IN THE CASE OF: BOARD DATE: 27 August 2013 DOCKET NUMBER: AR20130000662 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 that he be granted relief from the 6-year barring statute and that he be authorized his full Retired Pay effective the date he was placed on the Retired List (1 September 2001). 2. The applicant states, in effect, that when he retired an incorrect pay multiplier was applied and he received an incorrect amount of retired pay until October 2011 when the error was discovered. He goes on to state that he received back pay for 6 years to 22 June 2005; but he has been denied the remainder of the back pay (58 months) due to the 6-year barring statute. 3. The applicant provides a copy of a letter from the Florida Army National Guard (FLARNG) advising him to apply to the Board, copies of his retirement orders, and a letter from the Defense Finance and Accounting Service (DFAS) advising him of the adjustment to his 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 serving in the pay grade of E-6 in the FLARNG on active duty in the Active Guard Reserve Program when retirement orders were published by the FLARNG indicating that effective 31 August 2001 he had 20 years, 10 months and 20 days of Section 1405 service. Additionally, he had 20 years and 21 days of service for voluntary retirement. 3. On 31 August 2001, he was honorably retired at Fort Stewart, Georgia and transferred to the Retired List in the pay grade of E-6 effective 1 September 2001. However, for reasons that are not readily apparent, the applicant’s retired pay account was established as 20 years and 21 days of service. 4. On 31 August 2011, DFAS notified the applicant that his retired pay had been adjusted based on the computation of his service and he was receiving back pay for the past 6 years to 22 June 2005. 5. The letter provided by the applicant from the FLARNG, dated 12 December 2012, indicates the applicant was one of many notified in 2011 that there was an error in their military pay account and that they were not receiving full relief of monies owed due to DFAS having imposed the 6-year barring statute. 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. While it is not readily apparent whether the error occurred within the FLARNG or at Fort Stewart, GA, the fact remains that the applicant’s military pay account was incorrectly reported to DFAS at the time of retirement and resulted in the applicant being underpaid from 1 September 2001 until September 2011. 2. DFAS has paid the applicant back pay due him from 22 June 2005 to 31 August 2011; however, he is still due back pay from 1 September 2001 to 21 June 2005. 3. One of the reasons behind the Barring Act is to relieve the Government of excessive paperwork and prevent stale, baseless claims which the government cannot substantiate. Given the applicant’s 20+ years of service, he is certainly deserving of favorable consideration for his service to his country. Further, documents verifying the applicant’s entitlements are readily available. 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 showing that at the time of his retirement on 1 September 2001, the applicant’s military retired pay account was established by the Army with 20 years, 10 months, and 21 days of section 1405 service as reflected on his retirement orders and that he be paid all back pay due from that date (less any back pay already disbursed to the applicant). _______ _ _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) AR20130000662 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130000662 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1