposit program and to be paid any monies owed to him regardless of his missing payroll records and the 1940 Barring Act.

2.  He states:

   a.  on several occasions, he filed for direct deposit after returning to the U.S. from Vietnam, both while on active duty and as a civilian well within the 
6 year time line established by the Barring Act.

   b.  on different occasions, at different installations, he was told his records were lost in transit, burned up in a fire in 1973, and destroyed by the North Vietnamese;  

	c.  he enclosed all the DD Forms 2139 and 2139-1 (Military Pay Voucher) and DA Forms 2349 (Military Pay Voucher (Mechanized)) he received which: 

   (1)  clearly show his direct deposit was being withheld;
   
   (2)  show more than one signature, in addition to his;
   
   (3)  clearly show a different bank than the one he signed up for;
   
   (4)  money was withheld while he was in Vietnam, in the hospital in Japan, and until he was promoted to specialist four (SP4)/E-4 upon his return to the U.S.; and 

   (5)  do not show any payment of the deducted direct deposits.  

3.  He submitted copies of his DD Forms 2139 and 2139-1 (Military Pay Vouchers) and DA Forms 2349 (Military Pay Voucher (Mechanized)).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100030195, dated 19 July 2011.

2.  The applicant provides new evidence in the form of military pay vouchers which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.  

3.  The available military personnel records show he enlisted in the Regular Army 
9 August 1967:

4.  His DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 31 (Foreign Service) he served in Vietnam from 7 February 1968 to 
4 January 1969 and in Germany from 3 October 1969 to 30 July 1970;
      
   b.  item 33 (Appointments and Reductions) he was advanced to SP4 on 
15 April 1969; while assigned to Headquarters and Headquarters Detachment 30th Engineer Battalion, Fort Belvoir, VA; 
   
   c.  item 38 (Record of Assignments) he was assigned to:
   
(1)  Company A, 4th Battalion, 12th Infantry Regiment, 199th Infantry
Brigade from 19 February to 21 May 1968; 

		(2)  Headquarters and Headquarters Company, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade from 22 May to 22 August 1968;

   (3)  Headquarters and Service Battery, 2d Battalion, 40th Artillery
Regiment, 199th Infantry Brigade from 23 August to12 November 1968; 

   (4)  Military Hospital Detachment, 106th General Hospital, Japan from 
13 November 1968 to 4 February 1969;

		(5)  Headquarters and Headquarters Detachment, 30th Engineer Battalion, Fort Belvoir, VA from 4 February to 19 October 1969; and

   (6)  Headquarters and Headquarters Battery, 5th Battalion, 83rd Field Artillery Regiment, Europe from 16 October 1969 to 20 July 1970.

5.  On 30 July 1970, he was released from active duty and transferred to the 
U.S. Army Reserve Control Group (Reinforcement) after serving honorably for 
2 years, 11 months, and 22 days.

6.  He submitted:

   a.  17 DA Forms 2139, rendered for pay period 1 January through 31 March 1968 and 14 November 1968 through 30 July 1970, which show in item 51 (Signature of Payee) that with his signature he acknowledged receipt of the dollar amounts shown as paid in item 44 (Amount Paid);

	b.  12 DA Forms 2139-1, which show in item 11 (Remarks) from:

(1)  1 April through 30 June 1968, a portion of his pay in the form of a 
check was mailed to Chase Manhattan Bank, National Assistance Saigon, Viet Nam, Box 20, APO SF 96243, account number 950-1-348891, and the remainder was disbursed in cash; 

		(2)  1 July through 30 November 1968, a portion of his pay in the form of a check was mailed to Chase Manhattan Bank, 1 Chase Manhattan Plaza, New York, NY, account number 950-1-348891, and the remainder was disbursed in cash; and 

		(3)  7 April through 9 August 1968, that with his signature he acknowledged receipt of the cash amounts shown as paid in item 44. 

	c.  15 DA Forms 2349, from the period 1 March 1969 through 30 June 1970, which show in item 68 (Signature of Payee (or check number) with his signature he acknowledged receipt of the amounts shown as paid in cash.

7.  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. 
8.  The equitable Doctrine of Laches permits dismissal of a claim when an applicant’s unreasonable delay in asserting an error or injustice makes it impossible for the Army to retrieve information necessary to evaluate an applicant’s asserted basis for relief.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his military records should be corrected to show he had enrolled in the DDP and he should be paid any monies owed to him regardless of his missing payroll records and the 1940 Barring Act were carefully considered and found to be without merit.

2.  There is no evidence nor did he submit any evidence showing:

* he initiated any inquiries into the status of his direct deposit requests while still on active duty or after his release from active duty  
* his monies were not directly deposited into the Chase Manhattan Bank
* he applied for direct deposit after his return from Vietnam  

3.  He submitted evidence that clearly shows, while stationed in Vietnam, as acknowledged by his signature, and witnessed by the paymaster, from 1 April through 30 November 1968, that a portion of his pay was to be deposited by check in an account with Chase Manhattan Bank and he received the remainder in cash.

4.  With respect to his alleged entitlement to unpaid pay and allowances, irrespective of the Barring Act, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed.  There is no evidence in his record nor did he submit any evidence that shows he is entitled to any unpaid pay and allowances.  

5.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.



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 to amend the decision of the ABCMR set forth in Docket Number AR20100030195 dated 19 July 2011.



   ________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)                                         AR20110016262





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ABCMR Record of Proceedings (cont)                                         AR20110016262



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