IN THE CASE OF:
BOARD DATE: 17 October 2013
DOCKET NUMBER: AR20130001797
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 September 1999).
2. The applicant states his retirement pay multiplier had been incorrectly calculated from the date of his retirement. While the Defense Finance and Accounting Service (DFAS) paid him a portion of the underpayment, he is still entitled to an additional 99 months.
3. The applicant provides copies of his retirement orders, a DFAS Adjustment Audit, and a DFAS pay correction letter,
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Army National Guard (ARNG) on 18 August 1972. He served on initial active duty for training from 7 September 1972 through 24 March 1973.
2. The applicant was commissioned out of Officer Candidate School. He entered active duty in the Active Guard Reserve program out of the Florida ARNG on 1 July 1980 and served on continuous active duty until his retirement.
3. He retired effective 31 August 1999. His retirement orders, as amended, show his retired pay was calculated based on 20 years, 1 month, and 26 days of service under Title 10, U.S. Code, section 1405.
4. By letter dated 12 December 2012, the FLARNG indicated 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 DFAS imposing the 6-year barring statute. The letter advised the applicant to apply to this Board.
5. Information received from DFAS confirms the applicant's retired pay account should have reflected 21 years, 4 months, and 29 days. 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.
6. 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 what caused the error, 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 September 1999 until July 2011. DFAS has paid the applicant back pay due him from 17 November 2006 to 30 November 2012; however, he is still due back pay from 31 August 1999 to 16 November 2006.
2. 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. 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 21 years, 4 months and 29 days of service under Title 10, U.S. Code, section 1405, at the time of his retirement on 1 September 1999 as reflected on his retirement orders and paying him all back 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) AR20130001797
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ABCMR Record of Proceedings (cont) AR20130001797
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