BOARD DATE: 8 October 2013 DOCKET NUMBER: AR20130000594 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 relief from the 6-year barring statute and payment of his full retired pay entitlements effective 1 May 2001, the date he was placed on the Retired List. 2. The applicant states an incorrect pay multiplier was applied when he retired and he received an incorrect amount of retired pay until November 2011 when the error was discovered. He states he was issued back pay for 6 years to 7 July 2005, but he has been denied the remainder of his back pay (55 months) due to the 6-year barring statute. 3. The applicant provides copies of a letter from the Florida Army National Guard (FLARNG) advising him to apply to this Board, his retirement orders, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a letter from the Defense Finance and Accounting Service (DFAS) advising him of the adjustment to his retired pay account. 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. On 8 March 2001, retirement orders issued by the FLARNG show the applicant had 22 years, 5 months, and 2 days of service under Title 10, U.S. Code, section 1405, effective 30 April 2001. Additionally, he had 32 years, 11 months, and 25 days of service for basic pay purposes. 3. On 30 April 2001, he was honorably retired at Fort Stewart, Georgia, and was placed on the Retired List in pay grade E-8 effective 1 May 2001. However, for reasons that are not readily apparent, the applicant's retired pay account was established as having 20 years and 22 days of service under Title 10, U.S. Code, section 1405. 4. On 6 July 2011, the FLARNG notified the applicant that an audit of retiree accounts revealed that an incorrect multiplier had been applied to his account at the time of his retirement and that he was not receiving his correct amount of retired pay. 5. On 21 November 2011, DFAS notified the applicant that based on the change of his service under Title 10, U.S. Code, section 1405, his retired pay had been changed and he was being issued back pay for the past 6 years to 7 July 2005, less Survivor Benefit Plan (SBP) deductions to 1 May 2001. 6. The letter provided by the applicant from the FLARNG, dated 21 December 2012, indicates the applicant was one of many who were notified in 2011 of an error in their military pay accounts and they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute. The letter advised the applicant to apply to this Board. 7. Title 31, U.S. Code, section 3702, prohibits the payment of a claim against the government unless the claim has been received within 6 years after the claim accrues. DISCUSSION AND CONCLUSIONS: 1. While it is not readily apparent whether the error occurred with the FLARNG or the Fort Stewart transition center, the fact remains that the applicant's military pay account was incorrectly reported to DFAS at the time of his retirement and resulted in the applicant being underpaid from 1 May 2001 until 30 September 2011. 2. DFAS has issued the applicant back pay due to him from 7 July 2005 to 30 September 2011; however, he is still due back pay from 1 May 2001 to 6 July 2005, an additional 4+ years. 3. One of the reasons behind the barring act is relieving the government of excessive paperwork and preventing stale, baseless claims which the government cannot substantiate. Given the applicant's 32+ years of service, he is certainly deserving of favorable consideration for his service to his country. Further, documents verifying the applicant's entitlements are readily available. Accordingly, application of the barring statute is not appropriate in this case. 4. It is noted that while DFAS imposed the 6-year barring act in his case, it charged the applicant with SBP costs retroactive to the date of his retirement. If the government is going to claim money it is owed for more than 6 years, in the interest of equity it should also pay money that is owed, especially since the error was through no fault of the individual concerned. Accordingly, application of the 6-year barring statute is not appropriate in this case. 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 showing the applicant's military retired pay account was established by the Army with 22 years, 5 months, and 2 days of service under Title 10, U.S. Code, section 1405, as reflected on his retirement orders at the time of his retirement on 30 April 2001 and paying him any monies due from that date, less any back pay already disbursed. ___________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) AR20130000594 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130000594 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1