IN THE CASE OF:
BOARD DATE: 18 June 2015
DOCKET NUMBER: AR20140017999
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, the brother of a deceased former service member (FSM), requests payment of the FSM's lost benefits and all the medals he is authorized.
2. The applicant states that when the FSM's discharge was changed from dishonorable he did not receive his pay for time served.
3. The applicant provides copes of
* FSM's birth certificate
* 31 August 1982, Leesburg Police Department letter
* FSM's Durable General Power of Attorney, dated 17 June 1992
* the FSM's death 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 29 January 1954, The FSM was convicted by a general court-martial, in accordance with his plea of being absent without leave (AWOL) from 3 August 1953 to 16 January 1954. He was sentenced to a dishonorable discharge (DD), forfeiture of all pay and allowances and confinement for six months. The Army Board of Review affirmed the finding of guilty and the sentence on 25 February 1954.
3. ABCMR Docket Number AC90-08397A, dated 20 May 1982, shows his request for an upgrade of his DD was denied. The Record of Proceedings (ROP) further shows that:
a. The Commander, Army Reserve Center, was requested to administratively correct the FSM's records to show he was awarded the Bronze Star Medal and all the additional awards and decorations he was entitled to for his combat service during World War II and the Korean Conflict.
b. While an upgrade of his DD was denied, the Board granted approval to change his records to show previous periods of active duty as honorable and to issue him a certificate showing he was honorably discharged on 18 September 1951 as a corporal.
c. A memorandum addressed to the Commander, U.S. Army Reserve Center requested necessary action be taken to effect the records corrections and directed that the Defense Finance and Accounting Service (DFAS) be furnished a copy of the correction notification letter so that settlement of any monies due may be accomplished.
4. A 22 April 1998 ABCMR letter erroneously informed the applicant the FSM's discharge was upgraded to honorable on 20 May 1992.
5. A 15 December 1999 ABCMR letter addressed to a Member of Congress clarifies the 22 April 1998 letter and informs the Congressman that the Board found the FSM's DD correct and just. The Board did, however, direct the FSM be issued an honorable discharge certificate for a prior honorable period of service for which he did not have a certificate. The letter further states that the FSM was not due any back pay, and a careful reading of the letter reveals the ABCMR did not say any monies are due, but only states as a standard requirement that the correction issuing agency was to notify DFAS in the event monies are due.
6. ABCMR Docket Number AR20040006627, dated 14 April 2005 shows the applicant's request for an honorable discharge based on clemency for his deceased brother was denied.
7. The applicant's 3 October 2011 application for all the FSM's benefits from 1951 until his death was administratively closed on 7 November 2011.
DISCUSSION AND CONCLUSIONS:
1. The applicant did not provide any evidence to show the FSM was due any back pay or other benefits.
2. The FSM's DD was not upgraded as the applicant asserts. All previous requests for an upgrade of the FSM's DD were denied.
3. In view of the above, this 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.
ABCMR Record of Proceedings (cont) AR20120005678
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ABCMR Record of Proceedings (cont) AR20140017999
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