IN THE CASE OF:	  

		BOARD DATE:	       27 August 2009

		DOCKET NUMBER:  AR20090011636 


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 that the Board overturn the 6-year Barring Statute to allow her deceased brother, a former service member (FSM), to receive retired pay effective 6 October 1998, the date he turned 60. 

2.  The applicant states that her brother, the FSM, never received his retirement letter.  She adds that due to his medical condition, he was unable to tell her about his retirement and that she was informed by his friends that his retired pay should have started on 6 October 1998.  

3.  The applicant provides copies of the FSM’s various medical documents; a copy of a “Letter of Guardianship of the Person and Property of Incapacitated Adult,” dated 10 March 1999; a copy of the FSM’s Army National Guard Current Annual Statement, dated 18 June 1996; and a copy of a Standard Form 1199A (Direct Deposit Sign-Up Form), in support of her request.  

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 6 October 1938 and he entered active duty on 1 November 1955.  He was separated on 31 October 1958 and transferred to the U.S. Army Reserve Control Group (USAR) for completion of his Reserve obligation.  



2.  On 8 January 1977, the FSM enlisted in the Georgia Army National Guard (GAARNG).  He subsequently executed several extensions and/or reenlistments, served in various positions, and attained the rank/grade of sergeant (SGT)/E-5. He was assigned to Headquarters and Headquarters Battery, 118th Field Artillery Brigade, Savannah, GA.

3.  On 31 July 1991, by endorsement, the FSM’s immediate commander stated that the FSM was considered non-deployable when his unit was mobilized in October 1990.  At the time, he received a physical and his file was forwarded to the State Surgeon General, GAARNG, who found him unfit for retention.  The FSM appealed this finding and his file was forwarded to The Adjutant General, State of GA, but he was again found unfit for retention by reason of insulin-dependent diabetes.  

4.  On 8 October 1991, the Office of the Adjutant General, GAARNG, published Orders 199-11, directing the FSM’s honorable discharge from the ARNG and as a Reserve of the Army effective 2 July 1991 under the provisions of paragraph
8-26y of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).

5.  On 10 November 1992, for an unknown reason, the U.S. Army Reserve Personnel Command (now known as the U.S. Army Human Resources Command (HRC)), St. Louis, MO, published Orders D-11-258854, directing the FSM’s honorable discharge from the USAR.

6.  On 28 December 2008, an official at the Annuity and Retirement Branch, HRC, St. Louis, reviewed the FSM’s file and determined that the GAARNG discharged the FSM and placed him in the USAR Control Group (Reinforcement) on 2 July 1991 with 17 years of qualifying service.  The reason for this discharge is unknown.  Additionally, on 10 November 1992, the USAR discharged the applicant under the authority of Army Regulation 135-178 (Enlisted Administrative Separations).  The FSM did not have 20 qualifying years of service and could not be issued a 20-year letter.  The GAARNG sent the FSM to their Surgeon General where he was found unfit for retention due to insulin- dependent diabetes and hypertension.  The GAARNG should have placed the FSM in the Retired Reserve for medical reasons and issued him a 15-year letter. 

7.  On 29 December 2008, the HRC-St. Louis issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).  This letter notified the FSM that he was in the Selected Reserve, he had completed 15 years of qualifying service beginning on or after 15 October 1991 and ending on or before 30 September 1999.  He had also completed 6 years of qualifying service while in the Selected Reserve, and he had requested a transfer to the Retired Reserve.

8.  On 31 December 2008, HRC-St. Louis issued Orders P12-819343 placing the FSM on the retired list in the rank/grade of SGT/E-5, effective 6 October 1998.

9.  The FSM died on 9 August 2009.

10.  An email, dated 13 August 2009, from the Defense Finance and Accounting Service (DFAS) indicated that the FSM's retired pay was established on 1 August 2009 and that the FSM would receive pay from 28 December 2002 (6 years from the date his retirement order was issued due to the Barring Act).

11.  A second email, dated 19 August 2009, from DFAS again indicated that the FSM's pay was established on 1 August 2009 for payment on 1 September 2009 retroactive to 28 December 2002 due to the Barring Statute. 

12.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

13.  Title 10, U.S. Code (USC), section 12738(a) provides that after a person is granted retired pay under this chapter, or is notified in accordance with section 12731(d) of this title that the person has completed the years of service required for eligibility for retired pay under this chapter, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed as required by section 12731(a)(2) of this title, unless it resulted directly from the fraud or misrepresentation of the person.

14.  Public Law 102-484, the FY93 Defense Authorization Act, was enacted on 23 October 1992.  Section 4403 of that law gives the Military Departments the authority to permit early retirement.  Service members who served at least 15 years, but fewer than 20, could qualify for early retirement under a program established by the Temporary Early Retirement Authority.  To retire under the provision of this law, an application and its approval were mandatory.

15.  Title 10, USC, section 12731(a) and (b) provided for temporary special retirement qualification authority and provided for retirement with at least 
15 years of service.  It also provided that for the purposes of section 12731 of this title, the Secretary concerned could during the period beginning on             23 October 1992, and ending on 31 December 2001, determine to treat a member of the Selected Reserve of a Reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member as of 1 October 1991 has completed at least 15 and less than 20 years of service computed under section 12732 of this title; or after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and upon the member submitting a request to the Secretary, transferring the member to the Retired Reserve. 

16.  Title 31 U. S. Code (USC), 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 contends the Barring Act should be overturned so that her deceased brother, a FSM, may receive retired pay effective 6 October 1998.

2.  The evidence of record shows the FSM was discharged from the GAARNG on 2 July 1991 by reason of medical unfitness.  At the time of discharge, he had completed nearly 17 years of qualifying service for non-regular retirement. Furthermore, he was also discharged from the USAR on 10 November 1992.  The FSM did not have 20 qualifying years of service and could not be issued a 20-year letter. 

3.  The evidence of record further shows the FSM's records were ultimately corrected and he was issued a 15-year letter in December 2008 as well as orders placing him on the retired list in the rank/grade of SGT/E-5, effective 6 October 1998, the date he turned 60.  He was issued that 15-year letter in error.  He was discharged from the Selected Reserve effective July 1991, over a year before the authority to issue 15-year letters was enacted.

4.  Nevertheless, now that the FSM has been issued a 15-year letter, his right to retired pay may not be denied.  Based on applicable law and regulation, he is entitled to restoration of all back pay and allowances and/or payment of his retired pay effective 6 October 1998 and his records should be corrected as such.

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:

	a.  showing the FSM timely applied for retired pay, that his application was timely received and processed; and that he was timely issued a retirement order prior to reaching his 60th birthday on 6 October 1998; and

	b.  restoration of the FSM's retired pay to 6 October 1998 as a result of this correction. 




      _______ _   _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)                                         AR20090011636



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ABCMR Record of Proceedings (cont)                                         AR20090011636



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