MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            2 May 2002                  
	DOCKET NUMBER:   AR2001065364

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be paid the Hazard Pay to which he is entitled.

APPLICANT STATES:  That, prior to completion of training as a demolitions specialist, they were informed that due to some irregularities found in some engineer outfits Hazard Pay was being suspended.  They were assured this was only temporary.  When he was discharged, he was told there was still a hold on Hazard Pay ($50.00 per month).  He was instructed to apply to the Finance Center and after a few months he would receive his accumulated Hazard Pay with interest.  When he did apply, he was told there had been a fire and records were destroyed.  

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  Information contained herein was obtained from alternate sources.

After having had prior service, the applicant enlisted in the Regular Army on        5 November 1951.  Around February 1953, he completed the five-week Demolition, Mines, and Booby Traps course.  He performed duties as a demolition specialist for 9 months.  He separated on 12 October 1953.

In the processing of this case, an advisory opinion was obtained from the Defense Finance and Accounting Service (DFAS).  DFAS recommended denial of the applicant’s request as his pay records are no longer available to verify the payment of Hazard Pay.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He stated that the fact that qualification for the recommendation of denial was unavailability of his pay records was particularly grievous.  Had he been provided a copy of those records, he could have protected them and kept them available.  Now through no fault of his own he is being denied what is rightfully his and has been rightfully his for almost 50 years.  

Title 31 U. S. Code, section 3702, also known as the barring statute, 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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:
1.  It appears the applicant was told, when he was discharged in 1953, to apply to the Finance Center for payment of his due Hazard Pay.  It appears the applicant waited more than 40 years to do so, during which time a fire destroyed millions of records at the National Personnel Records Center and finance lost or otherwise discarded records no longer needed because the statute of limitations for the filing of claims had expired.  

2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  After more than 40 years, it cannot be determined from the available records that the applicant’s records are in error and he has failed to submit evidence that would satisfy this requirement.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__fne___  __wtm___  __cjp___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001065364	
SUFFIX		
RECON		
DATE BOARDED	20020502	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.