IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090001730 


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, that he be provided back retired pay and allowances from 2 October 1999, the date he was placed on the Retired List.

2.  The applicant states, in effect, that for the past 10 years he has called and written to the Department of the Army (DA) requesting retirement after 22 years of service.  He claims the response was always that his records could not be found and he kept receiving incomplete retirement points summaries they had available.  He finally requested the assistance of a Member of Congress and his information was forwarded to DA through her office.  Three months later he was notified that 2 additional years of qualifying service were found and he was provided this information and his retirement request to DA at St. Louis.  He was then notified that he could only be provided with 6 years of back pay as a result of the statute of limitations.  Finally, in October 2008, he received back pay for 6 years and began receiving his retired pay.  He claims since the error that caused him not to receive retirement within the statute of limitations was through no fault of his own, since he has been attempting to receive his retirement throughout all these years, he should have received back retired pay from October of 1999, the date he was eligible to be placed on the Retired List.  He is now requesting he be paid the 3 years of back retired pay from 1999 through 2002, because the Government failed to maintain his records properly and caused the delay in his receiving retirement pay.

3.  The applicant provides a self-authored statement, retirement orders, and a Defense Finance and Accounting Service (DFAS) letter with attachments, dated 14 April 2008, in support of his application.
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's record shows that he served on active duty in the United States Navy for 4 years and 1 month between October 1956 and November 1960 and in the United States Army for 2 years, 11 months and 25 days from 8 December 1960 through 2 December 1963.

3.  The applicant's record also shows that upon his discharge from the Regular Army in 1963, he entered the U.S. Army Reserve (USAR), where he served through 4 November 1967.

4.  On 15 September 1973, after a break in service between 5 November 1967 and 14 September 1973, the applicant entered the Army National Guard (ARNG), where he served through 14 September 1979.

5.  On 15 September 1979, the applicant transferred from the ARNG to the USAR, where he continued to serve through 24 July 1985 when he was honorably discharged.

6.  A Reserve Personnel Accounting Statement on file in the applicant's record shows that during his military service between 1956 and 1985, he completed a total of 21 years, 1 month, and 2 days of qualifying service for Reserve retirement.

7.  The applicant's record confirms that Reserve retirement officials from the U.S. Army Human Resources Command (HRC), St. Louis, Missouri, did not confirm the applicant's qualifying service and eligibility for retirement until sometime in February 2008, at which time he was mailed the forms to submit for retirement.

8.  On 14 April 2008, HRC-St. Louis Orders P04-805121 directed the applicant's retirement and placement on the Retired List in the rank of staff sergeant effective 2 October 1999.

9.  In a 16 September 2008 letter to a Member of Congress, DFAS officials indicated that the applicant's retirement packet was received on 18 April 2008 and he was paid $32,886.57 (gross payment of $46,750.10 less Federal taxes of $13,757.23 and Survivor Benefit Plan (SBP) premiums of $106.30) on 10 September 2008, and that on 1 October 2008, the applicant would begin to receive monthly retired pay.  DFAS officials also informed the Member of Congress that in accordance with Title 10, U.S. Code, section 3702, commonly known as the barring statute, they were only allowed to pay retroactive military retired pay back to 6 years prior to the claim, or 8 March 2002, and if the applicant believed he suffered an injustice or that his DFAS record was in error regarding his military pay, he could apply to this Board for a final determination.

10.  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. 
Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should not be subjected to the barring statute given he has been attempting to correct his records for the past 10 years was carefully considered and found to have merit.

2.  The evidence of record confirms that HRC-St. Louis retirement officials were not able to confirm the applicant's qualifying service and retirement eligibility until February 2008, almost 9 years after the date the applicant was eligible to receive retired pay.  As a result, given it appears the delay in processing the applicant's retirement was through no fault of his own, it would be appropriate and serve the interest of justice and equity to correct the applicant's record to show was found to be eligible for a non-regular retirement prior to 2 October 1999 and that he applied for and was granted retirement and was placed on the Retired List on 2 October 1999.  Further, based on this records correction, it would also be appropriate to provide him all back retired pay and allowances due from 2 October 1999 through 2 August 2002, 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 that the evidence presented was 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 that he was found to be eligible for a non-regular retirement prior to        2 October 1999, that he applied for and was granted retirement and was placed on the Retired List on 2 October 1999, and by providing him all back retired pay due from 2 October 1999 through 2 August 2002.



      ___________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)                                         AR20090001730



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ABCMR Record of Proceedings (cont)                                         AR20090001730


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