IN THE CASE OF:
BOARD DATE: 2 May 2013
DOCKET NUMBER: AR20130001770
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 November 2003).
2. The applicant states an incorrect pay multiplier was applied when he retired and he received an incorrect amount of retired pay until September 2011 when the error was discovered. He states he was paid back pay for 6 years to 1 November 2005, but 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 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 was discharged from the Regular Army in pay grade E-5 on 25 August 1989 due to the expiration of his term of service. He completed 6 years, 10 months, and 13 days of active service.
2. On 26 August 1989, he enlisted in the Florida Army National Guard (FLARNG) and he entered active duty in the Active Guard Reserve Program as a recruiter on 1 October 1990. He was promoted to pay grade E-7 on 3 May 1992.
3. On 13 June 2003, retirement orders were published by the FLARNG showing he had 20 years, 2 months and 20 days of service under Title 10, U.S. Code, section 1405, effective 31 October 2003. Additionally, he had 21 years, 3 months, and 11 days of service for basic pay purposes.
4. On 31 October 2003, he was honorably retired at Fort Stewart, Georgia, and he was placed on the Retired List in pay grade E-6 effective 1 November 1998. However, for reasons that are not readily apparent, the applicant's retired pay account was established as having 20 years and 8 days of service under Title 10, U.S. Code, section 1405.
5. On 9 September 2011, 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 he was being paid back pay for the past 6 years to 1 April 2005, less Survivor Benefit Plan (SBP) deductions to 1 November 2003.
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 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. The letter advised the applicant to apply to the Board.
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 November 2003 until September 2011.
2. DFAS has paid the applicant back pay due him from 1 April 2005 to September 2011; however, he is still due back pay from 1 November 2003 to 31 March 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 21+ 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 20 years, 2 months, and 20 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 November 2003 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) AR20130001770
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ABCMR Record of Proceedings (cont) AR20130001770
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