BOARD DATE: 17 December 2013
DOCKET NUMBER: AR20130001113
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:
11. 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 April 2002).
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 3 November 2005 to 30 September 2011
* he is still due pay for 43 months since he retired on 31 March 2002
* 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 26 October 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. Having had prior service, the applicant entered active duty as a member of the FLARNG on 15 August 1986. He served through multiple extensions in various assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.
2. Orders P004-025, issued by the FLARNG on 4 January 2002, ordered the applicant's release from active duty by reason of retirement, effective 31 March 2002. These orders show he was credited with the completion of 21 years, 07 months, and 17 days of service under Title 10, U.S. Code, section 1405. Additionally, they show he was credited with the completion of 29 years, 2 months, and 07 days of service for basic pay purposes.
3. On 31 March 2002, he was honorably retired at Fort Stewart, Georgia, and was placed on the Retired List in the rank/grade of SSG/E-6 effective 1 April 2002.
4. 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.
5. DFAS notified the applicant that his retired pay had been changed and that he was being paid back pay for the period 2 September 2005 through 30 September 2011.
6. 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.
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 March 2002 until 30 September 2011.
2. DFAS has paid the applicant back pay due him from 2 September 2005 through 30 September 2011; however, he is still due back pay from 1 March 2002 through 1 September 2005, nearly 43 months.
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 because 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:
a. 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 March 2002; and
b. paying him any and all monies due as a result of this correction without regard to the 6-year barring statute, less an disbursements already made.
_______ _ 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) AR20130001113
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ABCMR Record of Proceedings (cont) AR20130001113
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