IN THE CASE OF:	  

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150000939 


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:

	a.  correction of his military records to show he earned 10,279 retirement points and

	b.  payment of $15,832.99 for funds not received in 2009.

2.  The applicant states:

	a.  He should have 10,279 retirement points and be paid for it to include back pay.  He does not believe he was credited with all his retirement points and is due back retired pay (at least 3 years) and an adjustment in his future retired pay.  He has had to prove over and over again to the U.S. Army Human Resources Command (for over 3 years now) that he is not in the Army which they claimed kept them from correcting his file.  About a year ago, they agreed he was not in the Army, but now are silent.

	b.  The Army never gave him the $15,832.99 they said they did.  The Army claimed in October 2009 they had electronically deposited $15,832.99 in his bank account.  He has been trying for over 5 years to convince the Army he never received the money.  He submitted bank statements.  It took 3 years for the Army to acknowledge they could not show they had deposited the money electronically.  Then the Army asked him to request a research of their files to determine if a manual check had been issued.  He did so three times not knowing the date of this perceived check or check number.  Finally the Army called him and stated they could not look up this check in their system and suggested he contact this Board.

	c.  He has exhausted all administrative remedies. 

3.  The applicant provides:

* letter from the Army Review Boards Agency, dated 21 November 2014
* letter from a Member of Congress, dated 26 September 2014
* DD Form 827 (Application for Arrears in Pay), dated 13 October 2014
* DD Form 139 (Pay Adjustment Authorization), dated 29 October 2014
* letter from the Defense Finance and Accounting Service (DFAS) to a Member of Congress, dated 24 July 2014
* retirement orders, dated 25 August 2011
* U.S. Army Human Resources Command Chronological Statement of Retirement Points, dated 30 October 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

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 27 November 1948.  Having prior enlisted and commissioned service in the Army National Guard (ARNG), the applicant retired on 30 November 2004 in the rank of colonel.  He was placed on the Retired List in the rank of colonel effective 1 December 2004.

3.  He was recalled to active duty from retired status on 26 November 2006.  On 30 April 2007, he was released from active duty (REFRAD) and reverted to retired status.

4.  He was again recalled to active duty from retired status on 16 August 2009.  On 14 September 2011, he was REFRAD and reverted to retired status.

5.  His chronological statement of retirement points, dated 29 September 2015, shows he earned 10,279 retirement points and completed 42 years and 10 days of qualifying service for retired pay.

6.  He provided a letter from DFAS to a Member of Congress, dated 24 July 2014, which states:

	a.  This letter pertains to the applicant's retired pay and claim for non-receipt of payment. 

	b.  The applicant's military retired pay account reflects he was retired under the retirement authorization statute Title 10, U.S. Code, section 3911.  This retirement statute is for voluntary retirement of an officer with 20 or more years of active duty service with 10 years as a commissioned officer.  Based on their records, his military retired pay is calculated on his years of service for retirement of 27 years and 20 months.

	c.  The applicant requested correction of his retirement points creditable toward retirement on his retired pay account.  Points earned toward a Reserve retirement are not used in the calculation for military retired pay under Title 10, U.S. Code, section 3911.  The Army is the only authority that can issue the applicant amended retirement orders reflecting a change in his retirement based on his Reserve qualifying points for retirement.  The applicant's concerns were determined to fall under the purview of the Department of the Army and he was instructed to contact the appropriate office.

	d.  The applicant's inquiry shows a concern regarding non-receipt of payment in the amount of $15,832.00 in October 2009.  The applicant states the Army originally claimed they had electronically transferred the above payment to his personal bank account; however, his documentation provided shows no proof that he received the payment amount.  He was directed to submit a form to that office, indicating a lost or stolen check.  In an effort to assist him, they contacted the military pay office which had no record of the applicant's form being received in that office.  It was recommended he submit a request for check inquiries.

7.  There is no evidence indicating his Reserve retirement points or retired pay were miscalculated.

8.  There is no evidence indicating he was entitled to or received $15,832.99 in 2009.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's contention that he should have 10,279 Reserve retirement points.  His chronological statement of retirement points shows he earned 10,279 retirement points.

2.  He contends he was not credited with all his retirement points and is due back retired pay and an adjustment in his future retired pay.  However, there is no evidence and he provided no evidence which shows his retired pay was miscalculated.

3.  He contends the Army never gave him $15,832.99 they said they did in 2009. 
However, there is no evidence and he provided no evidence which shows he was entitled to receive $15,832.99.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _____________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)                                         AR20150000939



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ABCMR Record of Proceedings (cont)                                         AR20150000939



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