BOARD DATE:	  2 July 2013

		DOCKET NUMBER:  AR20120022462 


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 submitted three applications, dated on various dates but received on the same date.

	a.  In her first request, dated 15 September 2012, she requests:

* correction of her December 1998 and January 1999 Leave and Earnings Statements (LES)
* correction of the Defense Finance and Accounting Service (DFAS) letter, dated 4 January 1999, welcoming her to the Retired roll 

	b.  In her second request, dated 31 October 2012, she requests correction of the following: 

* retirement plan/formula and retirement pay computation
* the time she spent on the temporary disability retired list (TDRL)
* reimbursement of any monies as a result of this correction 

	c.  In her third request, dated 8 November 2012, she requests removal of a $619.33 debt that resulted from an audit by DFAS of her retired pay account. 

2.  The applicant states the three documents, mentioned in her first request, are in error.  They overlap and cover the same periods.  The amounts owed to her on each document differ.  A member cannot receive pay from two Government organizations at the same time.
	a.  The December 1998 and January 1999 LES are incorrect because she was not on active duty for 31 days in December 1998.  She was on active duty for 10 days.  The LES should cover 10 days.  Additionally, the net pay due is shown as zero.  It should be $12,592.78.  

	b.  The period from 11 to 31 December 1998 with its corresponding pay of $2,930.74 which was placed on the January 1999 LES should be omitted.  She was actually on the TDRL.  The January 1999 LES should not have been generated.  The January 1999 LES was generated and contains the collective amount of $10,000 for lump sum and separation leave.  

	c.  She could not have received this amount because she was not on active duty.  The DFAS document, dated 4 January 1999, shows the payment of $813.45 (20 days of pay) as the payment that was made at the time. 

	d.  DFAS made an error in their response to her Member of Congress that the last LES she received was for December 1998.  Yet, all income is shown on her January 1999 LES and DFAS forgot to pay her.  

	e.  DFAS calculated her pay in error.  Not only did DFAS state she received the amount of $1,377.00 from 11 to 31 December 1998, their document, dated 4 January 1999, stated she received the amount of $813.45 at the time. 

	f.  Since she retired for disability, her retirement plan should have been based on chapter 61, Title 10, U.S. Code.  Instead, DFAS calculated her pay based on the high three formula.  Applying the wrong formula resulted in an understatement of her retired pay over the years.  

	g.  She was sick between 1997 and 2005.  She has documents which state secret meetings were conducted to remove her from the TDRL without her knowledge or without the Army's permission.  

	h.  She was entitled to choose the method of pay that yielded the greatest amount of retirement pay.  DFAS did not give her that opportunity. 

	i.  Overall, several errors were committed in relation to her pay in December 1998 and then her retirement formula, computation of her retired pay, the length of time she was placed on the TDRL, and the more recent debt that occurred as a result of an audit of her pay records by DFAS.  

	j.  She has communicated her concerns to DFAS on several occasions through the use of an attorney and then her member of Congress.  DFAS officials refuse to further address her issues. 
3.  The applicant provides:

* Self-authored breakdown of each LES
* Listing of what appears to be her credit report
* Divorce decree
* Audit Request Form
* Letter, dated 3 August 2009, from DFAS
* Letter, dated 22 July 2010 to DFAS
* Two additional letters, dated 15 February 2012 to DFAS
* DD Form 827 (Application for Arrears in Pay)
* Letter, dated 12 April 2012 from DFAS
* Airline passenger receipt
* December 1998 and January 1999 LES
* Letter, dated 4 January 1999, from DFAS
* DFAS Summary of Retired Pay Account
* Department of Veterans Affairs (VA) rating decision and reviews
* January 1996 through January 1999 LES
* 1998 military basic pay chart
* Letter, dated 8 August 2012, from DFAS to her Member of Congress
* February 2011 and August 2012 Retiree Account Statements
* Medical document
* Letter from her former attorney

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Army National Guard, the applicant enlisted in the U.S. Army Reserve (USAR) on 8 September 1987.  In connection with this enlistment, she executed a Reserve Officers' Training Corps (ROTC) contract.  She attended Virginia State University. 

2.  She was discharged from the USAR Control Group (ROTC) on 19 May 1989. She was appointed as a Reserve commissioned officer and executed an oath of office on 20 May 1989.  She completed the Adjutant General Officer Basic Course from 4 June to 29 August 1990.  

3.  She also completed the Army Medical Department (AMEDD) Officer Basic Branch Qualification Course from 6 October to 22 November 1993. 

4.  She was ordered to active duty to fulfill her active duty commitment.  She entered active duty on 4 January 1994 and completed the AMEDD Officer Basic Course from 5 January to 31 March 1994.  She was then assigned to Walter Reed Army Medical Center.  
5.  She was promoted to first lieutenant (1LT) on 16 November 1994 and she was later reassigned to the U.S. Army Medical Department Activity, Fort Belvoir, VA.  

