ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  7 May 2020 DOCKET NUMBER:  AR20200002423 


APPLICANT REQUESTS:  waiver of the provisions set forth in the Barring Act of 1940 resulting in her entitlement to survivor benefits as the spouse of a Former Service Member (FSM) killed in action.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Self authored letters

.Marriage Certificate

.Social Security Card

.Selective Service System Notice of Classification

.Selective Service System Registration Certificate

.DD Form 62 (Statement of Acceptability) dated 15 December 1965

.U.S. Government Motor Vehicle Operators Identification Card

.Notice Regarding Unpaid Pay and Allowances of Deceased Member dated27 February 1967

.DA Form 52-2 (Statement of Casualty) dated 28 February 1967

.DD Form 397 (Claim Certification and Voucher for Death Gratuity)

.Veterans Administration letter dated 24 April 1967



FACTS: 

1.The applicant states that she never received a notification or award of anyDepartment of Defense (DOD) benefits following the death of her husband. Shecontests that she was not appointed a Casualty Assistance Officer (CAO) to assist withfiling for benefits. However she was presented with his military awards, but that is all.She was not granted medical benefits, entitlement to an identification card noreducational benefits.

a.While reviewing some documentation, she located a claim form regarding in paidpay and allowances of a deceased service member which had not been completed. She received this document in 1967. She adds that she also located a certification and voucher for death gratuity payment form, however her records do not reflect receipt of this payment from the Casualty Assistance Office at that time.  



b.She received a notification from the Defense Finance Accounting Service (DFAS)concerning her claim. Her application was returned without action citing that the request exceeded their authority based upon the provisions set forth in the Barring Act of 1940. 



c.The death of a spouse killed in action is devastating. You never regain control ofyour emotions and you are unable to think clearly. She was unaware of a final payment, month of death payment or of any survivor benefits. She was lost. The process is perceived to be easy; however, she was only 24 years old, living in the country of Tennessee at the time. The FSM departed for service in the military on her 24th birthday and was subsequently killed in action on 16 February 1967. He had only served for 9 months.  



d.She was assigned a CAO for 1 day. He provided her with a ride to the ShelbyCounty School Board building. She doesn’t recall why they went there. She remembers in the summer of 1967 someone arrived at her home and presented her with the FSM Purple Heart Medal and a Silver Star Medal. 



e.She believes that some of the available programs should occur automatically andnot dependent upon actions to be taken by the spouse of a fallen Soldier. She did not receive professional assistance nor was she aware of what to ask for. There are annual dates that you will always remember – your wedding date, date of induction, date of the FSM departure to Vietnam, date he was killed in action, Memorial day and Veterans day just to name a few.   



f.She has pondered this for over 53 years. No one knows the emotional stress thata person goes through when they lose a loved one to war. This is a life changing thing and only a person that has incurred such a loss truly can relate.  



2.A review of the FSM’s available service records reflects the following:

a.On 24 May 1966 he was inducted into the Regular Army.



b.On 27 May 1966 he completed a DA Form 3054 (Elections of Amount,Beneficiary Designation and Settlement Options for Servicemen’s Group Life Insurance (SGLI)) electing life insurance in the amount of $10,000. 



c.On or about 8 November 1966 he departed for the Republic of Vietnam.



d.On 16 February 1967 he was killed in action while serving in the Republic ofVietnam. 



e.19 February 1967 the applicant was notified of his death. The completedDD Form 1300 (Report of Casualty) indicates that the claim for survivor benefits was mailed to the applicant notifying her that payment for the maximum death gratuity would be made within 72 hours. At the time of his death his Basic Pay was $121.80. 



f.On 6 March 1967 the applicant was mailed information concerning tax relief,SGLI, a claim of death benefits, a Veteran’s Administration pamphlet explain federal benefits for veterans and their dependents. This letter also indicated that she would be presented with a Purple Heart Medal on behalf of the FSM.   



g.On 27 March 1967 (General Order# 414) he was posthumously awarded theSilver Star Medal. 



