IN THE CASE OF BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20170000749 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20170000749 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding "USAREUR" to item 24c (Foreign and/or Sea Service) of his DD Form 214. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. ____________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. IN THE CASE OF: BOARD DATE: 19 September 2018 DOCKET NUMBER: AR20170000749 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 item 32 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he served in Germany. He further requests travel pay from Germany to Fort Lewis, WA. 2. The applicant states there is no indication on his DD Form 214 that he served in Germany even though he spent over 2 years there. Upon his arrival at Fort Lewis, WA, he was paid travel pay from Germany to Fort Lewis, WA; however, upon his discharge, the travel pay was recouped and he was told he was not entitled to travel pay. 3. The applicant provides a copy of his DD Form 214, a self-authored statement and a statement from a former comrade. 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 Regular Army on 7 March 1956. 3. Section 5 (Service Outside Continental United States (CONUS)) of his DA Form 24 (Service Record) shows he departed CONUS on 15 September 1956 and he arrived in Bremerhaven, Germany on 23 September 1956, for duty in United States Army Europe (USAREUR). On 22 May 1959, he departed Frankfurt, Germany and he arrived in CONUS on 23 May 1959. 4. On 4 March 1960, the applicant was honorably released from active duty upon the expiration of his term of service. He completed 3 years, 11 months and 28 days total active service. Item 24c shows he completed 2 years, 8 months and 9 days foreign and/or sea service. 5. There are no financial records available for the applicant, which would have validated whether or not he received his travel pay. 6. The applicant provides a statement from a former comrade who attests to the applicant's service in Germany. The applicant further provides a self-authored statement in which he claims he flew military transport from Germany to McGuire Air Force Base, NJ. He then flew commercial air on leave to MS and rode the train from MS to Fort Lewis, WA. Upon arrival at Fort Lewis, WA, he was paid $190.00 for travel for the commercial portion of his travel. However, upon his discharge, he was told by finance that he was not entitled to the travel pay and the pay was recouped out of his lump sum leave and regular pay. To this day he still believes he is entitled to travel pay. REFERENCES: 1. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. The regulation, in effect at the time, stated for item 24c, to enter the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which the service was performed. Item 32 will be used to complete entries too long for their respective blocks. 2. 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. 3. The equitable doctrine of laches permits dismissal of a claim when an applicant’s unreasonable delay in asserting an error or injustice makes it impossible for the Army to retrieve information necessary to evaluate an applicant’s asserted basis for relief. DISCUSSION: 1. The evidence shows the applicant served in Germany in the U.S. Army European theater of operations. While the applicable regulation does not provide for listing the country the applicant served in overseas, it does allow for listing the last overseas theater in which the service was performed. There is not bar to correcting item 24c of his DD Form 214 to show he served in USAREUR. 2. At this point in time, it cannot be determined whether the applicant received his travel pay. It is noted he performed foreign service during his period of enlistment. 3. Regrettably, there is no evidence to show whether the applicant was paid travel pay. By statute, the applicant is barred from asserting this claim. Although the Barring Act does not prevent the ABCMR from making a correction, it may nonetheless deny relief under the doctrine of laches because the applicant’s delay in seeking relief has made it impossible to determine whether an error or injustice occurred. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000749 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000749 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2