IN THE CASE OF:	  

		BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120002021 


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 the balance of his non-regular retired pay.

2.  He states that he applied for his retirement in accordance with published guidance but his request was not processed in a timely manner resulting in him exceeding the 6-year time limitation and only receiving a partial payment.

3.  He provides correspondence he received from the Defense Finance and Accounting Service (DFAS), orders placing him on the retired list, postal receipts, a retirement handbook, and miscellaneous retirement documents.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant, a retired Army National Guard master sergeant (MSG)/E-8, entered into active duty on 8 March 1960.  His records show he served continuously until he was transferred to the Retired Reserve effective 4 March 1987.   

3.  He turned 60 on 12 September 2000 but he did not submit an application for retired pay at that time.  Personnel notes in the U.S. Army Human Resources Command’s (HRC’s) Soldier Management System (SMS) show he made several inquiries beginning in March 2002 requesting his retirement packet.  Additional entries show that the retirement packet was mailed several times but never received by the applicant.  Finally, on 16 May 2011, the packet was received and processed at HRC.

4.  On 18 May 2011, HRC published Orders Number P05-945609, placing him on the retired list effective 12 September 2000.

5.  Subsequent to various inquiries, DFAS, in a letter dated 10 August 2011, informed the applicant's congressman that the applicant's pay account was established on 1 August 2011 and regular monthly payments would begin on 
1 September 2011.  Further, he was due retroactive military retired pay for the period 16 May 2005 through 31 July 2011 in the amount of $26,454.69 (net pay after withholdings and Reserve Component Survivor Benefit Plan (RCSBP) premiums).  However, the Barring Act or Statute of Limitations states that claims against the government must be made within six years from the date of his retirement orders; therefore, he could apply to the U.S. Army Finance Management Command (USAFINCOM) for a waiver of the statute of limitations.

6.  On 3 September 2011, he requested the USAFINCOM waive the statute of limitation on his retirement claim.  He stated that he applied for his retirement in September 2000, October 2001, October 2002, October 2004, and October 2005 based on the guidance provided in the U.S. Army Reserve Personnel Center Pamphlet 135-2 (Handbook on Retirement Services).

7.  In an undated letter from USAFINCOM, he was informed that DFAS-Retired Pay, the Office of General Counsel, and HRC were in agreement that he would need to apply to the Army Review Boards Agency for relief.  His request for waiver was denied because his retirement orders were dated 18 May 2011; therefore, he could only receive retroactive pay dating back to 16 May 2005.

8.  He provided copies of postal receipts which show he mailed his DD Form 
108 (Application for Retired Pay Benefits) and DD Form 2656 (RCSBP Election 


Certificate) to the Support Management Center, U.S. Army Reserve Personnel Command, on five separate occasions between 28 September 2000 and 
30 October 2005.

9.  Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government.  In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim.  Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims.  In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, that he be retroactively paid the balance of his non-regular retired pay.

2.  The available records show that orders dated 18 May 2011 placed him on the retired list effective 12 September 2000.   Postal receipts show he made several attempts to apply for his retirement pay in a timely manner and the failure to process his request in a timely manner was not the fault of the applicant.  It appears numerous administrative errors delayed the receipt of his retirement pay until 1 September 2011 and caused him to exceed the 6-year barring statute for payment of claims by the government; therefore, it would be appropriate to correct his pay record to grant the remainder of his retirement pay based on the effective date of 12 September 2000. 

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 12 September 2000 and he applied for retired pay in a timely manner to be effective 12 September 2000
* paying him any unpaid 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)                                         AR20120002021





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ABCMR Record of Proceedings (cont)                                         AR20120002021



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