IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110025088 


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:

* payment of back retired pay of about $474,093.88 plus interest from 1980 to the present
* removal of the DD Form 1300 (Report of Casualty) from his records
* removal of any documentation related to his death from his pay records
* determination of why the Defense Finance and Accounting Service (DFAS) stopped his retired pay without notice
* determination of why DFAS officials stopped working his claim and using the excuse that his issue was being handled by the congressional department of DFAS
* written explanation pertaining to a payment of $110,747.88 made to him on 8 July 2011
* correction of his tax forms (Form 1099-R) for tax years 2004 through 2010 to reflect the correct monthly retired pay

2.  The applicant states:

* He retired on 28 February 1979; he completed a DA Form 4240 (Data for Payment of Retired Personnel) on 14 December 1978
* He received about 12 retirement checks at the time, he saved them for a while and when he got ready to cash them, he saw they had a notice that they must be cashed within 6 months or they were no good
* He believes he cashed six of those checks and did not cash the other six because of the stale date
* DFAS stopped payment abruptly without explanation; they stopped his retired pay in 1980 without explanation and refused to explain why his pay was stopped
* DFAS wrongfully reported him dead and thereby prevented him from receiving retired pay for 30 years
* DFAS failed to communicate with his attorney concerning this claim despite several requests
* DFAS failed to explain why his retired pay was stopped despite the absence of a death certificate
* DFAS failed to provide him with proof of the reason his retired pay was stopped
* DFAS failed to provide him with copies of all documents related to his death
* DFAS paid him only $110,747.88 without a written explanation; this amount appears to be short $25,790.25 from August 2010 to July 2011
* He believes he is entitled to a gross amount of $474,093.88 plus interest from 1980 to the present

3.  The applicant provides:

* Self-authored Military Back Pay Recapitulation with no interest statement
* Letters, dated 5 May 2011,18 June 2010, and 9 September 2010, to the National Personnel Records Center
* Letters, dated 25 January 2011, from his attorney to the Federal Bureau of Investigation (FBI)
* Multiple fingerprint cards
* DD Forms 4 (Enlistment Record – Armed Forces of the United States), dated 1 March 1962, 1 October 1963, 1 March 1965, 29 April 1971, and 26 April 1974
* DD Form 214 (Report of Separation and Record of Service) for the period ending 28 February 1979
* Tow Certifications of Military Service
* Personal Money Orders
* Letter, dated 21 April 2011, from the FBI's Criminal Justice Information Services Division
* IRS Forms 1099-R for the years 2004 through 2010
* DD Form 1300 (Report of Casualty), dated 30 March 1994
* DA Form 2339 (Application for Voluntary Retirement), dated 3 November 1978
* DA Forms 2A and 2-1 (Personnel Qualification Record – Parts I and II)
* DA Form 41 (Record of Emergency Data)
* Multiple Enlisted Evaluation Reports throughout his military service
* Multiple assignment or award orders, letters of commendation and appreciation, certificates of completion and/or training, training records completion notices, disposition forms
* Multiple DA Forms 87 (Certificate of Training)
* DA Form 428 (Application for Identification Card)
* DD Form 398 (Statement of Personal History)
* Multiple General/Special Orders
* DA Form 873 (Certificate of Clearance and/or Security Determination)
* Statements for enlistment or reenlistment
* Multiple letters and/or emails from his attorney to DFAS
* Self-authored affidavit, dated 25 June 2012

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be paid back retired pay of about $474,093.88 plus interest from 1980 to the present.

2.  Counsel states:

* The applicant applied for retired pay on a DA Form 4240 on 14 December 1978
* The DFAS website states if the claim is for a period older than 6 years and a member fails to provide evidence that he previously submitted a claim, it is barred from consideration under the Barring Act (Title 37, U.S. Code (USC), section 3702)
* Given DFAS’s acceptance of the applicant's 1978 application for retired pay, the Barring Act should not apply to his 2010 claim 
* DFAS stopped sending his checks for no reason, without his knowledge, and then he was reported dead
* If DFAS generated the Report of Casualty and used it as an excuse to stop the applicant's retired pay, then again the 6-year rule does not apply
* Despite multiple communications with DFAS, no explanation has been received regarding why the retired pay was stopped and why the applicant has only received $110,747.88
* If this amount was paid for the period August 2004 through August 2010, then what happened to the additional $25,790.25 from August 2010 to July 2011
* He believes he is entitled to a gross amount of $474,093.88 plus interest from 1980 to the present



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 4 June 1939.  

