BOARD DATE: 2 May 2013
DOCKET NUMBER: AR20130002812
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 December 1999).
2. The applicant states an incorrect pay multiplier was applied when he retired and he received an incorrect amount of retired pay until 31 August 2011 when the error was discovered. He states he was paid back pay for 6 years to 30 September 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 to the Board, a letter from the Florida Army National Guard (FLARNG) advising him to apply to this Board for his back pay, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his DD Form 214 for prior service in the U.S. Air Force.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the U.S. Air Force on 2 May 1966. He was honorably released from active duty on 28 April 1970 and he was transferred to the Air Force Reserve. He completed 3 years, 11 months, and 28 days of active service.
2. On 8 August 1976, he enlisted in the FLARNG and continued to serve through a series of continuous reenlistments. He entered active duty in the Active Guard Reserve Program on 1 February 1984. He was honorably retired on 30 November 1999 at Fort Stewart, Georgia, and he was placed on the Retired List in pay grade E-7 effective 1 December 1999.
3. The orders issued at the time of his retirement show he had 21 years, 4 months, and 15 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 20 years, 1 month, and 16 days of service under Title 10, U.S. Code, section 1405. Additionally, he had 29 years, 3 months, and 23 days of service for basic pay purposes.
4. 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.
5. Information received from DFAS confirms the applicant's retired pay account was originally established by the Army with 20 years, 1 month, and 16 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 21 years, 4 months, and 15 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.
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 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 December 1999 until July 2011.
2. DFAS has paid the applicant back pay due him from 30 September 2005 to 31 August 2011; however, he is still due back pay from 31 December 1999 to 31 August 2005, an additional 6 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 29+ 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 15 days of service under Title 10, U.S. Code, section 1405, at the time of his retirement on 1 December 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) AR20130002812
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ABCMR Record of Proceedings (cont) AR20130002812
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