IN THE CASE OF:	

		BOARD DATE:	 12 March 2014 

		DOCKET NUMBER:  AR20130006893 


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 the issuance of retired pay from 23 March 1992, the date he was placed on the retired list.

2.  The applicant states:

* He received his 20-year letter in 1976
* The Defense Finance and Accounting Service's (DFAS) statute of limitations for retired pay should begin on the date that retirement orders are issued
* His retirement orders were issued on 31 October 2012
* DFAS erroneously set his 60th birthday (23 March 1992) as the accrual date of his claim for retired pay
* DFAS concluded he was only entitled to receive pay for the 6-year period prior to his request for retired pay
* He should receive retired pay from 23 March 1992, the date he became eligible to receive retired pay

3.  The applicant provides:

* Self-authored letter to DFAS (Undated)
* Brief of Authorities Regarding Statute of Limitations against Claim for Retired Pay (Undated)
* U.S. Army Human Resources Command (AHRC) Retirement Orders, dated 31 October 2012
* DFAS Letter to Representative in Congress, dated 9 October 2012
* 
AHRC letter, dated 31 October 2012
* Summary of Retired Pay Account
* DFAS Retired and Annuitant Pay Letter, dated 8 February 2013
* U.S. Army Reserve Personnel Center (ARPERCEN) Discharge Orders, dated 23 April 1984

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.  The applicant's Army Military Human Resources Record (AMHRR) is not available for review.  Information contained in this Record of Proceedings was provided by the applicant.

3.  The applicant was born on 23 March 1932.  He accepted a commission as a Reserve commissioned officer on 1 June 1954.  According to him, he received his 20-Year Letter in 1976.

4.  On 23 April 1984, Orders Number D-04-902192 were published honorably discharging the applicant from the U.S. Army Reserve (Ready), effective 30 June 1984, in the rank of colonel.

5.  On 9 October 2012, DFAS replied to an inquiry from the applicant's Representative in Congress regarding the applicant's request for retired pay.  DFAS stated that a review of their records indicated the applicant was not on the rolls of military retired pay, nor did they have retirement orders for him.  DFAS stated that without retirement orders from the branch of service, they were unable to establish a military retired pay account.  DFAS forwarded the inquiry to AHRC for response.


6.  On 31 October 2012, AHRC notified the applicant that his application for retired pay had been approved.  Attached to the notification was a Certificate of Retirement and Orders C10-291680, dated 31 October 2012, placing him on the Retired List, effective 23 March 1992 (his 60th birthday).

7.  In a letter dated 8 February 2013, DFAS welcomed the applicant to the retired rolls of the Army and informed him that a retired pay account had been established.

8.  The applicant provides a copy of his letter and "Brief of Authorities Regarding Statute of Limitations against Claim for Retired Pay" he submitted to DFAS.  In his brief he states:

	a.  It is the contention of DFAS that the statute of limitations for retired pay began to run on his 60th birthday.

	b.  It is his contention that his claim for retired pay first accrued upon the issuance of his Retirement Orders dated 31 October 2012 and, therefore, retired pay is due and owing from his 60th birthday.

	c.  Due to an error on the part of ARPERCEN, he was issued orders discharging him from the U.S. Army Reserve (Ready).

	d.  On or about August 2012 inquiries were made through appropriate channels and the discharge orders dated 1984 were rescinded, and the retirement orders were issued.

	e.  A claim for retired pay was then submitted to DFAS in a timely manner and DFAS has determined that the 6-year statute of limitations began to run on his 60th birthday and, therefore, he is entitled to retired pay for the past 6 years only.

	f.  He had no claim for retired pay until retirement orders were issued on 31 October 2012.

	g.  Inasmuch as the Army discharged him on 23 April 1984, his status as a military member ceased and his entitlement was canceled.

	h.  Retirement orders are issued after a determination that a Reserve service member is eligible for retired pay.

	i.  The member must have 20 creditable years of service and be at least 60 years old.

	j.  DFAS would not cut a check to a member if he sent in only a 20-Year Letter and his birth certificate.

	k.  Once it was determined that he had been discharged he was not entitled to retired pay in the eyes of the Army because he had no status to claim retired pay.

	l.  Once he was "cleared" of impediments (by rescinding the discharge orders) he was deemed eligible.

	m.  His discharge orders became the "ticket" to getting retired pay; therefore, his retirement orders represented the accrual of his claim and limitations began to run on the date of the retirement orders.

