RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-02864
INDEX CODE: 135.05
COUNSEL: None
HEARING DESIRED: No
MANDATORY CASE COMPLETION DATE: 19 Mar 07
_________________________________________________________________
APPLICANT REQUESTS THAT:
He receive Reserve retired pay effective 7 Mar 87, his 60th birthday.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He has been trying to apply for pay since he retired in 1987. He was
told his records were lost and he was never in the military. This
mishap has deprived him of his legal benefits.
The applicant’s complete submission, with attachments, is at Exhibit
A.
_________________________________________________________________
STATEMENT OF FACTS:
The following information was extracted from official documents
provided by the applicant (Exhibit A), his military records (Exhibit
B), and the advisory opinion (Exhibit C).
In a letter dispatched on 4 Aug 72, HQ ARPC/DPA notified the applicant
of his eligibility for Reserve retired pay at age 60, having completed
the required years of service [20 or more satisfactory years of
service and last 8 years earned as a Reservist].
By Special Order No. 177, dated 11 Sep 72, the applicant was relieved
from assignment with the 106th Air Refueling Wing National Guard Air
Base (NGAB), Suffolk County Airport, NY, and honorably discharged in
the grade of major from the New York Air National Guard (NYANG)
effective 5 Aug 72. He was transferred to the USAF Reserve (USAFR)
with assignment to HQ ARPC, Denver, CO, effective 6 Aug 72. His
mailing address was indicated as 651 Kildare Crescent Street, Seaford,
NY 11783.
On 6 Mar 79, the applicant applied for full coverage for his wife and
children under the Survivor Benefit Plan (SBP), then changed it to
spouse only coverage on 23 Mar 79.
On 17 Oct 86, HQ ARPC/DPAR wrote to the applicant at his indicated
mailing address that he was eligible to apply for retired pay under
the provisions of Title 10, USC, Section 1331, to begin on his 60th
birthday. He was advised to sign and return the enclosed Application
for Retired Pay at least 90 days prior to his 60th birthday.
The applicant was 60 years old on 7 Mar 87.
On 26 Mar 87, HQ ARPC/DPAR again wrote to the applicant at the Kildare
Crescent address, by certified mail, indicating they had not received
his completed application forms for retired pay. He was asked to
respond as soon as possible and that if his application was not
received by 6 Apr 87, no further action would be taken by their office
and controls would be deleted, i.e., if he later desired retired pay
it would be his responsibility to notify their office. He was
provided a toll-free phone number if he had questions concerning the
forms. However, the letter was returned on 7 Apr 87, indicating the
applicant’s forwarding address had expired.
On 28 May 04, the applicant requested a copy of his records so that he
could apply for concurrent disability payments. He was advised by HQ
ARPC/DPSPP that his records were not maintained by HQ ARPC and his
request was forwarded to the National Personnel Record Center (NPRC).
On 9 Jun 04, the Veterans of Foreign Wars (VFW) office advised the
applicant to forward a copy of his NGB Form 22, Report of Separation
and Record of Service in the Air National Guard of New York, to HQ
ARPC to review his records to determine his eligibility for retired
pay. The applicant did so on 2 Aug 04, indicating he was attempting
to file for “dual compensation” because he was “100% disabled.” He
indicated he had to overcome many obstacles in his attempts to obtain
benefits.
On 24 Aug 05, HQ ARPC/DPPR advised the applicant he was eligible to
apply for Reserve retired pay and provided another application package
for him to complete and return. The applicant completed the
application on 3 Sep 05.
By Reserve Order EL-0010, dated 3 Oct 05, the applicant was authorized
retired pay under the provisions of Title 10, USC, Section 12731, and
placed on the USAF Retired List, Retired Reserve Section ZB in the
grade of major.
