MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           30 July 2002                  
	DOCKET NUMBER:   AR2001065138

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

	Mr. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas Lanyi		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That the effective date of the recomputation of his retired pay be adjusted to 1 November 1984.

APPLICANT STATES:  Immediately following his retirement, he contested his retired pay computation, which he contends constitutes a request for recomputation of his retired pay for the purpose of Public Law 98-525.  As such, he should not be limited to six years of back pay under the Barring Act.

In support of his request the applicant submits documents which show that he was retired in pay grade E-9 for years of service on 31 December 1960; that he was recalled to active duty on 1 August 1966 and was returned to the retired list on 30 June 1970; that on 6 October 1970 the Finance Center, Indianapolis, Indiana, responded to a letter he sent that organization, dated 20 September 1970.  In that response the Finance Center explained how the applicant’s retired pay was calculated.  Part of that explanation was that his retired pay was based on pay rates effective, 1 July 1969 since he had not served for two years under the new pay rates that were effective 1 January 1970.  The applicant also submits a letter he sent to the Defense Finance and Accounting Service (DFAS), dated 6 February 2001, in which he requests that his retired pay be recalculated based on PL 98-525 dated 19 October 1984, and that he be given the difference in pay, plus interest, since the date of that law.  On 13 August 2001, the DFAS responded to the applicant stating that his retired pay was correctly calculated in accordance with the laws in effect at the time of his retirement, and he only became eligible for the higher pay rate upon enactment of PL 98-525 on 19 October 1984.  The DFAS continued that it had recalculated the applicant’s retired pay in accordance with PL 98-525, but the Barring Act (31 U.S.C., 3702) precluded them from giving him the difference in pay between the date the law was enacted to six years prior to 6 February 2001, the date he requested the recalculation.  The Barring Act limits monetary claims against the Government over 6 years old.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 16 September 1939, was promoted to staff sergeant, and served continuously until 28 February 1944.  He enlisted as a staff sergeant on 25 May 1944, served continuously through reenlistments, and was retired in pay grade E-9 on 31 December 1960.  He was recalled to active duty on 1 August 1966 and was returned to the retired list on 30 June 1970.

Title 31 U.S.C., Section 3702A, states that a claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative.  The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues.

Title 10, U.S.C., Section 1402, was amended by Public Law 98-525 on 19 October 1984.  That amendment provided for the recomputation of retired pay under the rates of basic pay in effect at the time of a soldier’s release from active duty when the soldier (a) was voluntarily called or ordered to active duty during the period beginning on 1 October 1963, and ending on 30 September 1971; (b) was at the time of such call or order entitled to retired pay; (c) served on such active duty for a continuous period of at least 2 years; and (d) was released from such active duty before 1 October 1973.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The issue to be decided by the Board is whether it will accept the applicant’s request for clarification of his retired pay calculation in 1970 as a request for recalculation of pay under PL 98-525 (19 October 1984).  In this regard, a request for clarification of pay that was submitted 14 years prior to the law which allowed for the recalculation of retired pay cannot reasonably be construed as a request for recalculation of retired pay under the yet to be passed statute.  

2.  The Army could only recompute the retired pay of those soldiers who submitted requests, and were limited by the Barring Act to paying soldiers 6 years arrears in pay (from the date of the request).  There is no error or injustice in that scenario.  All soldiers who were affected by this law were held to these conditions.

3.  Since there is no error or injustice in the actions taken by the Army, and the applicant’s 1970 pay inquiry is not accepted as a request for recalculation under PL 98-525, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__kah___  ___aao___  ___tl ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001065138	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020730	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.