BOARD DATE: 30 March 2010
DOCKET NUMBER: AR20090015848
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 his military records be corrected to show he received his 15-year letter prior to reaching age 60 and that he applied for retired pay prior to reaching age 60.
2. The applicant states that his status was recently changed from being discharged to qualifying for a medical retirement (more than 15 years but less than 20 years). He contends that he received retirement orders and has started drawing retired pay; however, he only received back pay to 26 November 2002. He believes the back pay should go back to his 60th birthday (28 January 2000) because it was not his fault he was medically discharged and the State of Texas did not correct his status and issue a 15-year letter until after his 68th birthday. He also contends that an official at the Defense Finance and Accounting Service (DFAS) informed him that his back pay was to 26 November 2002.
3. The applicant provides a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year letter); retirement orders, dated 12 December 2008; and two Retiree Account Statements in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 28 January 1940. He enlisted in the Texas Army National Guard on 1 August 1977 and trained as a food service specialist. On
6 April 1994, he was honorably discharged for being medically unfit for retention standards.
2. The applicant's Army National Guard Retirement Points History Statement, prepared on 29 July 2008, shows he had 15 years, 2 months, and 11 days of qualifying service for retirement.
3. The applicant's Notification of Eligibility for Retired Pay at Age 60 (15-year letter) is dated 4 November 2008.
4. Title 10, U.S. Code, 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/she has completed at least 15 and less than 20 years of service.
5. Title 31, U.S. Code, section 3702 establishes a 6-year statute of limitations on filing a claim for payment from the U.S. government.
DISCUSSION AND CONCLUSIONS:
1. The applicant was discharged from the Texas Army National Guard on 6 April 1994 for being medically unfit for retention standards. At the time of his discharge he had completed 15 years, 2 months, and 11 days of creditable service for retired pay.
2. Through no fault of his own, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (15-year letter) on 4 November 2008, at age 68.
3. The applicant's contention that he is entitled to back pay commencing on his 60th birthday has merit. Since it appears that DFAS cannot correct the applicant's records due to the barring act, the applicant's military records should be corrected to show he received his 15-year letter prior to reaching age 60 and that he applied for retired pay prior to reaching age 60.
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 he received his 15-year letter prior to reaching age 60,
b. showing he applied for retired pay prior to reaching age 60,
c. showing DFAS timely received and processed his retired pay application prior to reaching age 60, and
d. paying him the difference in retired pay and allowances from his 60th birthday on 28 January 2000 through 25 November 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) AR20090015848
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ABCMR Record of Proceedings (cont) AR20090015848
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