IN THE CASE OF:
BOARD DATE: 25 July 2013
DOCKET NUMBER: AR20130000947
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 October 1999).
2. The applicant states an incorrect pay multiplier was applied when he retired and he received an incorrect amount of retired pay until October 2011 when the error was discovered. He states he was paid back pay for 6 years to 20 October 2005, but he has been denied the remainder of his back pay (84 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, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a letter from the Defense Finance and Accounting Service (DFAS) advising him of the adjustment to his retired pay account.
CONSIDERATION OF EVIDENCE:
1. The applicant's retirement orders issued by the FLARNG on 16 August 1999 show:
* computation of his active service under Title 10, U.S. Code, section 3914 (10 USC 3914) as 21 years, 3 months, and 11 days
* computation of his retired pay under 10 USC 1405 as 23 years, 3 months, and 11 days
* 31 years, 6 months, 24 days of service for basic pay purposes.
2. He was retired at Fort Stewart, GA on 30 September 1999 and placed on the Retired List on 1 October 1999.
3. On 30 March 2012, DFAS notified the applicant his retired pay account was being adjusted based on an incorrect multiplier for service that had been applied to his account the time of his retirement. Because of this error he was underpaid.
a. Their file indicated 21 years, 1 month, and 26 days and the correct information is 23 years, 3 months, and 11 days.
b. An Adjustment Audit shows his retirement pay was adjusted with a credit from 20 October 2005 to 31 October 2011. However, it shows his Survivor Benefit Plan (SBP) premiums were adjusted all the way back to his date of retirement, 1 October 1999.
4. 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.
5. 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 October 1999 until November 2011.
2. DFAS has paid the applicant back pay due him from 20 October 2005 to
31 October 2011; however, he is still due back pay from 1 October 1999 to
19 October 2005.
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 31+ years of service, he is certainly deserving of favorable consideration for his service to his country.
4. It is noted that while DFAS imposed the 6-year barring act in his case, it charged the applicant with SBP costs retroactive to the date of his retirement. 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. Further, documents verifying the applicant's entitlements are readily available. Accordingly, application of the 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 the evidence presented is sufficient to warrant a recommendation for relief. 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, 3 months, and 11 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 October 1999 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) AR20130000947
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ABCMR Record of Proceedings (cont) AR20130000947
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