BOARD DATE: 23 April 2015
DOCKET NUMBER: AR20140016339
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 military records to show entitlement to reimbursement of allotments that were never received.
2. The applicant states, in effect, that he established a monthly allotment from his military pay in the amount of $200 that was to be provided to his father. This allotment began in December 1976 and ended in June 1978, totaling $3,400. He contends that none of these monthly allotment checks were received by his father. He argues that he did not discover the error until 1987 when he discussed the allotments with his father and was told that none of them had ever been received. He further argues that the money was to be invested by his father in Coca Cola stock that would have been worth $500,000 today. He acknowledges that his father received a letter, dated 21 October 1988, from the U.S. Army Finance and Accounting Center (USAFAC) stating it had been determined that none of the checks had been cashed and had been replaced. He contends the checks were never replaced. After his father passed in 1993 he had forgotten about this matter. In 2012 he was recovering from a lengthy hospital stay and discovered the grave injustice while going through some old military records. He now wants the missing money repaid with interest which would be about $126,539.75 based on a compounded ten percent interest rate.
3. The applicant provides copies of:
* Jumps-Army Leave and Earnings Statements (Army LES's) from November 1976 to October 1978
* DD Form 214 (Report of Separation from Active Duty), effective
22 October 1978
* DD Form 256A (Honorable Discharge Certificate) from the U.S. Army Reserve, dated October 1981
* Letter from the Office, Chief of Legislative Liaison, dated 21 October 1988
* Newspaper clippings from the Washington Post, dated 27 August 2014
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. On 23 October 1975, the applicant enlisted in the Regular Army.
3. The Army LES's provided by the applicant show that in November 1976 he initiated an allotment in the amount of $200 per month which was to be sent to his father in Vienna, Virginia. It appears this allotment remained in effect from December 1976 to about May or June 1978.
4. On 22 October 1978, the applicant was released from active duty. He had attained the rank of private first class and had completed 3 years of creditable active service.
5. A letter from the Chief of Legislative Liaison, dated 21 October 1988, states that officials at USAFAC had submitted stop payments on the checks that were issued to the applicant's father. The letter further stated that there was an expected delay of 4 to 6 weeks. He was expected to receive replacement checks if it was found the original checks had not been cashed. If the original checks had been cashed, he would receive copies of the checks and a claim form.
6. The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that his military records should be corrected to show entitlement to recover allotments that were never received. He argues that none of the allotments in the amount of $200 were received by his father between 1976 and 1978.
2. It has been approximately 26 years since the applicant's father was informed by his Congressman that USAFAC had stopped payment and would reissue the checks or provide evidence that they had been cashed with a claim form. At that time, he was advised of a 4 to 6 week delay. The time to have taken action was after those few weeks, not now, after 26 years have passed. USAFAC no longer exists. It was replaced by the Defense Finance and Accounting Service (DFAS), which currently performs those pay functions. It is highly unlikely DFAS has the ability to resurrect accurate data concerning this issue. Regrettably, due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches. Accordingly, 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 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.
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