IN THE CASE OF:	

		BOARD DATE:  31 October 2013

		DOCKET NUMBER:  AR20130000603


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 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).

2.  The applicant states:

* an incorrect pay multiplier was applied when he retired
* the Defense Finance and Accounting Service (DFAS) corrected his pay multiplier and paid him back-pay for the period 25 June 2006 through     30 April 2012
* he is still due pay for 96 months since he retired on 30 June 1998
* the error in calculating his retired pay was committed on his retirement date
* he was underpaid since the start of his retirement and he would have received reimbursement in full if not for the barring statute

3.  The applicant provides:

* a letter from the Florida Army National Guard (FLARNG) advising him to apply to the Army Board for Correction of Military Records (ABCMR) 
* a letter from DFAS, dated 21 May 2012
* Orders P113-010, issued by the FLARNG on 23 April 1998
* Orders P120-063, issued by the FLARNG on 30 April 1998
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Orders P113-010, issued by the FLARNG on 23 April 1998, ordered the applicant's release from active duty by reason of retirement, effective 30 June 1998.  These orders show he was credited with the completion of 15 years, 11 months, and 21 days of service under Title 10, U.S. Code, section 1405, effective 30 June 1998.  Additionally, they show he was credited with the completion of 21 years, 6 months, and 10 days of service for basic pay purposes.

2.  On 30 June 1998, he was honorably retired early at Fort Stewart, Georgia, and was placed on the Retired List in the rank of master sergeant (MSG) effective 1 July 1998.

3.  In 2011, the FLARNG notified the applicant that an audit of retiree accounts revealed that an incorrect multiplier had been applied to his account at the time of his retirement and that he was not receiving his correct amount of retired pay.

4.  DFAS notified the applicant that based on the change of his service under Title 10, U.S. Code, section 1405, his retired pay had been changed and that he was being paid back pay for the period 2 April 2005 through 30 April 2012. 

5.  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.  The letter advised the applicant to apply to this Board.

6.  On 21 October 2013, an official at DFAS further audited the applicant's retired account.  The official determined that:

   a. The error with this case, along with the confusing letter to the applicant, stems from multiple changes that were occurring with his account.  His account was originally established by Army personnel with 15 years, 00 months and 20 days of service for both section 1405 and active duty service.  After he retired he completed 3 years, 7 months and 1 day of public service.  The service time was applied to his account accordingly; however, it appears the member's Temporary Early Retirement Act (TERA) reduction factor (based on active duty service totals) was not adjusted.  His original retirement orders showing the correct service times were received by DFAS on 1 April 2011.  The correction to his service was applied; however, the TERA reduction factor was once again erroneously computed. 

   b. A credit, subject to the 6-year bar, was issued to him on 17 May 2012.  During this audit it was discovered that his TERA reduction factor had twice been erroneously computed for a period of time and was not corrected until May of 2012.  He was underpaid from 2 April 2005 (6-year bar date) through 31 October 2011 and overpaid from 1 November 2011 through 30 April 2012.  This appears to be the reason for the greatest amount of confusion with the letter he received.  His gross retired pay figures did decrease on a current basis; however, the bulk of the time period in question showed an increase in gross retired pay.  

7.  Title 31, U.S. Code, section 3702 (Authority to Settle Claims), prohibits the payment of a claim against the government unless the claim has been received within 6 years after the claim accrues.

DISCUSSION AND CONCLUSIONS:

1.  While it is not readily apparent whether the error occurred with the FLARNG or the Fort Stewart Transition Center, the fact remains that the applicant's military pay account was incorrectly reported to DFAS at the time of his retirement and resulted in the applicant being underpaid from 1 July 1998 until 1 May 2012.

2.  DFAS has paid the applicant back pay due him from 2 April 2005 through 
30 April 2012; however, he is still due back pay from 1 July 1998 through 1 April 2005, an additional 7 years.

3.  One of the reasons behind the barring act is relieving the government of excessive paperwork and preventing stale, baseless claims which the government cannot substantiate.  Given the applicant's 20 plus years of service, he is certainly deserving of favorable consideration for his service to his country.  Further, documents verifying the applicant's entitlements are readily available.  Accordingly, application of the barring statute is not appropriate in this case.

4.  It is noted that if the government is going to claim money it is owed for more than 6 years, in the interest of equity it should also pay money that is owed, especially since the error was through no fault of the individual concerned.  Accordingly, application of the 6-year barring statute is not appropriate in this case.







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 the applicant's military retired pay account was established by the Army with the correct number of years of service under Title 10, U.S. Code, section 1405, as reflected on his retirement orders at the time of his retirement on 1 July 1998 and paying him any pay due from that date (less any back pay already disbursed).




      _______ _  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)                                         AR20130000922



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ABCMR Record of Proceedings (cont)                                         AR20130000603



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