BOARD DATE: 31 January 2013
DOCKET NUMBER: AR20120007744
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, correction of his records to show his retired pay was calculated based on his inactive duty service under Title 10, U.S. Code, section 1405.
2. The applicant states he was not aware that an error had been made in the amount of his monthly retired pay until a review of his military retirement account was made by the Florida Army National Guard (FLARNG). He forwarded a request for correction to the Defense Finance and Accounting Service (DFAS) on 2 August 2011 and his retired pay was corrected. However, due to the 6-year barring statute, he was only issued back pay for 6 years instead of the full 8 years since his retirement date. Because the Survivor Benefit Plan (SBP) cost is not subject to the 6-year barring statute, the SBP cost was deducted from his back pay for the full 8 years. He believes it is an injustice that the barring statute applies to him because he had no knowledge of the error made during his outprocessing until the review of his retired pay records.
3. The applicant provides his retirement orders, DA Form 2339 (Application for Voluntary Retirement), letter from DFAS, memorandum from the FLARNG, and two fax cover sheets.
CONSIDERATION OF EVIDENCE:
1. On 30 January 2003, the FLARNG published Orders Number P030-037 which directed the applicant's release from active duty effective 30 April 2003 and placement on the Retired List effective 1 May 2003.
2. In a memorandum dated 26 July 2011, the applicant was informed by the FLARNG that a recent review of his military retirement account reflected an error in his monthly retired pay. The FLARNG indicated the error was due to several service time calculations in his retirement orders which more than likely occurred during his out-processing at the transition center. He was also informed that the FLARNG contacted DFAS when the errors were discovered and submitted supporting documentation to DFAS to correct the pay discrepancy. However, because the FLARNG Human Resource Office no longer had jurisdiction or administrative control over his records or retirement account, their attempts to correct his retired pay had been unsuccessful. He was advised to pursue correction directly with DFAS.
3. A fax call report indicates he submitted his request for correction of his retired pay to DFAS on 2 August 2011.
4. In a letter, dated 22 November 2011, he was informed by DFAS that his retired pay record had been corrected. He was also informed that due to the
6-year barring statute, they could only issue payments for within 6 years prior to the receipt date of notification. In his case, DFAS received the notification on 2 August 2011.
5. The DFAS letter shows he received back pay for the period 3 August 2005 through 30 September 2011 based on the 6-year barring statute. The letter also shows that based on correction of his retired pay, SBP costs (not subject to the
6-year barring statute) for the period 1 May 2003 through 30 September 2011 wre deducted from his back pay.
6. 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 provides that the Government is only obligated to pay the individual 6 years from the date of the approval of the claim. Challenges to the barring statute have resulted in litigation in the U.S. Court of Federal Claims.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant retired on 30 April 2003. The evidence also shows an error in the calculation of his retired pay was discovered which would entitle him to back pay and that he was informed of the discrepancies in July 2011.
2. The evidence further shows he immediately requested correction of his retired pay account and that DFAS corrected his retired pay, confirming entitlement to back pay. However, based on the 6-year barring statute, he was only issued payments back 6 years instead of the full 8 years since his retirement date.
3. It appears the error in his retired pay was a result of an administrative oversight by Army personnel and not through his own fault. As a result, it would be appropriate and serve the interest of justice and equity to correct the applicant's records to show the information regarding his time-in-service calculation was sent to DFAS on 30 April 2003. Further, based on this records correction, it would also be appropriate to provide him all back retired pay and allowances due from 1 May 2003 through 2 August 2005 which he was previously denied under the barring statute.
BOARD VOTE:
____X_ ___X_____ ____X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 correcting his records to show the correct information regarding his time in service calculations was sent to DFAS on 30 April 2003 and by paying him all back retired pay and allowances due from 1 May 2003 through 2 August 2005.
__________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) AR20120007744
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120007744
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130001225
The applicant requests relief from the 6-year barring statute for retired pay. 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 1 September 2011. As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by showing the applicant's military retired pay account was established by the Army with 23 years, 9 months, and 18...
ARMY | BCMR | CY2013 | 20130001770
The applicant requests relief from the 6-year barring statute and payment of his full retired pay entitlements effective the date he was placed on the Retired List (1 November 2003). The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates the applicant was one of many who were notified in 2011 that there was a error in their military pay accounts and they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute. As a...
ARMY | BCMR | CY2013 | 20130000947
The applicant requests relief from the 6-year barring statute and payment of his full retired pay entitlements effective the date he was placed on the Retired List (1 October 1999). The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates the applicant was one of many who were notified in 2011 of an error in their military pay accounts and they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute. As a result, the...
ARMY | BCMR | CY2012 | 20120019537
The applicant provides a letter, dated 31 August 2012, to the applicant's Representative in Congress from DFAS. As they received initial notification on 1 August 2011, he was paid a retroactive payment on1 February 2012 for his entitlement from 2 August 2005 through 31 December 2011. b. As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by showing the applicants military retired pay account was established by...
ARMY | BCMR | CY2013 | 20130001846
Since he has been retired longer than 6 years, in order to receive the full amount of retired back pay due, he would have to request relief from the Army Board for Correction of Military Records. The evidence of record also shows DFAS corrected his retired pay, confirmed his entitlement to back pay, and adjusted his retired pay. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: showing the applicant's military retired pay...
ARMY | BCMR | CY2012 | 20120000377
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. It is also reasonable to believe that had he known that he was not being credited with the...
ARMY | BCMR | CY2013 | 20130001848
The applicant requests relief from the 6-year barring statute and payment of his full retired pay entitlements effective the date he was placed on the Retired List (1 July 1998). The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates the applicant was one of many who were notified in 2011 of an error in their military pay accounts and they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute. As a result, the Board...
ARMY | BCMR | CY2013 | 20130000594
The applicant requests relief from the 6-year barring statute and payment of his full retired pay entitlements effective 1 May 2001, the date he was placed on the Retired List. The letter provided by the applicant from the FLARNG, dated 21 December 2012, indicates the applicant was one of many who were notified in 2011 of an error in their military pay accounts and they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute. As a result, the Board...
ARMY | BCMR | CY2013 | 20130013841
The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates the applicant was one of many notified in 2011 that there was an error in their military pay account and that they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute. It is also noted that while DFAS imposed the Barring Act in his case, it charged the applicant with SBP costs retroactive back to the date of his retirement. As a result, the Board recommends that...
ARMY | BCMR | CY2013 | 20130003085
A letter from DFAS shows $80.69 was paid in premiums each month in 2000. b. DFAS states the additional money her husband was paying was due to the buy-in premiums or "Open Season" cost. However, only the spouse SBP premiums are refundable through Public Law 92-425. c. Public Law 105-261 states all SBP premiums will be terminated effective 1 October 2008 for all members who are at least 70 years old and have paid SBP premiums for 360 or more months.