6.  On 9 September 1997, by letter, the U.S. Total Army Personnel Command (now-called the U.S. Army Human Resources Command) notified her of her non-selection for promotion to captain and tentative release from active duty effective 1 February 1998, with entitlement to separation pay, if otherwise eligible.  

7.  Prior to her separation, in November 1997, after having undergone various medical/mental status evaluations, medical officials recommended her entry into the Army physical disability evaluation system.  

8.  On 18 February 1998, a medical evaluation board (MEB) convened and found that the applicant had the medically unacceptable condition of major Depressive Disorder.  The MEB recommended her referral to a physical evaluation board (PEB).  The applicant agreed and indicated she did not desire to continue on active duty.  

9.  On 2 June 1998, an informal PEB convened and found the applicant's condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit due to major depression.  She was rated under and was granted a 30-percent (30%) disability rating (but paid at the rate of 50% by law).  The PEB recommended her placement on the TDRL.  She concurred and waived her right to a formal hearing of her case.  

10.  On 7 December 1998, Headquarters, U.S. Army Garrison, Fort Belvoir, VA, published Orders 341-003 separating her from active duty and placing her on the TDRL effective 11 December 1998.

11.  She retired on 10 December 1998 and she was placed on the TDRL in her retired grade of 1LT on 11 December 1998 by reason of temporary disability. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) credited her with 4 years, 11 months, and 7 days of active service and 5 years, 6 months, and 21 days of prior inactive service.  

12.  Her December 1998 LES, covering the entire month of December 1998, shows:

* Total entitlements consisting of basic pay, basic allowance for subsistence, basic housing allowance, of $4,015.18
* Total deductions consisting of federal taxes, social security and medicare, insurance, and "$2,930.74 Status Det (Status determination held pay)," of $3,498.75
* Total allotments of $516.63
* End of Month Pay: Zero

13.  Her January 1999 LES, final LES adjusting any overpayments/collections, shows:

* Total entitlements consisting of basic pay, basic allowance for subsistence, basic housing allowance, lump sum leave (she sold 60 days of leave), and credit for the $2,930.74 held pay, of $6,338.47
* Total deductions consisting of the separation pay she previously received of $4,754.40 
* End of Month Pay: $1,584.07

14.  On 4 January 1999, by letter, DFAS welcomed her to the Retired rolls and explained to her the difference in computation of her retired pay between using the Percentage of Disability (Method A) and using the Years of Active Service (Method B).  DFAS officials advised her that based on a ruling by the United States Comptroller General, if she did not make an election within 45 days of receipt of this letter of which method of pay she preferred, it will be viewed as an affirmative election to accept the rate at which her account was established.  She was advised that an election made after 45 days is not acceptable and once an election is made, it is final and conclusive for all purposes while she is on the TDRL or if she was permanently retired.

* Method A multiplies her basic pay of $2,754.45 times 50% equals $1,377.00
* Method B multiplies her basic pay of $2,754.45 by the percent multiplier of 19.18% equals $545

15.  There is no indication she responded to the DFAS letter or made a written and signed election of which pay method she elected.  Accordingly, DFAS established her retired pay account as follows:

* Monthly pay of $1,377
* Less authorized allotment of $516.43
* Less Survivor Benefit Plan premium of $89.51
* Less Federal Income Tax of $159.97
* Net amount due of $611.09

16.  Her initial period of entitlement from 11 December 1998 through 31 December 1998 consisted of:  

* Gross Pay of $918.00
* Federal Income Tax of $104.55 
* Net Amount Due of $813.45

17.  On 8 February 2000, a TDRL PEB convened and determined her condition remain unfitting and had not stabilized to the point that a permanent degree of severity could be determined.  Accordingly, the PEB retained her on the TDRL with future reevaluation. 

18.  On 25 October 2001, a TDRL convened and determined that the applicant remained physically unfit but her condition had stabilized sufficiently for final adjudication and/or rating purposes.  The TDRL PEB recommended her permanent retirement at the rate of 30%.  She concurred and ultimately permanently retired on 10 January 2002. 

19.  On 4 May 2010, in response to her petition, the Board corrected her DD Form 214 by issuing her a DD Form 215 (Correction to DD Form 214) that shows her service in Haiti, foreign service of 4 months and 23 days, and her prior inactive service of 6 years, 5 months, and 12 days.

20.  On 18 January 2011, in response to a second petition, the Board corrected her DD Form 214 by voiding the previously-issued DD Form 215 and issuing her a new DD Form 215 that shows her service in Haiti, foreign service of 4 months and 23 days, and her prior inactive service of 6 years, 1 months, and 28 days.