9.  The applicant provided two Comptroller General (CG) decisions.

   a.  In 39 Comptroller General 20 (14 July 1959), the CG determined that the statute of limitations begins on the date of correction instead of the date of transfer to the Retired Reserve.  The case involved Naval personnel transferred under Title 10, U.S. Code, section 6332 (Conclusiveness of Transfers).  The CG stated that a claim for retirement did not accrue under the 1939 Act unless there has been an administrative determination by proper authority that the facts of the case in question are such to bring the member within the pertinent conditions of the statute for which pay is authorized.  Regarding BCMR corrections under Title 10, U.S. Code, section 1552, the CG stated a member’s status becomes fixed by the records as corrected and he becomes entitled to pay and allowances due upon application of the pay statutes to the facts of the case as shown by the corrected records.  The CG determined that the statute of limitations began when that applicant’s records were corrected by the Secretary of the Navy, not when he was transferred to the fleet reserves.  He was entitled to pay from the date of transfer, not the correction.

   b. 62 Comptroller General 227 (1 March 1983) involved an Army Reserve officer who became 60 years old in 1971 but did not file for retirement until 1977. When he filed he was told he had insufficient service for retirement.  In 1979, it was determined he was eligible for retirement but he would not be paid back pay because more than 6 years had elapsed since he turned 60.  The CG pointed out that the applicant had never received a 20-year letter in 1977 when he completed 20 years of service as required by law.  The CG recognized that the “entitlement is dependent upon approval by the service concerned of the person’s application, 

and upon such approval payment is to be made retroactively to the date of eligibility.”  The CG took the position that where a claim is dependent upon an agency determination required by statute, such determination is a condition precedent to the accrual of the claim for the purposes of the barring act.  It would consider the claim not to have accrued until the service’s determination that the person has the qualifying service for retired pay.  In that applicant’s case the final condition was not met until October 1979 when the determination was made that he had the required service.

10.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  It states:

	a.  Retired pay is granted after completion of 20 or more years of qualifying service and upon attaining age 60.  To be eligible for retired pay an individual need not have a military status at the time of application but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of qualifying service as a Reserve Component Soldier.  

	b.  It is the responsibility of each qualified individual to submit his or her application for retired pay.  The DD Form 108 is the only form on which application for this pay will be made.  Approximately 6 months prior to reaching age 60, eligible Soldiers assigned to the Retired Reserve will receive a DD Form 108 and DA Form 4240 (Data for Payment of Retired Army Personnel) from ARPERCEN.  One copy of DD Form 108 along with a completed copy of the DA Form 4240 should be forwarded to ARPERCEN.  The DD Form 108 should not be submitted earlier than 120 nor later than 90 days prior to the date retired pay is to begin.

	c.  Each Reserve Component Soldier who completes 20 qualifying years of service to be eligible for retired pay at age 60 will be notified in writing within 1 year after he or she has completed that service (20-Year Letter).  The notification will be issued to those individuals credited with 20 years of qualifying service prior to discharge or transfer to the Retired Reserve.  In those instances where qualified Soldiers have been discharged or transferred to the Retired Reserve prior to issuance of the letter of notification, ARPERCEN will issue the letter.

11.  Title 31, U.S. Code, section 3702 provides a 6-year statute of limitations on claims against the Government.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The evidence shows that the applicant was discharged from the Ready Reserve on 30 June 1984.  The available evidence shows that he had more than 20 qualifying years of service for retired pay at age 60 at the time he was discharged.  Absent from the available evidence is his 20-Year Letter indicating his eligibility for retired pay at age 60; however, he states he received it in 1976.  At that point, an administrative determination by proper authority that the facts of the case bring the member within the pertinent conditions of the statute for which pay is authorized.  In other words, it was determined in 1976 that he was eligible for retired pay at 60 years of age.

3.  The applicant was eligible for retired pay on 23 March 1992, the date that he was 60 years old, and more than 7 years after his discharge from the USAR.  It would seem that in the ensuing 7 plus years that his eligibility for retired pay would have been verified, and that ARPERCEN would have provided him the necessary forms to enable him to apply for retired pay prior to reaching age 60 in accordance with the provisions of the cited regulation, had he exercised due diligence in inquiring about his retired pay.

4.  However, the applicant has provided no reasonable explanation as to why he waited over 20 years from the date of his 60th birthday before requesting documents needed to apply for retired pay.  It appears almost incomprehensible that when he reached age 60 he would not request assistance from people who managed him and his career during his Reserve service.

5.  The applicable regulation states retired pay is granted after completion of 20 or more years of qualifying service and upon attaining age 60.  To be eligible for retired pay an individual need not have a military status at the time of application. His contention that he could not apply for retired pay because he had been discharged and he had no status is a moot point.

6.  The applicable regulation also states that it is the responsibility of each qualified individual to submit his or her application for retired pay.  Thus, the applicant must shoulder some responsibility in this matter.

7.  It appears that the 6-year statute of limitations on his claim is appropriate.

8.  In view of the foregoing, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20130006893





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ABCMR Record of Proceedings (cont)                                         AR20130006893



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