IN THE CASE OF:	  

		BOARD DATE:  9 July 2013

		DOCKET NUMBER:  AR20120021746 


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 payment of monies owed at the rank/grade of technical sergeant (TSgt)/E-5 for 31 months while he was in a prisoner of war (POW) status. 

2.  The applicant states his rank at the time of his capture in Korea was corporal (CPL).  He was in a POW status for 31 months.  His grade at the time of his discharge was TSgt.

3.  The applicant provides:

* Previous correspondence from the Board
* Letter, dated 21 May 1993, from the Defense Finance and Accounting Service (DFAS)
* Second letter from DFAS, undated
* 1953 Honorable Discharge Certificate
* 1951 DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Letter, dated 4 January 1954, from the Veterans Administration (VA)
* Letter, dated 5 November 1955, from the Settlement Division - Finance Center, U.S. Army
* Letter, dated 17 June 1983, from the VA
* AFFE Form 548(OT) (Personnel Data Sheet)
* A list of names kept by the applicant during captivity
* Marriage certificate

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 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.  However, the applicant provides sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he was called from inactive duty and entered active duty on 29 September 1950.  It also shows his grade, rate or rank at the time of entry into active service as "CPL." 

4.  His DD Form 214 also shows at the time of his separation, his most significant duty assignment (i.e., his last duty assignment) was with K Company, 9th Infantry Regiment, Korea.

5.  His DD Form 214 further shows he completed 3 years and 23 days of creditable active military service, of which 2 years, 9 months, and 18 days was foreign service.  He was discharged on 20 October 1953. 

6.  Item 3 (Grade - Rate - Rank and date of Appointment) of his DD Form 214 shows the rank/grade of SGT - Temporary (T), with a date of rank as 14 March 1951. 

7.  He submitted an AFFE Form 548(OT) that shows he was captured on 12 February 1950 in Chowonri, Korea, and he returned to military control on or about 19 August 1953 (the date of return is hand-written).  Item 2 of this form shows the grade of CPL; however, this grade is crossed out and the word "SGT" is hand-written on top of it. 


8.  On 4 January 1954, the VA awarded him monthly payment for residual of frozen feet, skin condition of hands and feet, and residuals of pneumonia, at a combined rating of 40 percent.

9.  On or about 5 November 1955, the Settlements Division - Finance Center, U.S. Army, Indianapolis, IN, notified him that:

	a.  A complete audit of his pay account was made and it was determined there was no additional monetary amounts due him.  The records indicated he was promoted to SGT effective 1 May 1953 per Department of the Army General Orders (DAGO) Number 39 and he was paid at that grade from 1 May 1953 through his discharge date on 20 October 1953.  This amount was paid in three installments.

	b.  Promotions under Public Law 490, 77th Congress, as amended (Missing Persons Acts), were authorized by DAGO Number 39, dated 1953.  The effective date of promotion for those persons who were in a captured status prior to xxxx (illegible date) was 1 May 1953.  The date of rank, which in his case is 14 March 1951, is not the effective date of promotion and is not the effective date for pay purposes. 

10.  On an unknown date, by letter, DFAS notified the applicant that their office reviewed his claim regarding the payment of leave lost while in a POW status but that office was unable to verify the highest rank held in captivity, years in service at the time of release from captivity, and whether he had dependents at the time he was held in a POW status.  Such information was necessary for the computation of any supplemental payment.  The letter added that DFAS had exhausted the means of confirming the needed information and that no supplemental payment could be made until additional information, such as a DD Form 214, pay record, and/or Western Union telegram to family from the chain of command could be provided. 

11.  The VA issued him a letter on 17 June 1983 confirming he was a POW for 31 months in Korea. 

12.  On 21 May 1993, by letter, DFAS notified the applicant that he would be issued a check as payment for lost leave while a POW in the Korean Conflict, as authorized by Public Law 102-190, dated 5 December 1991.

13.  Public Law 102-190 (National Defense Authorization Act of 1992-1993) directed the Secretary of the military department concerned to pay a specified conditional amount representing accrued leave to each individual who was held as a prisoner of war during the Korean conflict.  The law required the individual claiming such pay to have adequate records documenting the period of POW status and the grade held by such individual during such period, as well as other necessary information.  The law also required such payment to be made within six months after enactment of this Act.

14.  Public Law 490, 77th Congress, dated 7 March 1942, codified in statute as Title 50, U.S. Code, section 1002, repealed on 6 September 1966, provides for continuing payment of pay and allowances of personnel of the Army, Navy, Marine Corps, and Coast Guard, including the retired and Reserve Components thereof, during periods of absence from post of duty, and for other purposes.  Under the provisions of Section 9 of the "Missing Persons Act," Public Law 490, 77th Congress, 7 March 1942, as amended, the Chief of the Casualty Branch, Adjutant General Office, made determinations as to whether in the absence of official reports of other information received, which was deemed to establish conclusively the fact of death, was to be construed and acted upon as official reports of death, missing in action, or captured. 

15.  Public Law 490 states that any person who is in active service and is officially reported as missing, missing in action, interned in a neutral country, or captured by an enemy, shall, while so absent, be entitled to receive or to have credited to his account the same pay and allowances to which such person was entitled to at the beginning of the absence or may become entitled to thereof provided that such person shall not have been officially reported as having been absent from his post of duty without authority and provided further that expiration of the agreed term of service during the period of such absence shall not operate to terminate the right to receive such pay and allowances and provided that should proper authority subsequently determine that the person concerned shall have been absent from his post of duty without authority, such person shall be indebted to the Government in the amount for which payments have been made or pay and allowances credited to his account in accordance with the provision of this Act during such absence.

16.  Title 31 U.S. Code, Section 3702, also known as the barring statue, 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 statues 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 he is entitled to pay and allowances at the TSgt rank while in a POW status.

2.  None of the applicant's military records is available for review with this case.  However, the available evidence, provided by the applicant, shows he was ordered to active duty from inactive duty on 29 September 1950.  He held the rank of CPL at the time. 

3.  His DD Form 214 shows he completed 2 years, 9 months, and 18 days of foreign service in Korea and other available evidence shows he was in a POW status from 12 February 1951 through 19 August 1953, a period of 2 years, 6 months, and 8 days.  This indicated he arrived in Korea in or around January 1951.  His DD Form 214 shows he was appointed to the temporary grade of SGT on 14 March 1951.  

4.  After his discharge, he appears to have communicated with the servicing finance officer (prior to DFAS).  In November 1955, by letter, the Settlements Division, Finance Center, U.S. Army, notified him that in regard to his claim for payment of the difference in pay between the grade of CPL and SGT, a review of pay account was made and it was determined that there were no additional amounts due him.  The letter added that the record indicates he was promoted to SGT on 1 May 1953 in accordance with DAGO Number 39, and paid at the grade of SGT from 1 May 1953 through 20 October 1953, date of discharge, in three installments.

5.  The applicant's records remain incomplete today.  While his POW status is not in question, as indicated by the November 1955 letter from Army finance, promotions under Public Law 490, 77th Congress, as amended (Missing Persons Act) were authorized by DAGO Number 39, dated 1953.  The effective date of promotion for those persons who were in a captured status prior to the enactment of the law was 1 May 1953.  The date of rank which in his case is 14 March 1951 is not the effective date of promotion and is not the effective date for pay purposes. 

6.  Regretfully, in the absence of his contemporaneous pay records, promotion and/or appointment orders, discharge orders, and other related documents, there is insufficient evidence to support his entitlements to any benefits.  


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)                                         AR20120021746





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ABCMR Record of Proceedings (cont)                                         AR20120021746



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