BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20110010233 


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 retroactively paid his non-regular retired pay at age 60, effective 26 June 1990.

2.  The applicant states, in effect, the Army recently placed him on the retired list with an effective date of 26 June 1990 (his 60th birthday).  The retirement order was published in November 2010.  However, due to the statute of limitations, Defense Finance and Accounting Service (DFAS) officials retroactively paid him retired pay beginning on 19 November 2004 (6 years back).  DFAS cannot issue further retroactive payment without prior approval from this Board.

3.  The applicant provides:

* Letters to and from DFAS
* Letters to and from his Members of Congress
* Chronological Record of Military Service
* DD Form 2656 (date for Payment of Retired Personnel)
* Application for Retired Pay Benefits

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 26 June 1930.  He initially enlisted in the Pennsylvania Army National Guard (PAARNG) on 10 May 1948.  


2.  He was ordered to active duty on 26 August 1950 and served in military occupational specialty 1824 (Mess Steward).  He was honorably released from active duty on 20 June 1951.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he completed 2 years and 3 months, and 21 days of active service during this period.  

3.  While on active duty, he reenlisted in the PAARNG on 14 October 1951.  He was discharged from the ARNG and as a Reserve of the Army on 13 October 1954.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed a total of 3 years of service during this period.  

4.  He was appointed as a Reserve commissioned officer of the Army and officer of the ARNG in the rank of second lieutenant on 10 April 1956.  He served in a variety of assignments and he was promoted to first lieutenant on 9 April 1959 and captain on 14 November 1962.  

5.  On 2 May 1968, the PAARNG published Special Orders Number 84 discharging him from the ARNG effective 9 May 1968.  He was transferred to the U.S. Army Reserve Control Group (Standby Reserve).

6.  His NGB Form 22 shows he completed a total of 12 years and 1 month of commissioned service during this period and a total of 20 years of total service for pay purposes. 

7.  On 17 February 1970, by letter, the Office of the Adjutant General, U.S. Army Administration Center, St. Louis, MO, notified him that he had completed 19 years, 1 month, and 11 days of creditable service for non-regular retirement as of 27 July 1969.  

8.  He remained in the USAR (Standby Reserve) from 10 May 1968 through 7 March 1975.  He then enlisted in the Georgia Army National Guard (GAARNG) for 1 year on 8 March 1975.  He was honorably discharged from the GAARNG on 7 March 1976.

9.  His ARNG Chronological Record of Military Service, dated 12 October 2010, shows he completed a total of 20 years, 1 month, and 11 days of qualifying service for non-regular retirement.

10.  He turned 60 on 26 June 1990 but he did not submit an application for retired pay at that time.

11.  On 22 November 2010, subsequent to various inquiries by Members of Congress, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P11-930224 placing him on the retired list in his retired rank of CPT effective 26 June 2010.

12.  On 5 January 2011, by letter, an official at DFAS notified the applicant's Member of Congress that the applicant's military retired pay account had been established and retroactive payment had been issued to him under the 6-year statute of limitations.  

13.  Title 10, U.S. Code, sections 12731-12737 authorize retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a reserve Soldier upon attaining age 60 must have completed a minimum of 20 qualifying years.  After 1 July 1949, a qualifying year is defined as the reserve Soldier must have earned at least 50 retirement points.  

14.  Title 31 U.S. Code, section 3702, 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 completed a minimum of 20 qualifying years of service toward non-regular retirement but for unknown reasons, his chronological record of retirement points was not updated to reflect his completed service.  Accordingly, when he turned 60 on 26 June 1990, he was unable to request retired pay.

2.  When his retirement points were recently corrected in November 2010, orders were issued placing him on the retired list (effective 26 June 2010, when it should have read 26 June 1990), his military retired pay account was established, and retroactive payment was issued to him under the 6-year statute of limitations, beginning on 19 November 2004.  Through no fault of his own, he was denied retired pay from 26 June 1990 through 18 November 2004. 

3.  Had his retirement points been correct, he would have been able to apply for retired pay to be effective 26 June 1990 when he turned 60.  Therefore, he is entitled to correction of his records to show he was issued retirement orders placing him on the retired list effective 26 June 1990 and to show his request for retired pay was timely received and processed by the appropriate office. 


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 orders were issued in a timely manner to place him on the retired list on 26 June 1990 and in sufficient time for him to apply for retired pay to be effective 26 June 1990
* having DFAS audit his pay records and pay him retroactive retired pay 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)                                         AR20110010233





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ABCMR Record of Proceedings (cont)                                         AR20110010233



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