On 5 Oct 05, HQ ARPC/DPP advised the applicant an application for
retired pay had been forwarded to him on 17 Oct 86, and again on
26 Mar 87. Both packages were returned because the forwarding address
had expired. A new pay application packet was forwarded to him on
24 Aug 05, and the completed forms were received on 30 Sep 05.
Further, the ARPC Retirement Branch published his retired pay order
with an effective date of 7 Mar 87, his 60th birthday. By Law (Title
31, USC, Section 3702), there is a six-year statute of limitations on
receipt of retired pay. Therefore, he was eligible to receive retired
pay retroactive to 30 Sep 99, six years prior to the date his pay
application was received at ARPC.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ ARPC/DPP advises that retired pay is not automatic; a member must
apply. HQ ARPC/DPPR sends members their retired pay application forms
approximately 4-6 months prior to their 60th birthday. After the
second application packet was returned, HQ ARPC/DPPR took no further
action and all controls were deleted. The applicant did not request
his retired pay until 2005. HQ ARPC/DPPR did receive a letter from
the applicant in Aug 04 requesting Dual Compensation. By law (Title
31, USC, Section 3702), there is a six-year statute of limitations on
receipt of retired pay; therefore, the applicant is only eligible to
receive retired pay retroactive back to 30 Sep 99 (six years prior to
the date his pay application was received at ARPC). The Defense
Finance and Accounting Service-Cleveland Center (DFAS-CL) will
establish the applicant’s retired pay account and determine the
retroactive pay he is entitled to receive. The applicant’s request
for retired pay retroactive to his 60th birthday (7 Mar 87) should be
denied due to the six-year statute of limitations on receipt of
retired pay.
A complete copy of the evaluation, with attachments, is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the Air Force evaluation was forwarded to the
applicant on 10 Nov 05 for review and comment within 30 days. As of
this date, this office has received no response.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
3. Sufficient relevant evidence has been presented to demonstrate
the existence of error or injustice to warrant partial relief. On
4 Aug 72, two days before his discharge from the NYANG and transfer to
the USAFR, HQ ARPC notified the applicant of his eligibility for
Reserve retired pay at age 60. HQ ARPC attempted to notify the
applicant both before and after his 60th birthday that he was eligible
to apply for retired pay; however, the applicant apparently had moved
from his indicated address and the forwarding address had expired. In
a 2 Aug 04 letter, the applicant indicated he was attempting to file
for “dual compensation” because he was “100% disabled.” On 24 Aug 05,
HQ ARPC notified the applicant he was eligible to apply for Reserve
retired pay. He quickly completed and returned the application
provided by HQ ARPC in Sep 05. As Title 31, USC, Section 3702, places
a six-year statute of limitations on receipt of retired pay, the
applicant was determined eligible for retired pay retroactive to
30 Sep 99, six years prior to the date his pay application was
received at HQ ARPC. The applicant was advised in Aug 72, before he
retired, that he was eligible for Reserve retired pay when he was 60.
We cannot hold the Air Force culpable for the applicant’s failure to
keep a current address on file or to apply for Reserve retired pay
when he became eligible in 1987. Therefore, his request for nearly 12
additional years of retroactive retired pay is unreasonable and should
be denied. However, he appears to have been attempting to apply for
pay in Aug 04, when he attempted to file for “dual compensation."
Granted, his request may not have been clearly stated, but we are
concerned that it took HQ ARPC a year to determine the applicant’s
eligibility for Reserve retired pay. Therefore, as a compromise, we
believe the record should be amended to show the applicant applied for
retired pay with his 2 Aug 04 letter, and competent authority approved
his request for Reserve retired pay retroactive six years from that
date to 31 Jul 98, rather than 30 Sep 99. We believe this remedy
would be in the best interests of both the Air Force and the
applicant.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to the APPLICANT, be corrected to show that, on 2 August
2004, he applied for Reserve retired pay under the provisions of Title
10, USC, Section 12731, and competent authority approved his request
with eligibility to receive Reserve retired pay effective 31 July
1998, rather than 30 September 1999.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 7 February 2006 under the provisions of AFI 36-
2603:
Mr. James W. Russell III, Panel Chair
Ms. Janet I. Hassan, Member
Mr. James A. Wolffe, Member
The following documentary evidence relating to AFBCMR Docket Number BC-
2005-02864 was considered:
Exhibit A. DD Form 149, dated 3 Sep 05, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ ARPC/DPP, dated 4 Nov 05, w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 10 Nov 05.
JAMES W. RUSSELL III
Panel Chair
AFBCMR BC-2005-02864
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:
The pertinent military records of the Department of the Air
Force relating to , be corrected to show that, on 2 August 2004, he
applied for Reserve retired pay under the provisions of Title 10, USC,
Section 12731, and competent authority approved his request with
eligibility to receive Reserve retired pay effective 31 July 1998,
rather than 30 September 1999.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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