IN THE CASE OF:
BOARD DATE: 10 October 2013
DOCKET NUMBER: AR20130001225
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 for retired pay.
2. The applicant states his pay multiplier was incorrect when he retired. The Defense Finance and Accounting Service (DFAS) corrected his pay multiplier and he has received back pay for the period 2 April 2006 to 30 July 2011. He is still due pay for 93 months since he retired on 30 June 1998. The error in calculating his pay was committed on his retirement date. He was underpaid since the start of his retirement and could receive payment in full if not for the
6-year barring statute.
3. The applicant provides:
* 1998 retirement orders
* 1998 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from DFAS
* memorandum from the Florida Army National Guard (FLARNG)
CONSIDERATION OF EVIDENCE:
1. The applicant was serving on active duty in the Active Guard Reserve Program with the FLARNG. On 30 June 1998, he was honorably retired and placed on the Retired List effective 1 July 1998. His retirement orders show he had 23 years, 9 months, and 18 days of service under Title 10, U.S. Code, section 1405. Additionally, he had 30 years, 10 months, and 14 days of service for basic pay purposes.
2. On 26 September 2011, DFAS dispatched a letter to the applicant informing him that his service had been adjusted to 23 years, 9 months, and 18 days of service for basic pay and his pay had been recomputed as of 30 June1998. However, because the barring statute prevented DFAS from paying more than 6 years of back pay, he would only be paid for the last 6 years beginning on 1 September 2011. He was provided a computation of his underpayments which was $6,099.74, less Survivor Benefit Plan costs back to the date of his retirement and applicable taxes and withholdings.
3. On 12 December 2012, the FLARNG informed the applicant that he was one of many Soldiers who did not receive full relief of money owed. The 6-year barring statute allowed DFAS to pay 6 years in arrears. The applicant had been retired for longer than 6 years. In order to receive the full amount of pay, the applicant should request full relief from the ABCMR. There was no guarantee the ABCMR would grant relief.
4. Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the Comptroller General 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 September 2011.
2. DFAS has paid the applicant back pay due him from 2 April 2005 to 30 July 2011; however, he is still due back pay from 1 July 1998 to 1 April 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 23+ 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.
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. 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 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, 9 months, and 18 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 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) AR20130001225
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130001225
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130000603
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). 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. As a result, the Board...
ARMY | BCMR | CY2013 | 20130001848
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). 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. As a result, the Board...
ARMY | BCMR | CY2013 | 20130001113
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). 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. As a result, the Board...
ARMY | BCMR | CY2013 | 20130000947
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). 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. As a result, the...
ARMY | BCMR | CY2013 | 20130000594
The applicant requests relief from the 6-year barring statute and payment of his full retired pay entitlements effective 1 May 2001, the date he was placed on the Retired List. The letter provided by the applicant from the FLARNG, dated 21 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. As a result, the Board...
ARMY | BCMR | CY2013 | 20130001770
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 November 2003). 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 that there was a 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. As a...
ARMY | BCMR | CY2013 | 20130000922
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). 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. As a result, the...
ARMY | BCMR | CY2013 | 20130013841
The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates the applicant was one of many notified in 2011 that there was an error in their military pay account and that they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute. It is also noted that while DFAS imposed the Barring Act in his case, it charged the applicant with SBP costs retroactive back to the date of his retirement. As a result, the Board recommends that...
ARMY | BCMR | CY2013 | 20130001655
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 1996). The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates he was one of many who were notified in 2011 that there was a error in their military pay accounts and they were not receiving full relief of monies owed due to the Defense Finance and Accounting Service (DFAS) imposing the...
ARMY | BCMR | CY2013 | 20130011399
The applicant requests relief from the 6-year barring statute and payment of her full retired pay entitlements effective 1 August 2001, the date she was placed on the Retired List. The letter provided by the applicant from the FLARNG, dated 12 December 2012, states the applicant was one of many notified in 2011 that there was an error in their military pay accounts and who were not receiving full relief of monies owed due to DFAS having imposed the 6-year barring statute. As a result, the...