IN THE CASE OF:
BOARD DATE: 24 September 2013
DOCKET NUMBER: AR20130001846
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, in effect, correction of his records to show his retired pay was calculated based on his service under Title 10, U.S. Code, section 1405 (10 USC 1405).
2. The applicant states he was placed on the retired list effective 1 April 2003 and the pay multiplier used to calculate his retired pay was incorrect. On 17 July 2012, the Defense Finance and Accounting Service (DFAS) corrected his pay multiplier and he received back pay that was due for the period 18 July 2006 through 30 April 2012. However, due to the 6-year barring statute, he was only issued back pay for 6 years. He is still due back pay for the period 1 April 2003 through 17 July 2006.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), retirement orders, and two letters.
CONSIDERATION OF EVIDENCE:
1. A DD Form 214 shows the applicant was honorably retired from active duty on 31 March 2003 and transferred to the U.S. Army Reserve Control Group (Retired). It also shows he completed 13 years, 6 months, and 25 days of net active service this period; 8 years, 5 months, and 11 days of total prior active service; and 5 years, 2 months, and 5 days of total prior inactive service.
2. Florida Army National Guard (FLARNG), Office of The Adjutant General,
St. Augustine, FL, Orders Number P337-020, dated 3 December 2002, directed the applicant's release from assignment and duty effective 31 March 2003 and placement on the Retired List effective 1 April 2003. The orders show he was credited with 22 years, 0 months, and 6 days for mandatory retirement; 22 years, 7 months, and 6 days under 10 USC 1405 service; and 27 years, 2 months, and 11 days for basic pay.
3. In support of his application the applicant provides the following documents:
a. DFAS letter, dated 17 July 2012, that informed the applicant due to a correction to an item used in the computation of his retired pay, his retired pay was adjusted. DFAS had based its calculation on 22 years, 0 months, and
6 days, whereas the correct information is 22 years, 7 months, and 6 days. This resulted in a credit of $3,774.17 from 20 October 2005 to 30 April 2012.
b. FLARNG, Office of The Adjutant General, St. Augustine, FL, memorandum, dated 12 December 2012, informed the applicant that DFAS corrected his military retired pay account. However, due to the 6-year barring statute, DFAS was only allowed to pay him 6 years in the arrears. Since he has been retired longer than 6 years, in order to receive the full amount of retired back pay due, he would have to request relief from the Army Board for Correction of Military Records.
4. Title 31, USC, section 3702, is the 6-year barring statute for payment of claims by the Government. In essence, if an individual brings a claim against the Government for monetary relief, the barring statute provides that the Government is only obligated to pay the individual 6 years from the date of the approval of the claim.
DISCUSSION AND CONCLUSIONS:
1. The applicant retired on 31 March 2003 and was placed on the retired list effective 1 April 2003.
2. The evidence of record shows an error was discovered in the calculation of the applicant's retired pay which would entitle him to back pay and he was informed of the discrepancies in July 2012.
3. The evidence of record also shows DFAS corrected his retired pay, confirmed his entitlement to back pay, and adjusted his retired pay. However, based on the 6-year barring statute, he was only issued arrears of pay for 6 years instead of for the entire period since his retirement on 1 April 2003.
4. It appears the error in the applicant's retired pay was a result of an administrative oversight by U.S. Army/Department of Defense personnel and not through his own fault. As a result, it would be appropriate and serve in the interest of justice and equity to correct the applicant's records to show the information regarding his time-in-service calculations was made known to DFAS on 31 March 2003. Further, based on this records correction, it would also be appropriate to provide him all retired pay and allowances due from 1 April 2003 that he was previously denied under the barring statute.
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 records of the individual concerned be corrected by:
showing the applicant's military retired pay account was established by the Army with 22 years, 7 months, and 6 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 April 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) AR20130001846
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