IN THE CASE OF:
BOARD DATE: 6 December 2012
DOCKET NUMBER: AR20120009722
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, in effect, correction of his military pay records and payment of all back pay he is due.
2. The applicant states he was on the advance party for his unit for Exercise REFORGER (Return of Forces to Germany). After the main party of his unit arrived in Germany everyone was paid. However, the amount of pay he and the others received was incorrect. They were told their pay would be corrected when they returned to Fort Riley, Kansas; however, his pay was never corrected.
3. The applicant provides no additional documentary evidence in support of his application.
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 enlisted in the Regular Army on 3 April 1979 for a period of
4 years.
a. Upon completion of training he was awarded military occupational specialty 51B (Carpentry and Masonry Specialist).
b. He was assigned to Company B, 34th Engineer Battalion, Fort Riley, Kansas, on 27 July 1979.
c. He was promoted to specialist four/pay grade E-4 with a date of rank of
1 August 1980.
3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably released from active duty (REFRAD) on 2 April 1983 based on expiration term of service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.
4. U.S. Army Reserve Personnel Center, St. Louis, MO, Orders D-01-004776, dated 23 January 1985, honorably discharged the applicant from the USAR effective 22 January 1985.
5. A review of the applicant's military personnel records failed to show any evidence that he served overseas in Germany or that he initiated a pay inquiry.
6. 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 contends that his military pay records should be corrected and he should be paid all of the back pay he is due because he was not properly paid during Exercise REFORGER.
2. The sincerity of the applicant's comments is not in question. However, there is no evidence of record, and the applicant provides insufficient evidence, to show he initiated a pay inquiry because he was not properly paid during the period of military service under review.
3. 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.
a. The applicant was REFRAD on 2 April 1983 and he was discharged from the USAR on 22 January 1985.
b. The available evidence does not show the applicant took action to rectify any pay-related issues with the Army Finance and Accounting Center or, later, the Defense Finance and Accounting Service.
4. Therefore, in view of all of the foregoing, there is no basis for granting the 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 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) AR20120009722
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ABCMR Record of Proceedings (cont) AR20120009722
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