IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140017070 


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 a waiver of the Barring Act of 1940.

2.  The applicant states, in effect, he previously applied to this Board (Docket Number AR20130001836, dated January 16, 2013) for entitlement to basic pay and to have this pay sent to him.  However, his case was returned to him and he was told to exhaust his administrative remedies by contacting the Defense Finance and Accounting Service (DFAS) to address his pay issues.  He did so.  On 10 April 2013, DFAS wrote to him and informed him that the claim he believed due to him is barred unless such claim was received within 6 years after the date this claim was received.  DFAS also provided him with a copy of the Barring Act under Title 37, U.S. Code, section 3702 (Authority to Settle Claims). He then wrote to the Secretary of Defense who referred his case to this Board.  

3.  The applicant provides:

* Two letters from the Deputy Assistant Secretary of the Army (Review Boards (DASA (RB))
* Copy of his letter to the Secretary of Defense
* Letter from DFAS and copy of the Barring Act

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 records show he enlisted in the Regular Army on 7 January 1988 and he held military occupational specialty 77F (Petroleum Supply Specialist).  He was advanced to private two (PV2)/E-2 on 7 July 1988 and he served in Germany from 17 July 1988 to 26 April 1990.  

3.  On 21 November 1988, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to obey a lawful order, being found sleeping upon his post as a sentinel, and dereliction in the performance of his duties by failing to keep his weapon secured.  His punishment consisted of a reduction to private (PVT)/E-1. 

4.  On 1 June 1989, he was again advanced to the rank/grade of PV2/E-2. 

5.  On 9 April 1990, by memorandum to the applicant's commander, the clinical director stated that the applicant had been enrolled in the Alcohol and Drug Abuse Program since 11 August 1989 as a command referral.  It further indicated that he had been diagnosed with alcohol dependence.  He was disenrolled on 1 November 1989 for lack of motivation to abstain and to change his behavior to maintain sobriety.   

6.   On 17 April 1990, the applicant's immediate commander notified him of his intent to administratively separate him under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 9, for alcohol rehabilitation failure.  

7.  The applicant consulted with counsel and was advised of the basis for the separation action and its effects, the rights available to him, and the effect of any action taken by his waiving his rights.  He elected not to submit a statement on his own behalf.  He acknowledged his understanding that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were to be issued to him.

8.  Following this acknowledgement, the immediate commander initiated separation action against him.  He recommended an honorable characterization of service.  
9.  The separation authority approved the separation action and directed that the applicant be issued an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 27 April 1990, under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure.  His service was characterized as honorable.  He had completed 2 years, 3 months, and 21 days of creditable active duty.

10.  On 15 January 2008 (ABCMR Docket Number AR20070009571), in response to his petition to change the narrative reason for separation from "alcohol rehabilitation failure" to "medical" the Board determined the evidence presented did not demonstrate the existence of an error or an injustice.  As such, the Board denied his request. 

11.  On 8 May 2008 (ABCMR Docket Number AR20080002179), in response to his request for reconsideration of his previous request to change the reason for his separation from "alcohol rehabilitation failure" to "medical," the Board again determined the evidence he submitted did not demonstrate the existence of an error or an injustice.  The Board denied his request. 

12.  On 16 January 2013 (Docket Number AR20130001836), he submitted another petition wherein he stated he is entitled to basic pay and that this pay needs to be processed to DFAS.  He cited "Title 10, U.S. Code, section 1203, chapter 61, Table 4-3" for his eligibility to basic pay.  He contended, to the Secretary of the Army, that the Army had committed fraud against him by denying him basic pay. 

13.  On 4 March 2013 (Docket Number AR20130005010), he submitted another petition wherein he stated that he was self-referred [for alcohol] and that he was not seen by a psychiatrist.  He added that he was, in effect, erroneously separated for alcohol rehabilitation failure in order to get him out of the Army.  

14.  On 15 March 2013, a staff member of the Board returned his 16 January 2013 request without action (Docket Number AR20130001836) for failure to exhaust his administrative remedies.  The staff member advised him to contact DFAS regarding issues with his basic pay.

15.  On 28 March 2013, a staff member of the Board returned his 4 March 2013 request without action (Docket Number AR20130005010) because he was ineligible for reconsideration (after having been twice considered for the same issue).  


16.  On 10 April 2013, by letter, DFAS advised the applicant that his claim was returned without action.  He had claimed monetary amounts he believed owed to him.  DFAS cited the Barring Act which bars a claim unless it is received within 6 years after the date such claim occurred.  He believed his claim occurred on 27 April 1990 and his claim to DFAS was received by DFAS more than 6 years after the date it occurred.  This barred his claim from consideration.  DFAS also attached a copy of the Barring Act.

17.  On 10 September 2014, after having corresponded with the Secretary of Defense regarding claims for basic pay, by letter, the DASA (RB) informed him that: 

* he may request a waiver of the Barring Act regarding his claim by submitting a request to the ABCMR
* he must provide specifics regarding his claim, including the type of payment, and provide supporting evidence 
* the issue of changing his narrative reason for separation from "alcohol rehabilitation failure" to "medical" would not be reviewed by the ABCMR because he did not qualify for another reconsideration and the decision on that issue was final 

18.  On 1 October 2014, by letter, the DASA (RB) again informed him that claims related to limited use policy, self-referral, and medical claims were previously considered (ABCMR Docket Number AR20070009571 and ABCMR Docket Number AR20080002179), and because he had exhausted his appeal rights with the ABCMR regarding this issue, the ABCMR would not consider any more requests for reconsideration.  

19.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 of that regulation provides the authority and procedures for discharging Soldiers for alcohol or other drug abuse rehabilitation failure.  The service of Soldiers discharged under this section will be characterized as honorable or under honorable conditions.

20.  Title 31 U. S. Code (USC), section 3702, also known as the Barring Act, 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 served on active duty from 7 January 1988 to 27 April 1990 when he was discharged under the provisions of chapter 9 of Army Regulation 635-200 by reason of alcohol rehabilitation failure.  He received an honorable characterization of service. 

2.  He contends that he is entitled to basic pay.  However, he neither specified the month(s)/year(s) of basic pay nor does he provide supporting documentary evidence such as Leave and Earnings Statements to show the error.  In the absence of documentary evidence of an error or an injustice, there is insufficient evidence to grant him 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)                                         AR20140017070





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ABCMR Record of Proceedings (cont)                                         AR20140017070



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