BOARD DATE: 26 February 2014
DOCKET NUMBER: AR20130010856
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 his record be changed to show he did not drill with his unit in fiscal year (FY) 2009.
2. The applicant states Department of Veterans Affairs (VA) records indicate he drilled with his unit 33 days in FY 2009; however, he did not drill in FY 2009, 2010, 2011, or 2012 because he was severely ill and had major surgery in 2009. After surgery he was rated 60 percent disabled, placed on the Temporary Disability Retired List (TDRL), and subsequently medically retired.
3. The applicant provides:
* a self-authored statement
* Orders D134-09
* two memoranda
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* four letters
* Orders 090-0182
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* ARPC Form 249-E (Chronological Statement of Retirement Points)
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 U.S. Army Reserve (USAR) on 30 April 2001.
3. Documents maintained in the military pay system indicate the applicant participated in battle assemblies with the 373rd Quartermaster Battalion for 9 days in 2009. The documents indicate the names of two different pay technicians at the unit who coded the applicant's attendance into the military pay system which also mirrors information contained in his personnel records.
4. The applicant's record contains a DA Form 199 which shows a PEB convened on 24 April 2009 at Fort Lewis, WA, for the purpose of evaluating his medical condition. Based on a review of the objective medical evidence of record, the PEB determined his medical and physical impairments prevented reasonable performance of duties required by his grade and military occupational specialty. The PEB further determined he should be placed on the TDRL with a reexamination during October 2010.
5. On 18 June 2009, he was placed on the TDRL in the rank/grade of sergeant/E-5.
6. During the processing of this case, on 18 July 2013, an advisory opinion was obtained from the Director, Operations Management Division, U.S. Army Human Resources Command. The advisory official determined the applicant's drills for the USAR were correct. He stated there was no regulatory guidance or justification to adjust the applicant's drill time, as requested. The applicant's unit detail report showed he was last paid for drill performed on 26 April 2009, and all of the documents in his records appeared to be correct. The applicant was further advised to contact the Defense Finance and Accounting Service (DFAS) if he obtained evidence to suggest his unit inaccurately reported him present at drills for which he was paid. DFAS would subsequently recoup the erroneous payments.
7. On 19 July 2013, the applicant was provided a copy of the advisory opinion for review and comment. The applicant did not provide a response.
8. Department of Defense Financial Management Regulation, Volume 7A provides military pay policy and procedures active duty and reserve pay. Paragraph 010201 provides guidance on basic pay entitlements and states that members are entitled to receive pay according to their pay grades and years of service if they are on active duty in a pay status. There are no provisions for paying members for service not performed.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to have his record changed to show he did not drill with his unit in FY 2009 has been carefully examined; however, by law and regulation, members are authorized to receive pay and allowances while in an active pay status.
2. Documents maintained in the military pay system indicate the applicant participated in and was paid for battle assemblies with the 373rd Quartermaster Battalion in 2009. The documents indicate the names of two different pay technicians at the unit who coded his attendance into the military pay system which also mirrors the information contained in his personnel records.
3. There is insufficient evidence in the applicant's records and he provides insufficient evidence to show his unit erroneously reported him present for drills he was paid. In addition, the applicant provides no evidence to show he sought to reimburse monies he was paid for drills he claims he did not perform.
4. In light of the foregoing, the applicant provides insufficient evidence and his records contain insufficient evidence to support his contention that his unit incorrectly reported him present for drills for which he was paid. Therefore, he is not entitled to 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) AR20130010856
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