IN THE CASE OF:
BOARD DATE: 31 July 2012
DOCKET NUMBER: AR20120000377
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 that he be paid his back retired pay for the period 1 February 2000 to 24 June 2005.
2. The applicant states, in effect, that in June 2011 he received a notification from the Florida Army National Guard (FLARNG) informing him that a review of his military retirement account reflected that he had not been credited with all of his service and that an incorrect computation had been submitted to the Defense Finance and Accounting Service (DFAS) at the time of his retirement. Accordingly, a change had been submitted to make the necessary correction. He goes on to state that in September 2011 he received notification from DFAS that his retirement account had been corrected and that he would receive back pay for only the last 6 years because they were prohibited from paying more than 6 years under the Barring Statute; however, they collected all back premiums for the Survivor Benefits Plan (SBP) all the way back to the date of his retirement. He continues by stating that he believes it unjust that DFAS will not pay what is owed him but they will collect what is owed them.
3. The applicant provides a one-page letter explaining his application and listing his enclosures.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the FLARNG on 14 May 1974 and served until he was honorably discharged in the pay trade of E-7 on 29 January 1985 to accept an appointment as a warrant officer.
2. He was appointed as a chief warrant officer two in the FLARNG on 30 January 1985. He continued to serve and was promoted to the rank of chief warrant officer four (CW4) on 27 March 1997.
3. The applicant was serving on active duty in the Active Guard Reserve (AGR) Program with the FLARNG on 31 January 2000 when he was honorably released from active duty (REFRAD) and was transferred to the Retired Reserve effective 1 February 2000. He had served 20 years and 13 days of active service and had served 25 years, 8 months and 17 days of service for basic pay purposes.
4. On 16 June 2011, a memorandum was dispatched to the applicant from the FLARNG indicating that a review of his military retirement account indicated that his inactive duty time was not included and therefore he was not being paid for all creditable periods of service. He was advised to contact DFAS officials to correct the error.
5. On 26 September 2011, officials at DFAS dispatched a letter to the applicant informing him that his service had been adjusted from 20 years and 13 days to 21 years, 2 months, and 1 day and that his pay had been recomputed as of 1 February 2000. However, because the barring statute prevented DFAS from paying more than 6 years of back pay, he would only be paid for the last 6 years beginning on 25 June 2011. He was provided a computation of his underpayments which was $10,124.81, less SBP costs back to the date of his retirement and applicable taxes and withholdings.
6. Title 31, U.S. Code, section 3702, also known as the barring statute, 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 evidence of record shows the applicant was REFRAD on 31 January 2000 by reason of sufficient service for retirement and it is reasonable to believe that he properly relied on the Department to properly compute his service and retired pay benefits to which he was entitled. It is also reasonable to believe that had he known that he was not being credited with the correct amount of service that he would have submitted a claim within the a specified period. It is also reasonable to believe that had he received proper assistance from the Army or DFAS he would have applied for the correction in a timely manner. As all relevant information appears to be available, the purpose of the barring statue is not relevant.
2. Inasmuch as the error in this case is an error on the part of the Department and deprives the applicant of benefits to which he earned and is entitled to receive, it would be in the interest of both justice and equity that the applicant be paid all back retired pay due him for the period of 1 February 2000 through 24 June 2005.
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 the applicant was informed of the error in his retired pay and applied for payment all due back retired pay within 6 years of retirement and paying the applicant all back retired pay due him for the period of 1 February 2000 through 24 June 2005.
2. The Board wants the applicant and all others to know that the sacrifices he made in service to the United States are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ _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) AR20120000377
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