21.  On 8 August 2012, a DFAS official replied to an inquiry by her Member of Congress pertaining to her military retired pay.  The DFAS official stated:

	a.  The applicant was placed on the TDRL on 11 December 1998 with a 30% disability rating.  However, as required by law, any rating lower than 50% is paid at the rate of 50%.  Therefore, while her disability rating was 30%, she was actually paid at the rate of 50% for the duration of her time on the TDRL.

	b.  She was removed from the TDRL and permanently retired on 11 January 2002 at the rate of 30%.  Once the Army transmitted this information to DFAS, her account was updated to reflect her transfer to the permanent retired list effective 10 January 2002.  

	c.  By law (Title 38, U.S. Code, section 5305), a retiree must waive a portion of their gross retired pay, dollar for dollar, entitlement to VA compensation.  This is known as the VA Waiver.  Effective 1 January 2011, her VA disability compensation was greater than her military retired pay.  Therefore, her retired pay account was suspended.  

	d.  An audit of her military pay account indicated her account was calculated incorrectly.  Her original 36 highest monthly basic rate received on active duty was incorrectly computed as $2,744.30.  This correction was applied to her account on 31 July 2012.  This change resulted in a debt of $619.33 for the period 1 December 1998 through 31 December 2010, the date her retired pay was suspended.  

22.  On 7 November 2012, subsequent to various requests for an audit of her retired account, DFAS officials audited her retired account and discovered that she retired under the correct retirement plan.  Additionally, as a result of this audit, it was discovered that she was overpaid an average of $4 to $5 per year between 11 December 1998 and 31 December 2010.  As such, she was indebted to the U.S. Government in the amount of $619.33.  She was provided with options regarding payment of this debt. 

23.  Title 10, U.S. Code, section 1210(h), provides that, if the member’s name is not sooner removed, the disability pay of a member whose name is on the TDRL terminates upon the expiration of 5 years after the date when his or her name was placed on that list.

24.  Title 31 U.S. Code, section 3702, 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 applicant was not selected for promotion to captain.  Accordingly, she was notified that she would be discharged from active duty with entitlement to separation pay if otherwise qualified.  She appears to have received the separation pay in December 1998.  Meanwhile, she was undergoing disability processing and her case was adjudicated in December 1998.

2.  With respect to her LES:

	a.  During December 1998, she was on active duty from 1 to 10 December 1998.  However, she received full benefits of basic pay, basic housing allowance, and basic allowance for sustenance.  Additionally, her December 1998 LES reflected the entry "Status Det" and the amount of $2,930.74.

	b.  Many times, a local finance office would separate a member only for DFAS to receive paperwork that they owe money or are entitled to money for whatever reason.  Once a member is separated (discharged, retired, released from active duty) and has been paid a final check, it's administratively hard and costly to recoup or pay back that money.  Most of the time, DFAS would make a payment to the Soldier within 45 days after date of discharge.  

	c.  Since the applicant received full benefits during December 1998, she owed a portion of that money.  A subsequent LES was issued in January 1999 balancing her account by subtracting any overpayments and crediting her "Status Det."  The LES is not issued once the Soldier is no longer on active duty/Selected reserve.  Likewise, there is no provision to correct an LES or issue a corrected LES for a period that had already expired. 

	d.  The applicant's December 1998 and January 1999 correctly listed her entitlements, deductions, allotments, and net pay.  She did not provide any evidence to show those entries is in error.  As such, she is not entitled to this portion of the requested relief. 

3.  With respect to the 4 January 1999 DFAS letter:

	a.  When a Soldier retires, the Retired Pay Department at DFAS establishes the retired pay account.  As soon as this account is established, a member is mailed a Summary of Retired Pay Account that summarizes their entitlements, deduction, taxes, and monthly net pay.  

	b.  Some Soldiers retire under more than one retirement plan.  DFAS establishes retired pay at the gross monthly rate which affords the member the greatest amount.  Soldiers are not required to make an election of retired pay computations.  However, as per the ruling by the United States Comptroller General, if they decide to do so but if they do not respond within 45 days from the date of receiving their Summary of Retired Pay Account, DFAS views this as an affirmative election to accept the rate at which the account was established. 

	c.  The applicant has not provided any evidence that she submitted a personally signed statement of election indicating which election of pay 

computation method she elected.  As such, DFAS established her pay computation method which is final and conclusive for all purposes.  

	d.  Therefore, her contention in relation to the DFAS letter, dated 4 January 1998, is without merit.  She is also not entitled to this portion of the requested relief.

4.  The applicant contacted DFAS through her private attorney as well as through her Member of Congress.  DFAS complied and audited her retired pay record.  As a result of this audit, DFAS concluded the applicant retired under the correct retirement law.  Also as a result of this audit, it was determined she was overpaid throughout the years.  A correction of her retired pay record led to the establishment of a $618.33 debt.  This debt is a valid debt.  She has not shown this debt is in error and as such, she should not be relieved from paying it.  

5.  Finally, the issue of remaining on the TDRL was previously addressed by the Board.  The law allows for retaining a Soldier on the TDRL for a maximum of 5 years.  However, it does not mandate that the Soldier remain on the TDRL for the maximum number of years.  The PEB, empowered to determine the fitness of a Soldier, has the authority to determine if and when a Soldier's condition has sufficiently stabilized for final adjudication.  In her case, this happened on           25 October 2001.  There is neither an error nor an injustice in her removal from the TDRL prior to the 5-year mark.  Therefore, she is also not entitled to the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 

are insufficient as a basis for correction of the records of the individual concerned.



      _______ _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.



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