2.  He initially enlisted in the Regular Army on 21 July 1958.  He served through multiple extensions or reenlistments, in a variety of stateside or overseas assignments, including Korea, Thailand, and Vietnam, and he attained the rank/grade of sergeant first class (SFC)/E-7.

3.  He submitted a DA Form 2339 (Application for Voluntary Retirement) on 2 November 1978 and his application was approved for retirement on                28 February 1979, under Title 10, USC, section 3914.

4.  He was honorably retired on 28 February 1979 at Fort Belvoir, VA, and placed on the retired list in his retired rank/grade of SFC/E-7 on 1 March 1979.  He was credited with 20 years, 7 months, and 4 days of active service.

5.  On 30 March 1994, a DD Form 1300 (Report of Casualty) was initiated on behalf of the Secretary of the Army.  The form shows the applicant died on 1 March 1990.  No other information/data is provided on this form.

6.  In 2010, the applicant made contact with DFAS regarding his retired pay.  He provided a letter from the FBI's Biometric Service Section, Criminal Justice Information Services Division, confirming an examination of the fingerprints taken by the applicant matched those taken by him in 1958 and 1962.  It appears after his identity was confirmed, DFAS reestablished his retired pay account and paid him 6-years worth of back retired pay, the maximum authorized by law. 

7.  The facts and circumstances of the applicant's whereabouts from 1980 to 2010 were not available for review with this case.  However, he later submitted an affidavit on 25 June 2012 wherein he essentially states that he has worked in various jobs since retirement, including insurance, transportation, and other jobs. He always thought when he turned 65 years of age or older, he would be able to reclaim his money.  No one ever mentioned the 6-year barring rule to him.  

8.  10 February 2012, an advisory opinion was received from DFAS in the processing of this case.  DFAS was asked to answer three questions:

	a.  Why was the applicant's retired pay not initiated for the applicant who officially retired from the Army on 28 February 1979? [Applicant's] retired pay was originally established on 1 March 1979.  Sometime thereafter, his pay was suspended by the Army after several checks were returned undeliverable.  In 1994, a report of casualty was issued by the Secretary of the Army reflecting the applicant's date of casualty as 1 March 1990.  The microfiche indicates his account was subsequently terminated by the Army effective 1 March 1994.

	b.  Once started, and the applicant received retired pay from August 2004 to August 2010, why was his retired pay abruptly terminated? DFAS received his claim on 26 August 2010. 

		(1)  Title 37, USC, section 3702 states that any claim against the Government must be made within 6 years from the date the claim first accrues.  A claim first accrues on the date when all events have occurred which fix the liability, if any, of the United States, entitling the claimant to file a claim.  Compensation due and payable periodically, such as retired pay, is considered a continuing claim, which involves multiple causes of action arising at the time the Government fails to make the payment alleged to be due.  Cannon v. United States, 137Ct. Cl. 104 (Ct. Cl. 1956).  In the applicant's case, every month he failed to receive his retired pay gave rise to a claim subject to Title 37, USC, section 3702(b).  He had 6 years from the date of each missed payment to make a claim for that payment.  The first payment since his account was terminated in 1990 was received by DFAS on 26 August 2010.  Based on this claim, [Applicant] was entitled to payment back to 6 years from the date the claim was first received.

