IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130015379 


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 Barring Statute.  In effect, he requests payment of arrears in retired pay from 30 June 2004 to 12 October 2005. 

2.  The applicant states:

* he retired from the Florida Army National Guard (FLARNG) on 30 June 2004 by reason of completion of required active service
* his retired pay multiplier was incorrect; the Defense Finance and Accounting Service (DFAS) corrected his multiplier and paid him back retired pay from 13 October 2005 to 31 August 2011
* he is still due 15 months worth of back retired pay because he retired on 30 June 2004
* the error in the calculation of his retired pay occurred on the date he retired; however, DFAS is restricted by the Barring Statute
* he has called DFAS multiple times and tried to get a letter from them showing the adjustment of his retired pay, to no avail

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* memorandum from the FLARNG Active Guard Reserve (AGR) Manager
* Orders P100-002, FLARNG, dated 9 April 2004, and amendment
* DA Form 2339 (Application for Voluntary Retirement) 


CONSIDERATION OF EVIDENCE:

1.  He enlisted in the ARNG on 7 February 1976.  He served through multiple extensions in the ARNG in a variety of inactive and active (Title 32 and Title 10) assignments and he attained the rank/grade of master sergeant (MSG)/E-8.

2.  He entered active duty on 1 July 1984 and he was honorably released from active duty on 19 February 1991.  He reentered active duty on 11 July 1991 and he was again honorably released from active duty on 2 January 2002. 

3.  He again entered active duty on 3 January 2002 and he was honorably released from active duty on 2 January 2003.  He reentered active duty on 3 January 2003 and he retired on 30 June 2004 by reason of having sufficient service for retirement.  

4.  In connection with his retirement, a DA Form 2339 was submitted.  This form credited him with 20 years, 7 months, and 22 days of active service and 1 year, 4 months, and 8 days of retirement points for a total of 21 years and 11 months of active service under Title 10, U.S. Code, section 1405.

5.  On 9 April 2004, the FLARNG published Orders P100-002 ordering his retirement from active service effective 30 June 2004 and placement on the Retired List in his retired rank/grade of MSG/E-8 on 1 July 2004.  These orders show the following entries:

* Statute Authorizing Retirement:  Title 10, U.S. Code, section 3914
* Voluntary retirement:  20 years, 7 months, and 22 days
* Section 1405 Service:  21 year, 11 months, and 0 days

6.  On 19 July 2011, the FLARNG notified him by letter that a review of his retirement account reflected an error in his monthly retired pay.  The review indicated the multiplier in his retired pay account was incorrect.  His retirement orders showed two entries:  voluntary retirement and section 1405.  Section 1405 is a higher number because it includes all of his active duty time plus inactive duty points and membership points he earned during his career.  The voluntary retirement included active duty only.  His multiplier was erroneously based on the voluntary retirement instead of the section 1405 retirement.  As such, the error reduced his retired pay.

7.  In 2011, DFAS corrected his multiplier and paid him the difference in pay from 1 April 2005 to 31 August 2011 based on the 6-year statute of limitations.


8.  Title 10, U.S. Code, section 1405 (Years of Service), states:

	a.  In general, for the purposes of the computation of the years of service of a member of the Armed Forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding (1) his or her years of active service; (2) the years of service, not included in clause (1), with which he or she was entitled to be credited on 31 May 1958, in computing his basic pay; and (3) the years of service, not included in clause (1) or (2), with which he or she would be entitled to be credited under section 12733 of this title if he or she were entitled to retired pay under section 12731 of this title.

	b.  In determining a member's years of service under subsection (a), each full month of service that is in addition to the number of full years of service creditable to the member shall be credited as 1/12 of a year and any remaining fractional part of a month shall be disregarded.

DISCUSSION AND CONCLUSIONS:

1.  Upon the applicant's retirement, his retired pay multiplier was incorrect.  His retirement orders showed two entries:  voluntary retirement (20 years, 7 months, and 22 days) and section 1405 (21 year, 11 months, and 0 days).  Section 1405 is a higher number because it includes all of his active duty time plus inactive duty points and membership points he earned during his career.  The voluntary retirement included active duty only.  His multiplier was erroneously based on the voluntary retirement instead of the section 1405 retirement.  This error reduced his retired pay.

2.  When the FLARNG reviewed his records and DFAS audited his retired pay records, it was determined that the error was not due to the applicant's fault and, as such, his multiplier was corrected based on completion of 21 years, 11 months, and 0 days.  He was paid the difference in retired pay from 1 April 2005 (not 13 October) to 31 August 2011, a maximum of 6 years, as there is no authority for DFAS to pay beyond the 6-year limitation.

3.  This error clearly denied the applicant the correct retired pay from the date of retirement, 30 June 2004.  As such, he is entitled to correction of his records to show he timely filed his claim for correction of his retired pay multiplier and payment of any retired pay due as a result of this correction.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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, 11 months and 22 days of service under Title 10, U.S. Code, section 1405, at the time of his retirement on 1 July 2004 as reflected on his retirement orders and paying him all back pay due from that date (less any back pay already disbursed).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying him retroactive retired pay from 1 July 2004 to 12 October 2005.



      _______ _   _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)                                         AR20130015379





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ABCMR Record of Proceedings (cont)                                         AR20130015379



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