IN THE CASE OF:
BOARD DATE: 6 January 2015
DOCKET NUMBER: AR20140009487
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 1 May 1999 to 1 September 2005.
2. The applicant states, in effect:
* he retired from the Florida Army National Guard (FLARNG) on 30 April 1999 by reason of voluntary early retirement
* his retired pay multiplier was incorrect; the Defense Finance and Accounting Service (DFAS) corrected his multiplier and paid him back retired pay from 1 July 2006 to 31 December 2011
* he is still due back retired pay because he retired on 30 April 1999
* the error in the calculation of his retired pay occurred on the date he retired; however, DFAS is restricted by the Barring Statute
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum from the National Guard Bureau, dated 22 January 1999
* Orders P055-019, FLARNG, dated 24 February 1999 with amendment dated 9 March 1999
* Memorandum from DFAS, dated 11 July 2012
* Memorandum from the FLARNG Active Guard Reserve (AGR) Manager, dated 12 December 2012
CONSIDERATION OF EVIDENCE:
1. He enlisted in the ARNG on 16 January 1972. 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 sergeant first class (SFC)/E-7.
2. He entered active duty on 16 January 1986 and retired on 30 April 1999 by reason of voluntary early retirement.
3. On 24 February 1999, the FLARNG published Orders P055-019 ordering his retirement from active service effective 30 April 1999 and placement on the Retired List in his retired rank/grade of SFC/E-7 on 1 May 1999. These orders show the following entries:
* Statute Authorizing Retirement: Title 10, U.S. Code, section 3914
* Voluntary retirement: 15 years, 1 month, and 18 days
* Section 1405 Service: 17 year, 3 months, and 15 days
4. In July 2012, DFAS notified the applicant about the correction of his multiplier and being paid the difference in pay from 2 September 2005 to 31 December 2011 based on the 6-year statute of limitations.
5. On 12 December 2012, the FLARNG notified him by letter that DFAS had reviewed his military retirement account and had corrected the error discussed in the preceding paragraph. He was further informed that he had to apply to this Board for any additional relief.
DISCUSSION AND CONCLUSIONS:
1. Upon the applicant's retirement, his retired pay multiplier was computed incorrectly. His retirement orders showed two entries: voluntary retirement (15 years, 1 month, and 18 days) and section 1405 (17 year, 3 months, and 15 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 17 years, 3 months, and 15 days. He was paid the difference in retired pay from 2 September 2005 to 31 December 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 April 1999. 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:
___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 the applicants military retired pay account was established by the Army with 17 years, 3 months, and 18 days of service under Title 10, U.S. Code, section 1405, at the time of his retirement on 1 May 1999 as reflected on his retirement orders and paying him 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) AR20130015379
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140009487
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