		(2)  On 28 July 2011, DFAS made a deposit of $110,747.88 (gross amount of $119,189.50, less $8,441.62 for Federal taxes) into the applicant's bank account.  This amount represents 6 years of back pay from August 2004 to August 2010, as well as payment for the entitlement months of September 2010 through May 2011, which became due after receipt of the member's claim, during the time DFAS was verifying the member's living status and identity, and rebuilding his account.  Beginning with entitlement month June 2011, he began receiving his retired pay on a monthly basis.

	c.  If he is eligible for retired pay, what is the reason why he has not received his retired pay from August 2010 to the present? Once DFAS was able to verify his identity, living status, and rebuild his account, his monthly retired pay was resumed with the entitlement month of June 2011.  He is currently in a current pay status and is receiving his entitlement. 

9.  Counsel submitted a rebuttal on 28 December 2011, wherein he stated:

	a.  DFAS’s response to the first question is incomplete as it does not explain why the retired pay was stopped.  He only cashed 6 out 12 checks.  DFAS does not state what address the checks were being mailed to, the entry on the postal letters regarding non-delivery, or any follow-up letters to the applicant.  Additionally, DFAS does not explain how or why the applicant was reported dead.  If DFAS would not accept the baptismal record and driver license he presented back in the late 1980s to prove he was not dead, it would not have made a difference if he presented the same records now.  DFAS required the applicant to go through an FBI verification process to prove his identity.  

	b.  DFAS declared him dead without a death certificate.  Many Federal regulations were violated in stopping his retired pay and DFAS continues to deny him a full explanation of what occurred in his case.  Not only was his retired pay unjustly stopped, the wrongful declaration of his death prevented him from restarting his retired pay.  DFAS continues to cite a "microfiche" without allowing the applicant an opportunity to independently examine it. 

	c.  The applicant's first communication regarding his retired pay was in 1978 not in 2010 as DFAS alleges.  He submitted an application for retired pay then. The Army violated his claim by declaring him dead and stopping his retired pay without notice of stoppage, right to appeal, and without citation of the law that applied to stopping his pay. 

	d.  The retired pay was not continuously paid due to the wrongful acts by the Army and DFAS in declaring him dead without a death certificate.  DFAS tries to cite a law to the applicant in 2012 to justify their denial of his retired pay from the 1980s to the present.  Why didn't DFAS cite this law and his rights under the law 32 years ago? Additionally, how can DFAS claim that the Government failed to make payment when in fact the Government blocked the payment and prevented him from receiving his retired pay.  Had the applicant been properly informed and advised of his rights, in the 1980s, he would have reacted differently. 

	e. DFAS had not fully explained the breakdown of the amount deposited in July 2008 despite multiple requests with DFAS regarding his retired pay, and despite numerous communications by his attorney.  The calculation still does not add up.  He is still due an additional $25,790.25 for the period August 2010 through July 2011.  Additionally, the amount of retired pay he began receiving in monthly retired pay is incorrect.  He is being paid $1,565.00 instead of $2,165.85, thus leaving him short of $600.95.

10.  According to the official DFAS website, DFAS is an agency of the Department of Defense (DOD), responsible for administering finance and accounting services for the military and other members of Defense.  The agency provides services primarily for (military) service men and women, or “warfighters” - including processing military, civilian, retiree, travel and contract/vendor pay, and managing military health care and benefits.  DFAS also provides accounting for the Department itself (e.g., of appropriations).  DFAS was created by the Secretary of Defense in 1991 in an effort to streamline, cut costs and improve quality in DOD finance and accounting operations through consolidation and standardization of procedures.  In May 1994, after several false starts, DOD announced that DFAS would begin consolidating its finance and accounting infrastructure in fiscal year 1995, and was successful in consolidating more than 300 installation-level finance and accounting offices into 26, and reducing a workforce a lower number of personnel 

11.  Title 37, USC, section 3702, also known as the Barring Act, states a claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative.  The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues except as provided in this chapter or another law; or a claim of a State, the District of Columbia, or a territory or possession of the United States.  When the claim of a member of the armed forces accrues during war or within 5 years before war begins, the claim must be received within 5 years after peace is established or within the period provided in paragraph (1) of this subsection, whichever is later.  A claim that is not received in the time required under this subsection shall be returned with a copy of this subsection, and no further communication is required.