3.The applicant provides the following:

a.Marriage Certificate reflective of her relationship as the spouse of the FSMeffective 22 November 1963. At the time of her marriage her name reflects P. 



b.Social Security Card reflective of the FSM’s social security number.



c.Selective Service System Notice of Classification reflective of the FSM’s























selective service number. d. Selective Service System Registration Certificate reflective of the FSM registering on 29 June 1960 for the selective service. e. DD Form 62 (Statement of Acceptability) dated 15 December 1965 reflective of the FSM being deemed as qualified for service. f. U.S. Government Motor Vehicle Operators Identification Card reflective on the FSM’s qualification to drive a government vehicle. g. Notice Regarding Unpaid Pay and Allowances of Deceased Member dated27 February 1967 reflective of her being designated as the beneficiary of unpaid pay and allowances or arears of retired pay. The applicant’s name is listed as Ms. R h. DA Form 52-2 (Statement of Casualty) dated 28 February 1967 reflective of the FSM’s cause of death on 16 February 1967. i. DD Form 397 (Claim Certification and Voucher for Death Gratuity) reflective of her denial of the previous receipt of gratuity pay as the FSM’s widow. The document was witnessed by a R_. The applicant’s name is listed as Ms. R. The 


applicant bears the same last name as the witness. It is unclear what the formal relationship is. 



j.Veterans Administration letter dated 24 April 1967 reflective of her beingawarded a monthly annuity payment of $135.00 effective 17 February 1967. 



4.On 22 October 2020 the Tennessee Survivor Outreach Services provided astatement following a discussion with the applicant wherein she indicated that she waspreviously provided with survivor benefits from the Department of Defense and theVeterans Administration soon after the applicant was deceased in 1967. Her recordsare void of missing or pending benefits until her current marital status changes. Shewas therefore advised to contact their office should her marital status change in thefuture. The applicant is referred to as Ms. R_ in this communication. The last name isconsistent with previously provided claim documents however it differs from theapplicant’s maiden name of P_.

5.See applicable regulatory guidance below under REFERENCES.

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted.  The applicant’s contentions, the military record, and regulatory guidance were carefully considered.  Evidence of record shows the FSM’s passing occurred while he was on active duty.  The applicant was provided casualty assistance, and payments resulting from the FSM’s death.  The applicant’s current marital status and possible marital history after becoming a widow was not available for the Board to review.  The Board was challenged to consider correcting the record addressing a 6-year statute when her request is 54 years after the event.  The Board agreed survivor benefits would cease if the applicant remarried before she reached the age of 55.  Therefore, the Board determined evidence of her marital history is required to further consider her request.  There is insufficient evidence to grant relief. 
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 


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. 

REFERENCES: 

1.The Barring Act, 31 U.S.C. § 3702 states that the Secretary of Defense shall settleclaims involving uniformed service members’ pay, allowances, travel, transportation,payments for unused accrued leave, retired pay, and survivor benefits. A claim againstthe Government presented under this section must contain the signature and address ofthe claimant or an authorized representative. The claim must be received by the officialresponsible under subsection (a) for settling the claim or by the agency that conductsthe activity from which the claim arises within 6 years after the claim accrues. A claimthat is not received in the time required under this subsection shall be returned with acopy of this subsection, and no further communication is required. Attacks to the barringstatute have resulted in litigation in the U.S. Court of Federal Claims. In the case ofPride versus the United States, the court held that the Board for Correction of Military
Records (BCMR) is not bound by the barring act, that the 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. 
 
2.  Public Law 83-239, enacted 8 August 1953, established the USCOA. Unless option 4 was elected along with either option 1 (annuity payable to or on behalf of widow, option 2 (annuity payable to or on behalf of surviving child or children) or option 3, premiums continued to be paid after the death of the beneficiary. 
 
3.  Public Law 87-381, enacted 4 October 1961, established the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.  Option 4 was not made automatic until Public Law 90-485 was enacted on 13 August 1968 for members retired on or after 13 August 1968. 
 
4.  A surviving spouse may remarry after age 55 and continue to receive SBP payments for life. However if the surviving spouse remarries before age 55, SBP payments will stop, but may be resumed if the marriage later ends due to death or divorce. 
 
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