IN THE CASE OF:
BOARD DATE: 7 May 2015
DOCKET NUMBER: AR20140013346
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, relief from the 6-year barring statute and payment of his full retired pay effective the date he was placed on the Retired List (31 July 2003).
2. The applicant states he retired from the U.S. Army Reserve (USAR) on 31 July 2003; and he received retirement pay beginning in 2014; however, he only received 6 years of back pay.
3. The applicant provides:
* a letter
* an email
* a Summary of 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 born on 31 July 1943.
3. Having prior enlisted and commissioned service in the U.S. Marine Corps Reserve, the applicant retired from the USAR in the rank/grade of lieutenant colonel (LTC)/O-5 on 24 December 1992.
4. On 31 July 2003, he reached age 60 and he was placed on the retired list in the rank/grade of LTC/O-5. His service record is void of evidence that shows he applied for retired pay at that time.
5. The applicant provides an email, issued by the Deputy Reserve Retired Pay, U.S. Army Human Resources Command, dated 24 April 2014, who states the applicant would be receiving pay on 1 May 2014 with back pay for 6 years. For payment of monies dating back to 2003, the applicant was instructed to apply to the ABCMR.
6. 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. Evidence shows the applicant reached age 60 and he was placed on the retired list in the rank/grade of LTC/O-5 on 31 July 2003. Therefore, he was entitled to start drawing retirement pay at that time.
2. It appears he was retroactively paid retired pay for a period of 6 years beginning 1 May 2014. 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 in a timely manner and to pay him for the remaining 5 years of retirement pay to which he is entitled, effective 31 July 2003.
3. One of the reasons behind the barring act is relieving the government of excessive paperwork and preventing stale, baseless claims which the government cannot substantiate. Given the applicant served over 20 years, he is certainly deserving of favorable consideration for his service to our country.
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 amending his records to show he applied for retirement pay in a timely manner and to pay him for the remaining 5 years of retirement pay to which he is entitled, effective 31 July 2003.
___________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) AR20140013346
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