IN THE CASE OF: BOARD DATE: 30 May 2013 DOCKET NUMBER: AR20120019537 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 entitlement to his adjusted retired pay from 30 September 2002. 2. The applicant states on 26 July 2011 he was notified by the Florida Army National Guard (FLARNG) that there was an error in his retired pay. His retired pay was based on 20 years and 29 days of service but it should have been based on 20 years, 4 months, and 28 days of service. On 1 August 2011, he applied for an adjustment to his retirement pay. The Defense Finance and Accounting Service (DFAS) adjusted his retired pay and his Survivor Benefit Plan (SBP) payment but he only received the monies he was owed for the difference in his retired pay for a 6 year period and was told there was no limitation on debt [owed to the Government]. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), orders, two letters, and an Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP). 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 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. Having had prior active service, the applicant's records show he enlisted in the FLARNG on 21 June 1984. On 15 September 1985, he entered active duty in an Active Guard Reserve (AGR) status. On 1 August 2000, he was promoted to the rank/grade of first sergeant (1SG)/E-8. 3. Orders P136-011, dated 16 May 2002, issued by the FLARNG, St Augustine, FL, released him from active duty effective 30 September 2002 and placed him on the Retired List in the rank of 1SG on 1 October 2002. 4. On 30 September 2002, he was honorably retired and transferred to the U.S. Army Reserve Control Group (Retired). The DD Form 214 he was issued shows he completed 17 years and 16 days of creditable active service during this period of service and had a total of 20 years and 29 days of creditable active service. 5. The applicant provides a letter, dated 31 August 2012, to the applicant's Representative in Congress from DFAS. In the letter, a DFAS official stated: a. On 22 December 2011, based on notification from the FLARNG, the applicant's service for percent multiplier was corrected to 20 years, 4 months, and 28 days instead of the 20 years and 29 days previously reflected on his retired pay account. This increased his monthly gross retired pay from $2,383.00 to $2,423.00. On 1 February 2012, he was paid a gross amount of $2,782.93, less taxes and an SBP premium. Due to the Barring Act of 1940, they could only pay him a retroactive payment for 6 years. As they received initial notification on 1 August 2011, he was paid a retroactive payment on1 February 2012 for his entitlement from 2 August 2005 through 31 December 2011. b. The DFAS official further stated the change in his retired pay increased his SBP premium and an audit showed his premiums had been underpaid by a total of $254.30. The SBP amount of $254.30 was deducted from his credit issued on 1 February 2012. The SBP amount represents the timeframe 1 October 2002 through 31 December 2011 as there was no statute of limitations in regard to debts owed the Government. With this letter, DFAS attached two worksheets showing the calculations. 6. Title 31, U.S. Code, section 3702 is the 6-year barring statute for payment of claims by the Government. One of the principle purposes of the statute is to relieve the Government of over-burdensome recordkeeping requirements. DISCUSSION AND CONCLUSIONS: 1. While it is not readily apparent whether the error occurred with the FLARNG or the transition center, the fact remains that the applicant's military pay account was incorrectly reported to DFAS at the time of his retirement and resulted in the applicant being underpaid from 1 October 2002 until December 2011. 2. DFAS has paid the applicant back pay due him from August 2005 to December 2011; however, he is still due back pay from October 2002 to July 2005. 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. 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 and State ARNG records of the individual concerned be corrected by showing the applicant’s military retired pay account was established by the Army with 20 years, 4 months, and 28 days of service under Title 10, U.S. Code, section 1405, as reflected on his retirement orders at the time of his retirement on 1 October 2002 and paying him any pay due from that date (less any back pay already disbursed). _______ _ 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) AR20120019537 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120019537 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1