PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002074057


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

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Marla J. N. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests, in effect, that his records be corrected to show he was placed on the Retired List and authorized to receive retired pay effective 26 April 1987, the date he turned 60 years of age, and that he be provided all back retired pay due as a result.

3. The applicant states, in effect, that he has attempted to get his retired pay since 1989, but it was not approved until 18 April 2001. He further claims that once his retirement was approved, he was informed that based on the restrictions of Title 31 of the United States Code, he would could only receive six years of back pay, and he was placed on the Retired List effective 18 April 1995 vice 26 April 1987, when he turned 60 and should have first began receiving retired pay.

4. The applicant’s military records show that he served in various Reserve Component elements through 30 January 1976, and was credited with completing 20 years, 4 months, and 21 days of qualifying years of service for retired pay and a total of 29 years, 4 months, and 18 days of military service.

5. On 16 November 1989, the applicant sent a letter to Army Reserve Personnel and Administration Center, now the Army Reserve Personnel Command (ARPERSCOM), St Louis, Missouri, requesting retired pay. He indicated that he was 62 years old and asked that his records be reviewed to determine why he was not receiving a pension.

6. It is unclear in the record what transpired subsequent to the applicant’s
1989 request for retirement. However, as late as 2001, ARPERSCOM officials were still advising the applicant that he was ineligible for retired pay because he had only completed 18 years, 4 months, and 21 days of qualifying service, as evidenced in the enclosed 9 January 2001 ARPERSCOM letter to the applicant.

7. On 18 April 2001, the Chief, Transition and Separations Branch, ARPERSCOM, notified the applicant by letter that his application for retired pay under the provisions of Title 10 of the United States Code, section 12731 had been approved. Enclosed with the letter was a Certificate of Retirement, and Orders P-04-301908, dated 18 April 2002, issued by ARPERSCOM. These orders authorized the applicant’s retirement and placement on the Retired List on 18 April 1995, in the rank and pay grade of chief warrant officer three/W-3 (CW3/W-3).

8. A member of the Board staff contacted a representative of the ARPERSCOM Transition and Separations Branch and confirmed that the applicant had been granted retired pay, and was credited with completion of 20 years, 4 months, and 21 days of qualifying service for retired pay as of 30 January 1976.

9. Title 10 of the United States Code, section 12731 provides the legal authority and age and service requirements for non-regular retirement and receipt of retired pay at age 60. It states, in pertinent part, that a member is entitled, upon application, to retired pay if he/she is at least 60 years of age; has performed at least 20 years of qualifying service; and performed the last eight years of qualifying service while a member of a Reserve Component.

10. Title 31 of the United States Code, section 370 provides the legal authority to settle claims against the government. It states, in pertinent part, that The Secretary of Defense shall settle claims involving uniformed service members' pay, allowances, retired pay, and survivor benefits. Further, that a claim against the Government must be received by the by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues.

11. Title 10, U.S. Code, section 1552, the law which provides for the Board, states that “The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.”

CONCLUSIONS:

1. The Board notes the applicant’s contention that his retired pay effective date should be changed to 26 April 1987, the date he turned age 60, and he should be provided any back pay due as a result, and it finds this claim has merit. By law, a pay and allowance claim against the government must be received by the official or agency responsible for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues.

2. The evidence of record confirms that the applicant was eligible to receive retired pay upon reaching age 60 on 26 April 1987. It is also clear that he requested retired pay in a 16 November 1989 letter to ARPERSCOM. However, it took until 18 April 2001, to establish his entitlement to retired pay and to approve his placement on the Retired List. Further, the effective date of his retirement was established as 6 years prior to the 18 April 2001 approval date based on the statute of limitations on the payment of claims.

---

3. The evidence of record is unclear to why it took until 18 April 2001 to establish the applicant’s eligibility for retired pay, and the Board makes no judgment in this regard. However, it is clear that the applicant first contacted ARPERSCOM personnel officials requesting retired pay on 18 November 1989, which was well within 6 year statute of limitations based on the date from which his claim for retired pay accrued, 26 April 1987, the date he turned age 60.

4. Since ARPERSCOM officials ultimately confirmed that the applicant completed the necessary qualifying years to receive retired pay at age 60 as of 31 January 1976, and his entitlement to receive retired pay at age 60, the Board finds it appropriate to grant the requested relief.

5. In view of the facts of this case, the Board concludes that 18 November 1989, the date of his letter to ARPERSCOM, should be established as the date the applicant’s claim for retired pay was received by the responsible government agency for statute of limitation purposes. Further, the Board finds that the applicant’s record should be corrected to show that he was placed on the Retired List and authorized to receive retired pay on 26 April 1987, vice 18 April 1995, and that he should be provided any back retired pay due as a result.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the claim for retired pay of the individual concerned was received by the responsible government agency on 18 November 1989; that he was placed on the Retired List and authorized to receive retired pay on 26 April 1987, vice 18 April 1995; and by providing him any back retired pay due as a result.

BOARD VOTE:

__RVO__ __AAO _ __MJNT__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O’Connor, Jr. _
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002074057
SUFFIX
RECON
DATE BOARDED	2003/01/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1995/04/18
DISCHARGE AUTHORITY	10 USC 12731
DISCHARGE REASON	Non-Regular retirement, age 60
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 283	128.0000
2.
3.
4.
5.
6.