IN THE CASE OF:	  

		BOARD DATE:	    25 January 2011

		DOCKET NUMBER:  AR20100016249 


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 relief from the 6-year barring statute in order to receive payment for military service performed during three separate periods between 
1 March 1989 and 28 February 1998. 

2.  The applicant states the Board should overturn the 6-year barring statute in order for her to receive pay for the following three separate periods of military service performed for which she has not been compensated:

* 4-18 March 1989 (Annual Training) 
* 28 November-13 December 1997 Combined Arms and Services Staff School (CAS3)
* 14-28 February 1998 (CAS3 Phase II)

3.  The applicant further states the failure of her command to pay her for the above periods of service was through no fault of her own.  She claims she made claim for payment upon completion of her service at the end of each period in question.  

4.  The applicant provides the 11 enclosures identified on the list of attachments included in support of her request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows she was placed on the Retired List in the grade of lieutenant colonel/0-5 (LTC/0-5) on 1 December 2007.  
2.  Headquarters, Guam ARNG issued Orders 062-25 on 27 February 1989, which ordered the applicant to annual training for 15 days from 4 through 
18 March 1989. 

3.  Headquarters, Guam Territorial Area Command, Guam ARNG issued 
Orders 117-005 on 13 November 1997, which ordered the applicant to annual training for the period 28 November through 13 December 1997 for the purpose of attending CAS3.  

4.  Headquarters, Guam Territorial Area Command, Guam ARNG issued 
Orders 041-002 on 10 February 1998, which ordered the applicant to active duty for training for the period 14 February through 28 February 1998 for the purpose of attending the CAS3.  

5.  On 27 September 2008, the Defense Finance and Accounting Service (DFAS) returned the applicant’s claim for pay for the periods in question citing the 
6 year barring statute.  DFAS included an application to this Board with instructions on how to submit it with their memorandum, and informed the applicant the Board had the ability to overturn the six year Barring Act.

6.  The Adjutant General (TAG) of the Guam National Guard provided a memorandum in support of the applicant’s request, dated 10 May 2010.  The TAG confirms the applicant attended three periods of training for which she was not paid.  He further confirms the applicant submitted a claim for this pay with the DFAS who denied it on the basis of the 6-year barring statute.  The TAG finally states it is his view that the applicant presented her claim for this pay after she returned from performing these duties and the command did not pay her; therefore, he believes the 6-year barring statue should not apply in this case.  

7.  The Joint Forces Headquarters, Guam National Guard Staff Judge Advocate (SJA) provided a memorandum for the Board supporting the applicant’s request, dated 24 March 2010.  He states he has assisted the applicant with her claim for payment for duties performed during the three periods in question during which she performed the duties.  He further states for some unknown reason the applicant’s command did not pay her upon completion of these duties and the applicant made numerous inquires regarding the pay within 6 years of performing the duties.  He confirms that upon approaching retirement, the applicant submitted a claim to DFAS but was informed the 6 year Barring Statute prohibited payment and that her only remaining remedy was application to this Board.  The SJA states his review of the matter indicates the 6-year barring act does not apply as the applicant made requests for payment immediately upon completion of her duties under her orders and subsequently thereafter on numerous occasions.  He concludes that the command was apparently negligent in not paying her.  

8.  Title 31, United States Code, section 3702 is the 6-year barring statute for payment of claims by the government.  In essence, if an individual brings a claim against the government for monetary relief.  The barring statute says that the government is only obligated to pay the individual 6 years from the date of the approval of the claim.  Attacks to the barring statute have resulted in litigation in the United States Court of Federal Claims.  In the case of Pride v. United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when BCMR decision creates an entitlement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she was not paid for duties performed during three separate periods of annual active duty for training has been carefully considered and found to have merit.  

2.  The evidence shows the applicant performed the duties in question and she has repeatedly sought payment for these duties since the time they were performed, as confirmed in the supporting statements provided by the Guam National Guard SJA and TAG.  

3.  As a result of this oversight by the Department in failing to properly pay the applicant for duty performed, the applicant has been unjustly denied benefits that she otherwise would have been entitled to receive.  Accordingly, it would be in the interest of justice to authorize, as an exception to policy, that the applicant’s application for pay and allowances for the three periods of active duty training performed be antedated to the day before her entitlement was terminated by the barring act, in order to effect proper payment of entitlements.     

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 the applicant submitted her claim for pay and allowances for the three periods of service in question prior to the termination of her entitlement under the Barring Act of 1940, and that the Department render pay for the periods of service in question.   




      __________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)                                         AR20100016249



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ABCMR Record of Proceedings (cont)                                         AR20100016249



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