IN THE CASE OF:
BOARD DATE: 31 July 2012
DOCKET NUMBER: AR20120000921
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 back pay for the period 1 February 2004 through 31 March 2005.
2. She states she retired on 31 January 2004, and her pay multiplier was incorrect. The error has been corrected and she received back pay for the period 1 April 2005 through 31 May 2011. The back pay she received covers 74 months, but she is due back pay for 88 months.
3. She provides correspondence she received from the Defense Finance and Accounting Service (DFAS), orders releasing her from active duty and placing her on the retired list, and her DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant's official military personnel file is not available for review. This case is being considered using the documents she provides and information obtained from DFAS.
2. On 5 September 2003, the Office of the Adjutant General, Florida National Guard, St. Augustine, FL, issued Orders P248-010 releasing the applicant from active duty effective 31 January 2004 and placing her on the retired list effective 1 February 2004.
3. Her DD Form 214 shows she retired on 31 January 2004 as a staff sergeant (SSG)/E-6 after completing 20 years, 2 months and 17 days of total active service.
4. On 13 June 2011, DFAS notified her of an adjustment to her retired pay due to a correction of an item used in the computation of her pay. DFAS informed her she had been underpaid from 1 April 2005 through 31 May 2011 in the amount of $4,440.
5. On 27 February 2012, during the processing of this case, a DFAS Financial Management Analyst stated that, due to the 6-year barring statute, the applicant could only be paid back pay retroactive to 6 years prior to the date of her inquiry. DFAS received her inquiry on 1 April 2011, and her retroactive pay was for the period 1 April 2005 through 31 May 2011.
6. Title 31, U.S. Code, section 3702 is the 6-year barring statute for payment of claims by the Government. One of the principle purposes of the statute is to relieve the Government of over-burdensome recordkeeping requirements.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that based on an inquiry from the applicant, DFAS identified an error in the calculation of her retired pay and corrected the error. The error resulted in underpayment in the amount of $4,440 for the period 1 April 2005 through 31 May 2011, a period beginning 6 years prior to the date of her inquiry.
2. Since the error in calculating the applicant's retired pay was committed on or shortly before her 31 January 2004 discharge, it is obvious she was underpaid from 1 February 2004, the start date of her retirement, and could have received payment if not for the barring statute.
3. It appears that DFAS has the information it needs to calculate the amount she was underpaid from 1 February 2004 through 31 March 2005. Considering that the necessary information is available, there would be no harm in paying her the amount she was underpaid for the period in question. The Government is not harmed because all documents establishing her entitlement are readily available.
4. Notwithstanding the decision by DFAS to deny her request for payment based on the 6-year barring statute, as a matter of equity, it would be appropriate to correct her record to show she made a timely application for correction of her retired pay, for DFAS to calculate any additional back retired pay she is due for the period 1 February 2004 through 31 March 2005, and to pay her the amount calculated.
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:
a. correcting her record to show she made a timely application for correction of her retired pay,
b. calculating the back retired pay she is due for the period 1 February 2004 through 31 March 2005, and
c. paying her the amount calculated.
_______ _ 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) AR20120000921
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ABCMR Record of Proceedings (cont) AR20120000921
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