BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017058 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ _x_______ _x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017058 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. BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017058 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 a waiver of the statute of limitations with regard to payment of arrears of pay following the death of her father, a former service member (FSM), in December 2005. 2. The applicant states she is requesting a waiver of the statute and that her claim for arrears of pay be processed as indicated by the letter from the Defense Finance and Accounting Service (DFAS) in 2013. She believes it is unjust not to pay her the benefit due to her as promised in all fairness. She is his only daughter. 3. The applicant provides: * DFAS letter, dated 30 September 2013 * birth certificate * FSM's death certificate * expired dependent identification card * divorce decree * FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, the daughter of the deceased FSM, was born in August 1975 to the FSM and Matilda. 3. The FSM enlisted in the Regular Army on 1 July 1980 with prior service. He held a maintenance military occupational specialty. He served through multiple reenlistments and he attained the rank/grade of sergeant first class (SFC)/E-7. 4. The FSM married Jill on 21 December 1991. They divorced on 11 October 1996. 5. The FSM retired for sufficient length of service on 31 July 1997 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 August 1997. 6. On 20 December 2005, the FSM died. His death certificate shows his marital status as divorced and the applicant, his daughter, as his informant. 7. It appears at some point in 2013, the applicant corresponded with DFAS in relation to the FSM's arrears of pay. As a result, on 30 September 2013, a Military Pay Technician at DFAS requested the applicant provide a copy of the divorce decree between the FSM and his spouse. 8. In an audit of the FSM’s pay records, DFAS officials advised on 28 February 2017 the following: a. According to the member's DD Form 2656 (Data for Payment of Retired Personnel), the FSM elected Jill (spouse) at 100 percent as his primary arrears of pay beneficiary. He then elected Linesa (the applicant, who is the FSM's daughter) at 100 percent as his alternate beneficiary. An alternate beneficiary, would only be eligible if the primary beneficiary was deceased prior to the member and no other designation was received. DFAS records show: * 6 January 2006 – DFAS received notification of the member's death and immediately suspended his retired pay account * 9 January 2006 – DFAS sent a letter to Linesa requesting that she provide the whereabouts of Jill and documentation (i.e., divorce decree, death certificate) * 7 September 2010 – DFAS received a copy of the FSM's death certificate from a third party * 10 September 2010 – second letter was sent to Linesa requesting that she provide the whereabouts of Jill and documentation (i.e., divorce decree, death certificate) * 24 September 2013 – a claim form (SF 1174) was received from Linesa; form was considered incomplete (part C was not completed); a third letter was sent to Linesa requesting that she provide the whereabouts of Jill and documentation (i.e., divorce decree, death certificate) * 19 November 2013 – DFAS was advised by Bank of the West that the funds issued in error to the member after his death were withdrawn by Linesa; the DFAS Disbursing Department has sent numerous letters requesting that she return those funds, in the amount of $1,366.58 * 3 December 2013 – DFAS received a copy of the divorce decree provided by Linesa * 24 January 2014 – DFAS sent a letter to Linesa advising her that she is not entitled to arrears of pay because the FSM died on 20 December 2005 and she submitted a claim on 24 September 2013; DFAS advised her that she had to file a claim by 20 December 2011 (6 years after the date of death) b. DFAS stated Linesa continues not to be eligible for the FSM's arrears of pay. Although Jill, his former spouse, was designated, there is no indication that she is deceased. The applicant is no longer entitled to arrears of pay because funds are outstanding (she has a debt for overpayment of her father's retired pay) and it is also past the 6 year barring statue. REFERENCES: 1. Title 31, U. S. Code (USC), section 3702, also known as the Barring Act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 2. The DFAS official website explains arrears of pay: a. Arrears of pay is a one-time payment made to a beneficiary after the retired member's death. The arrears of pay payment to a beneficiary will include: the pro-rated amount of retiree's final month’s pay, and any other money owed to the member at the time of his/her death. b. In most cases, the arrears of pay will include the pro-rated amount of the member's final month's retired pay. This is because a retiree's entitlement to retirement pay ends on the date of his/her death. When death is reported, DFAS will reclaim the retiree's final month's pay and audit his/her account. The amount of the payment actually owed to the retiree will then be computed and given to the arrears of pay beneficiary. Failing to designate an arrears of pay beneficiary could cause stress and financial hardship for the survivors during an already difficult time. If the retiree does not designate an arears of pay beneficiary, the payment of any money that remains in his/her retirement account could be greatly delayed. c. When no beneficiary is named, the payment is made to the highest person in what is known as the "Order of Precedence." The Order or Precedence is the federally mandated order of inheritance that applies to legacies without a designated beneficiary. It can take many months to locate your survivors, identify who comes highest in the Order of Precedence, and then make the payment. That's why having a current, correct and complete beneficiary designation on file is important to prevent delays or errors in the retiree's arrears payments. d. Designating a sole beneficiary in a retiree's will does not automatically make that person the arrears of pay beneficiary. Arrears of pay determination is based exclusively on the arrears of pay beneficiary election in the retiree's retired pay account. The arrears of pay designation does not entitle the person named as a beneficiary(s) to the survivor benefit plan. A separate survivor benefit plan election must be made to cover the desired individual for survivor benefit plan purposes. DISCUSSION: 1. The applicant asked to waive the statute of limitations. The statute of limitations is a law. A change to the law is not within the purview of this Board. Likewise, waiving the law is not within the purview of this Board. 2. The FSM died on 20 December 2005. His arrears of pay beneficiary would have been entitled to receive the portion of the retired pay from 1 December 2005 to 19 December 2005. According to the FSM’s records, he named Jill, his former spouse, as the beneficiary of his arrears of pay. The applicant was named as an alternate. In the absence of documentary evidence that Jill is deceased, the applicant is ineligible for payment of the arrears of pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017058 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017058 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2