IN THE CASE OF

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120005935 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his foreign service as 3 years and 3 months vice 2 years and 3 months.  He also requests the difference in mustering out pay (MOP) plus interest if his request is granted.

2.  He states:

	a.  someone was not doing their job or they knew what they were doing by trying to save the Army money.  

	b.  his 1 day of absence without leave (AWOL) was a "bunch of crap" because he had perfect attendance. 

3.  He provides his DD Form 214.

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 applicant's complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available record shows he enlisted in the Regular Army on 16 August 1954.

4.  On 19 April 1958, he was honorably discharged after completing a total of 3 years, 8 months, and 3 days of active military service.

5.  His DD Form 214 shows in:
	a.  item 24c (Foreign and/or Sea Service), he completed 2 years, 3 months, and 12 days of foreign service; 

	b.  item 32 (Remarks) he:

		(1)  last served overseas in U.S. Army Europe and

		(2)  had 1 day lost under Section 6 (a) Appendix 2b, Manual for Court-Martial, 1951.

	c.  item 34 (Signature of Person Being Transferred or Discharged) he authenticated his DD Form 214 with his signature.

6.  Item 34 of his DD Form 214 does not show he was paid MOP.  

7.  There are no financial records available for the applicant which would have validated his MOP on 19 April 1958.  

8.  He provided a self-authored statement wherein he provided a synopsis of his military service to include his enlistment, service overseas, failure to stand an inspection, and two truck accidents and the subsequent injuries as a result of these accidents.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, 
discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  The instructions for item 24c stated to enter the total period of active duty served outside of the continental limits of the United States for the period covered by the DD Form 214 and to enter the last overseas theater in which the service was performed (i.e., USARPAC (U.S. Army Pacific)).

10.  Public Law 82-550 provided that each person eligible to receive MOP would receive one-third of the stipulated amount at the time of final discharge and the remaining amount of such payment would be paid in two equal installments – one month and two months, respectively, from the date of the original payment.  Each person eligible to receive MOP would receive the stipulated amount at the time of discharge or relief from active service or, at the option of the person so eligible, at the time of discharge or release for the purpose of enlistment, reenlistment, or appointment in a regular component of the Armed Forces.

11.  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. 

12.  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.  

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he served overseas for 3 years and 3 months vice 2 years and 3 months and that he may be entitled to additional MOP were carefully considered. 

2.  Although he submitted a self-authored synopsis of his military service, in the absence of his records there is no corroborating evidence nor did he submit any corroborating evidence that shows he served in an overseas location for 3 years and 3 months and did not incur 1 day of AWOL.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.
3.  At this point in time the amount of his MOP cannot be determined, or if in fact it was not paid correctly.  It is noted he performed foreign service during his period of service, one of the requirements for being eligible to receive MOP.

4.  Regrettably, there is insufficient evidence to show whether the applicant was paid the correct amount in MOP or even that he was authorized MOP.  By statute, the applicant is barred from asserting this claim.  Although the ABCMR is not prevented from making a correction by the Barring Act, it may nonetheless deny relief under this doctrine of laches because the applicant’s delay in seeking MOP has made it impossible to determine if an error or injustice occurred.  

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)                                         AR20120005935





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ABCMR Record of Proceedings (cont)                                         AR20120005935



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