IN THE CASE OF:
BOARD DATE: 31 July 2012
DOCKET NUMBER: AR20120002560
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 combat pay for his service in Korea.
2. The applicant states he spent a year in combat in Korea. If he did receive combat pay, he doesn't remember it.
3. The applicant provides his DD Form 214 (Report of Separation from the Armed Forces of the United States) with an effective date of 19 August 1952.
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. 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 is the DD Form 214 that he provided.
3. On 27 June 1949, he enlisted in the Regular Army for a period of 3 years.
4. He served 11 months and 7 days foreign service.
5. He was awarded or is authorized the:
* Korean Service Medal with five bronze service stars
* United Nations Service Medal
* Combat Infantryman Badge
* Silver Star
* Purple Heart with two Oak Leaf Clusters
6. He was released from active duty on 19 August 1952.
7. 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.
8. 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. This 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.
9. 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. His DD Form 214 acknowledges his service during the Korea Conflict. The form shows he served 11 months and 7 days foreign service and he was awarded a Silver Star, three Purple Hearts, the Combat Infantryman Badge, and the Korean Service Medal with five bronze service stars. Therefore, his entitlement to combat pay is not in question. However, without evidence to the contrary, it must be presumed he received combat pay during the period he was in Korea.
2. The lapse of almost 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 by 1972, 20 years after his separation (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 must be 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 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) AR20120002560
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ABCMR Record of Proceedings (cont) AR20120002560
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