IN THE CASE OF:
BOARD DATE: 29 October 2013
DOCKET NUMBER: AR20130004873
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 1 August 2005, the date he was placed on the Retired List.
2. The applicant states an incorrect pay multiplier was applied when he retired and he received an incorrect amount of retired pay until November 2011 when the error was discovered. He states he was issued back pay for 6 years to 1 July 2006, but he has been denied the remainder of his back pay (11 months) 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Retirement orders issued by the FLARNG on 27 October 2004 show the applicant had 22 years, 6 months, and 11 days of service under Title 10, U.S. Code, section 1405, effective 30 April 2001. Additionally, he had 23 years, 3 months, and 20 days of service for basic pay purposes.
3. On 31 July 2005, he was honorably retired at Fort Stewart, Georgia, and was placed on the Retired List in pay grade E-8 effective 1 August 2005. However, for reasons that are not readily apparent, the applicant's retired pay account was established as having 22 years, 5 months, and 27 days of service under Title 10, U.S. Code, section 1405.
4. On 3 May 2012, 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 issued back pay for the past 6 years to 7 July 2005, less Survivor Benefit Plan deductions to 1 May 2001.
5. On 12 December 2012, the FLARNG notified the applicant that an audit of retiree accounts revealed that an incorrect multiplier had been applied to his account at the time of his retirement and that he was not receiving his correct amount of retired pay. The letter provided also indicates the applicant was one of many who were notified in 2011 of an error in their military pay accounts and who 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.
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 August 2005 until 30 April 2012.
2. DFAS has issued the applicant back pay due to him from 1 July 2006 to 30 April 2012; however, he is still due back pay from 1 August 2005 to 30 June 2006, an additional 11 months.
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 23+ 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, the applicant's orders properly reflect his service which indicates the error was through no fault of the applicant. Therefore, in the interest of equity the applicant should be paid the monies that were owed him since the first day of his retirement, especially since the error was through no fault of his own. 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 22 years, 6 months, and 11 days of service under Title 10, U.S. Code, section 1405, as reflected on his retirement orders at the time of his retirement.
_______ _ 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) AR20130004873
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ABCMR Record of Proceedings (cont) AR20130004873
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