12.  The "Doctrine of Laches" applies if the following three elements are met:

* Unreasonable lapse of time
* Neglect to assert a right or claim
* To the detriment of another

In other words, if an adverse party unreasonably delays informing an individual or entity of a right or claim and this results in permanent damage to the individual or the entity's ability to defend him/her/itself then such a claim may be barred from court.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 21 July 1958.  He submitted an application for retirement in November 1978 and indicated he desired to retire on 28 February 1979.  He retired on 28 February 1979 and was placed on the retired list on 1 March 1979. 

2.  When he retired, he accepted six months of retired pay from the Army and then for unknown reasons stopped cashing his checks.  After six more retirement checks were returned as undeliverable, the Army stopped sending checks to him but kept his retirement account active.  In 1994, again for unknown reasons, Army finance issued a casualty report declaring him dead.  As a result, the newly-established DFAS closed his account.  In their opinion, DFAS stated:

	a.  According to DFAS historical records, it appears the applicant stopped cashing his monthly retired checks at the time or the checks were returned to the Army finance office (prior to the creation of DFAS) as undeliverable.  The applicant himself states he did not cash his checks immediately and it appears he was not able to cash about a half dozen of them.  As a result, the servicing Army finance office suspended but did not terminate his retired account.  

	b.  It is unclear if the applicant raised the issue at the time or inquired about the whereabouts of his retired pay, as he provides no extenuating circumstances or any reasons that prevented him from seeking his retired pay.  

	c.  It also appears that on 30 March 1994 Army officials issued a Casualty Report reporting the applicant's death.  The report was transmitted to the recently-created pay office, DFAS, and DFAS terminated the retired account.  The facts and circumstances surrounding this erroneous death report are not available for review with this case.  Nevertheless, it is clear that this report was issued in error and as such should be removed from his personnel and pay record.

	d.  Although the applicant may have not been aware of this casualty report, no attempts were made regarding his retired pay.  There is no correspondence, documentation, letters, memoranda, record of phone calls, or any other documents of the applicant attempting to reclaim his retired pay.  

	f.  It also appears in August 2010, the applicant communicated with DFAS in an effort to reclaim his retired pay.  After DFAS established his identity, a lump sum payment was made to cover the past 6 years of retired pay as well as reestablishing his retired pay account. 

3.  The law is clear with respect to military pay claims.  Claims are settled on the basis of the written record, and the claimant has the burden of establishing the burden of proving his or her right to payment.  Retired pay is considered a continuing claim, which involves multiple causes of action arising at the time the Government fails to make the payment alleged to be due.  In other words, every month the applicant failed to receive his retired pay gave rise to a claim subject to the Barring Act.  He had 6 years from the date of each missed payment to make a claim for that payment.  The first payment since his account was terminated in 1990 was received by DFAS on 26 August 2010.  Based on this claim, DFAS paid him back 6 years worth of retired pay from the date the claim was first received.

4.  However, had the Army not mistakenly issued a casualty report, the retirement account would have remained suspended but certainly not terminated. Despite the unreasonable lapse of time in claiming his retired pay and his neglect to assert his right to his claim the applicant remains entitled to the retired pay and should be paid his retired pay in its entirety.  Additionally, he is also entitled to removal of the casualty report from his records. 

5.  Many of the applicant’s contentions do not concern a military records correction (e.g., determination of why DFAS officials stopped working his claim or correction of his tax forms) and thus cannot be addressed by this Board.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* removing the DD Form 1300 (Report of casualty) from his personnel and pay records
* auditing his pay record from the date of retirement on 1 March 1979 to the present
* paying him full retired pay less any amounts already received from the date of retirement to the present 
* issuing and/or correction of his tax forms (Form 1099-R) as a result of such payment

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* Payment of any interest claimed by the applicant
* determination of why DFAS stopped his retired pay without notice
* determination of why DFAS officials stopped working his claim and using the excuse that his issue was being handled by the congressional department of DFAS
* written explanation pertaining to a payment of $110,747.88 made to him on 8 July 2011



      _______ _   _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)                                         AR20110025088



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ABCMR Record of Proceedings (cont)                                         AR20110025088



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