IN THE CASE OF:	   

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20130017302 


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, in effect, retroactive payment of four years of retired pay.  

2.  The applicant states:

* the Army paid him for six years of retirement pay, but he is owed payment for ten years
* he entered a buy-out program (Reserve Special Separation Pay (RSSP)) on 15 October 1994; a condition for entering the buy-out program required he submit his retirement papers
* he believes the U.S. Army lost his retirement papers and he was not paid his retirement when he reached age 60 on 19 March 2002
* he would like to receive the additional four years retirement pay that he earned, and to which he is entitled

3.  The applicant provides the following documents, arranged chronologically:

* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), issued by the U.S. Army Reserve Components Personnel and Administration Center (RCPAC), St. Louis, MO on 1 September 1983
* Orders 24-01, issued by Headquarters, 91st Division (Exercise), Sausalito, CA on 10 March 1994
* DA Form 4187 (Personnel Action) he signed on 1 October 1994, which shows he requested transfer to the Retired Reserve with Special Separation Pay
* DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 1 October 1994
* Orders 95-107-015, issued by Headquarters, U.S. Army Reserve Command (USARC), Atlanta, GA on 10 March 1995, reassigning him to the Retired Reserve
* Defense Finance and Accounting Service – Cleveland (DFAS-CL) Form 1900/10 (RSSP Earnings Statement)
* a letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 22 February 2012
* Orders P02-942148, issued by HRC on 22 February 2012 
* Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* a letter from HRC, dated 24 February 2012, addressed to a Member of Congress
* DFAS-CL Form 7220/148 (Retiree Account Statement)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 born on 19 March 1942.  

3.  On 30 March 1981, following prior enlisted service in the U.S. Navy and U.S. Naval Reserve, he was appointed as a Reserve commissioned officer of the Army.

4.  He provided the following documents:

	a.  His 20-Year Letter, dated 1 September 1983, which shows he was notified that having completed the required years of service, he would be eligible for retired pay upon application at age 60 under the provisions of Chapter 67, Title 10, U.S. Code.

   b.  Orders 24-01, issued by Headquarters, 91st Division (Exercise), Sausalito, CA on 10 March 1994, which show he was transferred to another Reserve unit due to reorganization, effective 14 March 1994.
   
   c.  A DA Form 4187 he signed on 1 October 1994, which shows he elected to transfer to the Retired Reserve with special separation pay.  
   
   d.  Orders 95-107-015, issued by Headquarters, USARC on 10 March 1995, which show he was reassigned to the Retired Reserve, effective 31 October 1994. 

   e.  An RSSP Earnings Statement for payment period 1 November 1995 to 31 October 1996, which shows he was paid $2,892.25 RSSP for this period.  This statement shows he had been paid $9,253.44 to date and his final annual payment date was 31 October 1998.  

5.  On 19 March 2002, he reached age 60.  His service record is void of evidence that shows he applied for retired pay at that time.

6.  He also provided the following documents:

   a.  A letter from the Chief, Retired Pay Branch, HRC, dated 22 February 2012, which informed him that his application for retired pay under Title 10, USC, section 12731 had been approved.

   b.  Orders P02-942148, issued by HRC on 22 February 2012, which show he was retired and placed on the retired list, in the rank captain, on 19 March 2002.

   c.  His Chronological Statement of Retirement Points, dated 22 February 2012, which shows he was credited with 29 years, 7 months, and 2 days of qualifying service for retired pay at age 60.
   
   d.  A letter, dated 24 February 2012, from the Director, Army Transition Office, HRC, which informed a Member of Congress:
   
		(1)  The applicant's retirement application was processed and he had been credited with 29 years, 7 months, and 2 days of qualifying service and a total of 2,832 points, as shown on his Chronological Statement of Retirement Points.  The congressman was informed that this information was forwarded to DFAS for payment processing.  

		(2)  The applicant's entitlement to receive retroactive pay back to his 60th date of birth was governed by the statute of limitations.  Under USC 31, section 3702, effective 2 July 1972, the statute of limitations requires that a claim be filed within 6 years of the date it first accrued.  

		(3)  The applicant was entitled to start drawing retirement pay on 19 March 2002.  The statute of limitations in his case went into effect on 19 March 2008; therefore, his retirement benefits can only be retroactive 6 years from the date DFAS received his information.  

		(4)  If the applicant feels an injustice has been served, he could file a petition to the ABCMR to review his case.

DISCUSSION AND CONCLUSIONS:

1.  After completing 20 years of qualifying service for retired pay at age 60, the applicant was issued a 20-Year Letter on 1 September 1983.

2.  On 17 October 1994, he elected to be transferred to the Retired Reserve with special separation pay.  As a result, orders were published that reassigned him to the Retired Reserve, effective 31 October 1994.

3.  The applicant reached age 60 on 19 March 2002.  Therefore, he was entitled to start drawing retirement pay at that time.

4.  On an unknown date in 2012, he applied for retired pay.  His application was approved and he was retired and placed on the retired list effective 19 March 2002.  He was retroactively paid retired pay for a period of six years for the period 23 February 2006 to 22 February 2012.  

5.  The applicant's contentions that the U.S. Army lost his retirement papers and he was not paid his retirement pay when he reached age 60 on 19 March 2002 are acknowledged.  Although his service record is void of evidence to support his claim, it would be appropriate as a matter of equity to amend his records to show he applied for retirement pay within a timely manner and to pay him for the remaining four years of retirement pay to which he is entitled, 19 March 2002 through 22 February 2006.







	
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.  correcting his records to show he applied for retired pay on 18 February 2002 (prior to him reaching age 60) and showing his application was processed and approved within a timely manner;

	b.  amending Orders P02-942148, dated 22 February 2012, to show they were issued on 18 March 2002; and 

	c.  retroactively paying him retirement pay from 19 March 2002 to 22 February 2006.




      _______ _   _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)                                         AR20130017302





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130017302



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1