IN THE CASE OF:
BOARD DATE: 24 March 2011
DOCKET NUMBER: AR20100023126
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, on behalf of her spouse, a former service member (FSM), requests the FSM be advanced on the Retired List to the rank/grade of colonel (COL)/O-6.
2. The applicant states the FSM was promoted to COL effective 1 July 1993 on the Retired List but did not receive an adjustment to his retired pay based on the promotion.
3. The applicant provides:
* orders assigning the FSM to the Defense Intelligence Agency, Alexandria, VA and further reassigning to the American Embassy, Bangkok, Thailand
* orders reassigning the FSM to U.S. Army, JUSMAG Thailand, Bangkok, Thailand
* orders placing the FSM on the Retired List
* a letter, dated 23 March 1994, from the Office of the Deputy Chief of Staff for Personnel, Washington, DC
* orders, dated 1 April 1994, from the U.S. Total Army Personnel Command, Alexandria, advancing the FSM on the Retired List in the rank/grade of COL/O-6, effective 1 July 1993
* a memorandum, dated 1 September 2010, from a Retirement Services Officer
* documents giving a durable power of attorney to the applicant
* a copy of the FSM's military identification card
* a copy of the applicant's dependent identification card
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM was placed on the Retired List on 1 July 1982 in the rank/grade of lieutenant colonel (LTC)/O-5 at the age of 60.
3. A letter from the Office of the Deputy Chief of Staff for Personnel, dated
23 March 1994, stated the Secretary of the Army reviewed the FSM's case and directed he be informed that he had been advanced to the rank/grade of COL/O-6 on the U.S. Army Retired List effective the date of his retirement from the Defense Intelligence Agency.
4. U.S. Total Army Personnel Command, Alexandria, Orders S228-8, dated
1 April 1994, stated the Secretary of the Army reviewed the FSM's submission and approved his advancement on the U.S. Army Retired List by one grade to COL, effective 1 July 1993, and directed his retired pay be adjusted accordingly.
5. A memorandum from the Retirement Services Officer (RSO) at the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sam Houston, TX, dated 1 September 2010, stated the FSM was not advanced one grade on the Retired List as directed in the orders. The RSO stated the Defense Finance and Accounting Service, Cleveland, OH (DFAS-CL) has researched and will advance the grade of the FSM. However, due to the Barring Act DFAS-CL indicated they could only pay back six years for the difference in retired pay.
DISCUSSION AND CONCLUSIONS:
The FSM was placed on the Retired List in the rank/grade of LTC/O-5. Orders, dated 1 April 1994, advanced him to COL/O-6 effective 1 July 1993 and directed his retired pay be adjusted accordingly. DFAS-CL advised they could
not pay more than 6 years back pay due to the Barring Act. Therefore, it is appropriate to correct the FSM's records to show he was advanced on the Retired List in the rank/grade of COL/O-6 effective 1 July 1993 with entitlement to all back retired pay due as a result of this correction.
BOARD VOTE:
____X____ ____X____ ____X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 he was advanced on the Retired List as a COL/O-6 effective 1 July 1993 and that the appropriate office received the advancement orders in a timely manner.
2. The Defense Finance and Accounting Office should audit the FSM's pay records and provide him all back retired pay due 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) AR20100023126
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ABCMR Record of Proceedings (cont) AR20100023126
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