BOARD DATE: 2 May 2013
DOCKET NUMBER: AR20130001655
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 April 1996).
2. The applicant states an incorrect pay multiplier was applied when he retired and he received an incorrect amount of retired pay until 29 February 2012 when the error was discovered. He states he was paid back pay for 6 years to 31 August 2006, but he is still owed for 124 months of back pay and he has been denied the remainder of his back pay due to the 6-year barring statute.
3. The applicant provides copies of a letter to the Board, his DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter from the Florida Army National Guard (FLARNG) advising him to apply to this Board for his back pay, a letter to his Congressional representative with attachments, and email.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 8 August 1969. He was honorably released from active duty on 11 February 1972.
2. On 12 February 1973, he enlisted in the FLARNG and he was discharged on 11 February 1975. On 5 February 1983, he again enlisted in the FLARNG and he entered active duty in the Active Guard Reserve Program on 26 September 1983.
3. He continued to serve on active duty until he was honorably retired in pay grade E-7 on 31 March 1996 at Fort Stewart, Georgia, based on voluntary early retirement and was placed on the Retired List effective 1 April 1996.
4. Retirement orders issued by the FLARNG at the time of his retirement show he had 15 years, 7 months, and 13 days of service under Title 10, U.S. Code, section 1405. However, for reasons that are not readily apparent, the applicant's retired pay account was established as having 15 years, 1 month and 28 days of service under Title 10, U.S. Code, section 1405. Additionally, he had 18 years, 8 months, and 1 day of service for basic pay purposes.
5. 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 6-year barring statute. The letter advised the applicant to apply to this Board.
6. Information received from DFAS confirms the applicant's retired pay account was originally established by the Army with 15 years,1 month, and 23 days of service under Title 10, U.S. Code, section 1405. In July 2011, the applicant provided DFAS with a copy of his retirement orders showing he had 15 years, 7 months, and 13 days of service under Title 10, U.S. Code, section 1405. Accordingly, DFAS paid the applicant for the last 6 years of pay due him and imposed the 6-year barring statute for the remaining 6 years.
7. 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 April 1996 until August 2011.
2. DFAS has paid the applicant back pay due him from August 2006 to February 2012; however, he is still due back pay from April 1996 to July 2006, an additional 10+ 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 18+ 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.
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 15 years, 7 months, and 13 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) AR20130001655
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