IN THE CASE OF:
BOARD DATE: 10 January 2013
DOCKET NUMBER: AR20120012726
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 he be paid the hazardous duty bonus pay that he was promised by his commander in July 1944.
2. The applicant states that he did not receive the hazardous duty bonus pay that was promised by his commander in July 1944, for his service in the China, Burma, and India Theaters with the 716th Ordnance Ammunition and Demolition Company.
3. The applicant provides copies of his letters to President Obama and General O***, Chief of Staff of the Army.
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 that the applicant's records were lost or destroyed in that fire. However, there are sufficient documents available to conduct a fair and impartial review of this case.
3. The applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) shows:
a. he was inducted into the Army of the United States on 3 November 1943 and entered active duty on 24 November 1943.
b. his organization is shown as the 3169th Ordnance Motor Maintenance.
c. his military occupational specialty and battles and campaigns are not listed.
d. he was awarded the Army Campaign Medal, Asiatic-Pacific Campaign Medal, Army Good Conduct Medal, World War II Victory Medal, and was issued the Army Lapel Button.
e. he was separated on 26 May 1946 at Fort Dix, New Jersey.
4. He re-entered active duty on 5 September 1950 and served until he was separated on 1 September 1951.
5. The applicant provides:
a. a letter he sent to President Obama.
b. a letter addressed to General O***, in which he describes his family's military service history, his military training, and an incident that occurred while he served in India in World War II. An accidental explosion killed members of his unit and he is the only survivor. All the Soldiers in his squad were supposed to have received hazardous duty pay and a bonus. He did not receive the promised pay or bonus.
6. The doctrine of laches is defined by Blacks 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.
DISCUSSION AND CONCLUSIONS:
1. There is no available evidence, almost 70 years later, showing the applicant was authorized or promised any hazardous duty pay or bonus or, if so, if it was paid. An arbitrary ruling in his favor, without knowing what his records would have shown, would cause prejudice to the Government.
2. Regrettably, in view of the above the applicant's request should be denied.
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) AR20110007895
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20120012726
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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