PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 March 2001                   
	DOCKET NUMBER:   AR2000046356

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his military records be corrected to show he applied for retired pay upon reaching age 60.  

3.  The applicant states that he never applied for retired pay but he needs it now to assist him since he retired from his occupation.

4.  The applicant’s military records show that he was born on 22 March 1913.  He entered the Army on 11 June 1934.  After having had active service, he entered the U. S. Army Reserve on 1 July 1949.  There is no notification of eligibility for retired pay at age 60 (20-year letter) available.  However, a statement of service for retired pay purposes was prepared on 4 February 1957 at the applicant’s request which showed that he had 20 years and 20 days of qualifying service as of 30 June 1956.  On 1 May 1966, he was transferred to the Retired Reserve.  On 22 March 1973, he turned age 60.

5.  In the processing of this case, an advisory opinion was obtained from the Transition and Separations Branch, Army Reserve Personnel Command        (AR-PERSCOM).  The advisory opinion noted that a review of the applicant’s records show he is credited with 30 years, 10 months and 23 days of qualifying service for pay but their office has no records which would indicate he ever  made application for his retired pay at age 60.  Around September 2000,         AR-PERSCOM sent him an Application for Retired Pay at Age 60, DD Form  108, packet and will show that he retired with an effective date of 1973.           AR-PERSCOM recommended that the applicant’s request for retired pay and benefits be granted and that he be paid all monies due him.

6.  A copy of the advisory opinion was provided to the applicant.  He concurred in the advisory opinion.

7.  Title 32, U. S. Code, section 3702 prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. 

8.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

CONCLUSIONS:  

1.  The evidence of record shows that the applicant honorably served the Army for over 20 years upon reaching age 60 on 22 March 1973.  However, there is no evidence to show that he applied for retired pay.  The applicant also agrees that he never applied for retired pay because he did not need it.

2.  The Board concludes that while the evidence shows that the applicant is entitled to retired pay, the doctrine of laches should prevent the payment of back retired pay beyond the 6-year statute of limitations.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant became eligible for retired pay upon reaching age 60 on 22 March 1973 and applied for retired pay on the date of his application to the Board, 7 August 2000.

2.  That the applicant be paid all due back retired pay as a result of this correction within the guidelines of the Barring Statute.

3.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP).  The applicant is advised to contact his nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___jh___  __dph___  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000046356	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.04	
2.		
3.		
4.		
5.		
6.