BOARD DATE: 31 January 2013 DOCKET NUMBER: AR20120007744 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, in effect, correction of his records to show his retired pay was calculated based on his inactive duty service under Title 10, U.S. Code, section 1405. 2. The applicant states he was not aware that an error had been made in the amount of his monthly retired pay until a review of his military retirement account was made by the Florida Army National Guard (FLARNG). He forwarded a request for correction to the Defense Finance and Accounting Service (DFAS) on 2 August 2011 and his retired pay was corrected. However, due to the 6-year barring statute, he was only issued back pay for 6 years instead of the full 8 years since his retirement date. Because the Survivor Benefit Plan (SBP) cost is not subject to the 6-year barring statute, the SBP cost was deducted from his back pay for the full 8 years. He believes it is an injustice that the barring statute applies to him because he had no knowledge of the error made during his outprocessing until the review of his retired pay records. 3. The applicant provides his retirement orders, DA Form 2339 (Application for Voluntary Retirement), letter from DFAS, memorandum from the FLARNG, and two fax cover sheets. CONSIDERATION OF EVIDENCE: 1. On 30 January 2003, the FLARNG published Orders  Number P030-037 which directed the applicant's release from active duty effective 30 April 2003 and placement on the Retired List effective 1 May 2003. 2. In a memorandum dated 26 July 2011, the applicant was informed by the FLARNG that a recent review of his military retirement account reflected an error in his monthly retired pay. The FLARNG indicated the error was due to several service time calculations in his retirement orders which more than likely occurred during his out-processing at the transition center. He was also informed that the FLARNG contacted DFAS when the errors were discovered and submitted supporting documentation to DFAS to correct the pay discrepancy. However, because the FLARNG Human Resource Office no longer had jurisdiction or administrative control over his records or retirement account, their attempts to correct his retired pay had been unsuccessful. He was advised to pursue correction directly with DFAS. 3. A fax call report indicates he submitted his request for correction of his retired pay to DFAS on 2 August 2011. 4. In a letter, dated 22 November 2011, he was informed by DFAS that his retired pay record had been corrected. He was also informed that due to the 6-year barring statute, they could only issue payments for within 6 years prior to the receipt date of notification. In his case, DFAS received the notification on 2 August 2011. 5. The DFAS letter shows he received back pay for the period 3 August 2005 through 30 September 2011 based on the 6-year barring statute. The letter also shows that based on correction of his retired pay, SBP costs (not subject to the 6-year barring statute) for the period 1 May 2003 through 30 September 2011 wre deducted from his back pay. 6. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the Government. In essence, if an individual brings a claim against the Government for monetary relief, the barring statute provides that the Government is only obligated to pay the individual 6 years from the date of the approval of the claim. Challenges to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant retired on 30 April 2003. The evidence also shows an error in the calculation of his retired pay was discovered which would entitle him to back pay and that he was informed of the discrepancies in July 2011. 2. The evidence further shows he immediately requested correction of his retired pay account and that DFAS corrected his retired pay, confirming entitlement to back pay. However, based on the 6-year barring statute, he was only issued payments back 6 years instead of the full 8 years since his retirement date. 3. It appears the error in his retired pay was a result of an administrative oversight by Army personnel and not through his own fault. As a result, it would be appropriate and serve the interest of justice and equity to correct the applicant's records to show the information regarding his time-in-service calculation was sent to DFAS on 30 April 2003. Further, based on this records correction, it would also be appropriate to provide him all back retired pay and allowances due from 1 May 2003 through 2 August 2005 which he was previously denied under the barring statute. BOARD VOTE: ____X_ ___X_____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his records to show the correct information regarding his time in service calculations was sent to DFAS on 30 April 2003 and by paying him all back retired pay and allowances due from 1 May 2003 through 2 August 2005. __________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) AR20120007744 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120007744 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1