IN THE CASE OF:
BOARD DATE: 1 August 2013
DOCKET NUMBER: AR20130011399
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 her full retired pay entitlements effective 1 August 2001, the date she was placed on the Retired List.
2. The applicant states, in effect, an incorrect pay multiplier was applied when she retired and she received an incorrect amount of retired pay until October 2011 when the error was discovered. She was paid back pay for 6 years to 17 August 2005, but she has been denied the remainder of her back pay (61 months) due to the 6-year barring statute.
3. The applicant provides copies of a letter from the Florida Army National Guard (FLARNG) advising her to apply to this Board, retirement orders (from Active Duty), and a letter from the Defense Finance and Accounting Service (DFAS) advising her of the adjustment to her 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. The applicant was serving on active duty in pay grade E-7 in the FLARNG Active Guard Reserve Program when retirement orders were published by the FLARNG indicating that effective 31 July 2001 she had 16 years, 2 months, and 4 days of service under Title 10, U.S. Code, section 1405. Additionally, she had 20 years and 23 days of service for basic pay purposes.
3. On 31 July 2001, she was honorably retired at Fort Stewart, Georgia, and she was placed on the Retired List in pay grade E-7 effective 1 August 2001. However, for reasons that are not readily apparent, the applicant's retired pay account was established as having 15 years, 7 months, and 24 days of service.
4. On 12 June 2012, DFAS notified the applicant that her retired pay had been changed based on the change in her service computation under Title 10, U.S. Code, section 1405, and that she was being paid back pay for the past 6 years to 17 August 2005, less Survivor Benefit Plan (SBP) deductions to 1 August 2001.
5. The letter provided by the applicant from the FLARNG, dated 12 December 2012, states the applicant was one of many notified in 2011 that there was an error in their military pay accounts and who were not receiving full relief of monies owed due to DFAS having imposed 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 U.S. 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 at Fort Stewart, the fact remains that the applicant's military pay account was incorrectly reported to DFAS at the time of her retirement and resulted in her being underpaid from 1 August 2001 until October 2011.
2. DFAS paid the applicant back pay due her back to 17 August 2005; however, she is still due back pay from 1 August 2001 to 16 August 2005.
3. One of the reasons behind the barring act is to relieve the U.S. Government of excessive paperwork and prevent stale, baseless claims which the U.S. Government cannot substantiate. Given the applicant's 20+ years of service, she is certainly deserving of favorable consideration for her service to her country. Further, documents verifying the applicant's entitlements are readily available.
4. It is also noted that while DFAS imposed the barring act in her case, DFAS also charged the applicant with SBP premium costs retroactive to the date of her retirement. In the interest of equity, if the U.S. Government is going to collect money it is owed for over 6 years, it should also pay money that it owes, especially since the error was through no fault of the individual concerned. 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 her military retired pay account was established at the time of her retirement on 1 August 2001 as having 16 years, 2 months, and 14 days of service under Title 10, U.S. Code, section 1405, as reflected on her retirement orders paying her 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) AR20130011399
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