IN THE CASE OF:
BOARD DATE: 24 September 2013
DOCKET NUMBER: AR20130000922
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 September 2001).
2. The applicant states that an incorrect pay multiplier was applied when he retired and he received an incorrect amount of retired pay until 31 January 2012 when the error was discovered. He states he was paid back pay for the period
1 September 2006 through 31 January 2012, a total of 6 years. He has been denied the remainder of his back pay (60 months) due to the 6-year barring statute.
3. The applicant provides copies of a letter from the Florida Army National Guard (FLARNG) advising him to apply to this Board, his retirement orders, and his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. On 2 April 2001, retirement orders issued by the FLARNG show the applicant had 20 years, 10 months, and 22 days of service under Title 10, U.S. Code, section 1405, effective 31 August 2001. Additionally, he had 16 years and 13 days of service for basic pay purposes.
2. On 31 August 2001, he was honorably retired at Fort Stewart, Georgia, and was placed on the Retired List in the rank of major effective 1 September 2001. However, for reasons that are not readily apparent, the applicant's retired pay account was established as having 15 years and 9 days of service under Title 10, U.S. Code, section 1405.
3. On 12 December 2012, 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. The Defense Finance and Accounting Service (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 1 September 2006 through 31 January 2012, less Survivor Benefit Plan deductions.
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. Title 31, U.S. Code, section 3702, 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 September 2001 until January 2012.
2. DFAS has paid the applicant back pay due him from 1 September 2006 to
31 January 2012; however, he is still due back pay from 1 September 2001 to
31 August 2006, an additional 5 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 20 years, 10 months, and 22 days of service under Title 10, U.S. Code, section 1405, as reflected on his retirement orders at the time of his retirement on 1 September 2001 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) AR20130000922
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