BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150013585 BOARD VOTE: ____x_____ ___x____ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150013585 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 his application for retired pay was received on 11 June 2007 and paying him any retroactive retired pay he is due as a result of this correction. __________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. BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150013585 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 correction of his military records to allow receipt of retired pay lost because of the 6 year barring statute. 2. The applicant states he has exhausted all administrative remedies to correct the error made when establishing the beginning date for computing the amount of retroactive retired pay for the 7-month period beginning 11 June 2007 (the date he became eligible for retired pay) through 9 January 2008. 3. The applicant provides: * Federal Express air bill, dated 10 June 2013 * DD Form 2656 (Data for Payment of Retired Personnel), signed by the applicant on 1 June 2013 * DD Form 108 (Application for Retired Pay Benefits), dated 1 June 2013 * ARPC Form 249-E (Chronological Statement of Retirement Points), dated 8 June 2013 * Bank of America direct deposit statement * DFAS Account Statement, dated 20140708 * DFAS Summary of 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. On 26 March 1994, the applicant, then a U.S. Army Reserve (USAR) major, was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter),. 3. Effective 1 December 2006, he was transferred to the Retired Reserve as a colonel. 4. U.S. Army Human Resources Command (HRC) Orders C03-491804, dated 11 March 2014, placed him on the Retired List as a colonel effective 11 June 2007, his 60th birthday. 5. Errors in the calculation of the total number of his retirement points and the status of his dependent(s) appear to have led to delays in processing his application for retired pay, which is dated 1 June 2013. His 8 June 2013 ARPC Form 249-E (Chronological Statement of Retired Points) shows a total of 3,297 points and that dated 8 March 2014 shows 3,703. 6. The documents submitted with the application show that in July 2014, DFAS provided a supplemental payment of retired pay in the amount of $95,796. 7. During the processing of this case an advisory opinion was obtained from HRC. The Chief, Reserve Component Retirements (RCR) Branch, recommended the applicant's request be denied because his request for retirement pay was not received until 13 June 2013 and had to be returned to him for missing documents. The RCR Branch did not receive the completed request until 15 January 2014. 8. The advisory opinion was forwarded to the applicant for his information and possible response. He essentially agreed that his request was received on 13 June 2013, but pointed out that the Federal Express air bill, dated 10 June 2013, shows that he shipped the missing documents on that date. Nevertheless, the RCR Branch did nothing with his request until January 2014. REFERENCES: Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual retroactive 6 years from the date of approval of the claim. Attacks on the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus United States, the court held that a Board for Correction of Military Records (BCMR) is not bound by the barring act, that a BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. DISCUSSION: 1. The applicant requests that he be authorized retroactive pay for the period between 11 June 2007 and 8 January 2008. 2. That period of time really represents a retroactive retired pay period created by DFAS's determination that the barring statute's 6 year period commenced in January 2014 when DFAS did the calculation, not June 2013 when the applicant applied for retired pay. 3. The Chief, (RCR) Branch, recommended the applicant's request be denied because his request for retirement pay was not received until 13 June 2013 and had to be returned to him for missing documents. The RCR Branch did not receive the completed request until 15 January 2014. 4. The available evidence does not clearly show why the applicant delayed applying for retired pay until approximately 6 years after he had become eligible for this pay upon reaching his 60th birthday. The evidence clearly shows he was eligible for retired pay upon reaching his 60th birthday, and the only barrier to receipt of retired pay for the period 11 June 2007 and 8 January 2008 is the barring statute. The Board may recommend correction of the record to show he submitted his application for retired pay in a timely manner. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013585 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013585 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2