IN THE CASE OF:
BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20130013841
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 in full of his Retired Pay entitlements effective the date he was placed on the Retired List (1 January 2001).
2. The applicant states, in effect, when he retired an incorrect pay multiplier was applied and he received an incorrect amount of retired pay until October 2011, when the error was discovered. He goes on to state he was paid back pay for
6 years to 1 April 2006 but he has been denied the remainder of his back pay
(75 months) due to the 6-year barring statute.
3. The applicant provides:
* a letter from the Florida Army National Guard (FLARNG) advising him to apply to the Board
* a copy of his retirement orders
* a letter from the Defense Finance and Accounting Service (DFAS) advising him of the adjustment to his Retired Pay Account
CONSIDERATION OF EVIDENCE:
1. The applicant was serving in the pay grade of E-8 in the FLARNG on active duty in the Active Guard Reserve (AGR) Program when retirement orders were published by the FLARNG indicating that effective 31 December 2000 he had
21 years, 6 months and 9 days of Section 1405 service. Additionally, he had
20 years, 5 months and 26 days of service for voluntary retirement.
2. On 31 December 2000, he was retired at Fort Stewart, GA and he was transferred to the Retired List in the pay grade of E-8 effective 1 January 2001. However, for reasons not readily apparent, the applicant's retired pay account was established as having 20 years, 5 months, and 26 days of service.
3. On 28 November 2011, DFAS notified the applicant that based on the change of his 1405 service his retired pay had been changed and that he was being paid back pay for the past 6 years to 1 April 2005, less Survivor Benefit Plan (SBP) deductions to 1 January 2001.
4. The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates the applicant was one of many notified in 2011 that there was an error in their military pay account and that they were not receiving full relief of monies owed due to DFAS imposing the 6-year barring statute.
5. 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 at Fort Stewart, the fact remains the applicant's military pay account was incorrectly reported to DFAS at the time of his retirement that resulted in him being underpaid from 1 January 2001 until October 2011.
2. DFAS has paid the applicant back pay due him from 1 April 2005 to
31 October 2011; however, he is still due back pay from 1 January 2001 to
31 March 2005.
3. One of the reasons behind the Barring Act is to relieve the Government of excessive paperwork and to prevent stale, baseless claims that the government cannot substantiate. Given the applicant's over 21 years of service for pay, 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 also noted that while DFAS imposed the Barring Act in his case, it charged the applicant with SBP costs retroactive back to the date of his retirement. In the interest of equity, if the government is going to take 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.
5. In view of the foregoing, the applicant's record should be corrected as recommended below.
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:
a. showing that at the time of his retirement on 1 January 2001, the applicant's military retired pay account was established by the Army with
21 years, 6 months, and 9 days of 1405 service as reflected on his retirement orders, and
b. paying him all back pay due him from 1 January 2001 (less any back pay already disbursed to the applicant).
_______ _ 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) AR20130013841
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ABCMR Record of Proceedings (cont) AR20130013841
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