IN THE CASE OF:	  

		BOARD DATE:	    15 October 2013

		DOCKET NUMBER:  AR20130002680 


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 payment of all retired back pay effective from the date of his eligibility for retired pay.

2.  The applicant states he retired from reserve duty in 1988 (sic) and became eligible for retired pay when he turned age 60 on 28 March 1998.

   a.  He requested retirement, but it was denied.  He believes it was due to the fact that he served in multiple branches of the U.S. Armed Forces and a lack of communication between them concerning his creditable military service.

   b.  In October 2012, with the assistance of his representative in Congress, he began receiving retired pay.  However, due to the law, he only received retired back pay for six (6) of the 14 years he has been eligible for retired pay.

3.  The applicant provides his retirement orders and retirement certificate.

CONSIDERATION OF EVIDENCE:

1.  A review of the applicant's military personnel records show his date of birth is 28 March 1938 and that he had prior honorable enlisted service, as follows:

* U.S. Navy Reserve:  9 August 1955 through 4 May 1956
* U.S. Navy:  5 May 1956 through 13 April 1961
* U.S. Navy Reserve:  14 April 1961 through 8 August 1966
* Army National Guard:  9 August 1966 through 10 March 1973
2.  After a break in service, the applicant enlisted in the U.S. Army Reserve (USAR) on 23 October 1974.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 February 1979.

3.  Headquarters, 79th USAR Command, Willow Grove, PA, letter, dated 
8 October 1980, subject:  Non-Selection for Qualitative Retention, shows the applicant was notified that he was considered for retention, but was not selected, and that he would be discharged not later than 8 December 1980.  It also shows he was eligible for transfer to the Retired Reserve and, due to benefits to be derived from such assignment, he was advised to do so.

4.  A review of the applicant's military personnel records failed to reveal a copy of a "Twenty Year Letter" notifying him of his eligibility for retired pay at age 60 in March 1998.

5.  Headquarters, First U.S. Army, Fort George G. Meade, MD, Orders 235-7, dated 4 December 1980, assigned the applicant to the USAR Control Group (Retired Reserve), St. Louis, MO, effective 8 December 1980.

6.  U.S. Army Human Resources Command (HRC), Fort Knox, KY, memorandum, dated 8 May 2012, shows that the Director, Army Transition Office, informed the Honorable Jim G---, Representative in Congress, that a review of the applicant's records verified that he earned a minimum of 20 years qualifying service.  An application for retirement was also provided in order for the applicant to apply for retired pay.

7.  HRC, Fort Knox, KY, Orders P06-945563, dated 14 June 2012, placed the applicant on the retired list, in the retired grade of SSG (E-6), effective 28 March 1998.

8.  HRC, Fort Knox, KY, memorandum, dated 14 June 2012, shows the Chief, Retired Pay Branch, notified the applicant that his application for retired pay was approved.  It also shows the Defense Finance and Accounting Service (DFAS), Retired Pay Operations Cleveland Center, would notify him in writing after he received his first payment.

9.  On 19 March 2013, an official at DFAS, Retired and Annuity Pay, Cleveland, OH, confirmed that the applicant's retired pay account was established in September 2012 and a retroactive payment was issued for retired back pay to 
8 June 2006.  Since the applicant's DD Form 108 (Application for Retired Pay Benefits) was filed on 7 June 2012, his retroactive retired pay is subject to the 
6-year barring statute.

10.  Title 31, U.S. Code, 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 evidence of record shows the applicant was notified of his eligibility to transfer to the Retired Reserve and that he was advised to do so.  The evidence of record also shows that he was assigned to the USAR Control Group (Retired Reserve) effective 8 December 1980.

2.  There is no evidence that the applicant was notified to apply for retired pay at age 60 (March 1998) or that he submitted a timely application for retired pay.

3.  On 8 May 2012, in response to a Congressional inquiry, Army officials verified the applicant's qualifying service for retired pay at age 60 and the applicant then took timely action to apply for retired pay.

4.  The evidence shows DFAS established 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 (i.e., from 
8 June 2006) instead of for the entire period of his eligibility for retired pay
(i.e., from 28 March 1998).

5.  It's not clear why it took the U.S. Army and the applicant more than 14 years to take action to verify the applicant's entitlement to retired pay.  Nonetheless, the evidence of record shows the applicant was eligible to receive retired pay effective 28 March 1998.

6.  It appears the error in the applicant's retired pay was a result of administrative oversight by U.S. Army personnel and not solely 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 application for retired pay was made known to DFAS on 28 March 1998.  Further, based on this records correction, it would also be appropriate to provide him all retired pay and allowances due from 28 March 1998 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 that the evidence presented was 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 he was notified in a timely manner that he was eligible for retired pay at age 60, that he applied for retired pay in a timely manner to be effective March 1998, and paying him all retired pay and allowances due from 28 March 1998 that was previously denied under the barring statute.




      __________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)                                         AR20130002680



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ABCMR Record of Proceedings (cont)                                         AR20130002680



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