IN THE CASE OF:

		BOARD DATE: 26 October 2023

		DOCKET NUMBER: AR20230004374


APPLICANT REQUESTS:  in effect –

*	payment of the death gratuity payable upon death of the Former Service Member 
(FSM), and waiver of the Title 31, United States Code (USC), section 3702 
restriction 
*	a personal appearance before the Board via video/telephone 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Applicant statements
*	Applicant's Birth Certificate
*	Applicant's dependent identification card
*	Defense Finance and Accounting Service (DFAS) Retired and Annuitant Pay 
letter, 23 December 2019
*	Clinical Record of deceased FSM
*	Photograph of deceased FSM
*	DFAS letter, 8 December 2022

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code 
(USC), section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The daughter (applicant) of the deceased FSM states she requests the death 
gratuity payment of $100,000.00 be unbarred, reviewed, and paid to her. Her father 
(FSM) passed away in the battle zone in 2007 when she was 3 years old. She was the 
next of kin to receive any death gratuity. However, she was too young to collect the 
funds even after the 6-year period. Now she is 19 years old and can collect the funds, 
but they are currently barred. She no longer lives with her mother and does not have 
access to many of the answers or forms needed to fully answer or apply to these 
questions. She has included a document showing she is an annuitant and DFAS was 
sending the payments to her mother for her.    

3.  A review of the deceased FSM's official military record shows the following:     

	a.  The FSM enlisted in the Massachusetts Army National Guard (MAARNG) on          
15 July 1999.      

	b.  The FSM's record contains a certificate of marriage which shows he married on .  

	c.  On 14 July 2005, National Guard Bureau (NGB) Form 22 (Report of Separation 
and Record of Service) shows the FSM was honorably released from the MAARNG and 
was transferred to the U.S. Army Reserve Control Group (Annual Training) by reason of 
"expiration of Active Status (ETS with obligation)."   

	d.  On 15 February 2006, the FSM enlisted in the Regular Army.

	e.  On 21 February 2006, Mrs.  was sent a Servicemen's Group Life Insurance 
(SGLI) - Spouse Notification Letter notifying her that, as the current lawful spouse of the 
FSM, the law provides for spouse notification whenever a service member elects a 
beneficiary designation for SGLI other than the current lawful spouse or declines or 
reduces the maximum SGLI coverage for the spouse. This letter was to inform her that 
on 21 February 2006, the FSM has elected a beneficiary other than current lawful 
spouse or child. The FSM was entitled to make the above election. While the U.S. Army 
was not authorized to identify the names of any other beneficiaries (if elected), they 
were required to notify her of her spouse's [FSM], decision. SGLV 8286 (SGLI Election 
and Certificate) shows the FSM named his father (Mr. ) as his beneficiary (100 percent 
lump sum payment option).

	f.  On 16 August 2006, DD Form 93 (Record of Emergency Data) was completed
by the FSM and shows the following in:

*	item 4a (Spouse Name) – Divorced 
*	item 5a (Children Name) –  (Applicant) 
*	item 5b (Relationship) – Daughter
*	item 5c (Date of Birth) – 
*	item 9a (Beneficiary(ies) for Death Gratuity (if no surviving spouse or child)) – 
(Father) 

	g.  On 23 January 2007, DD Form 2064 (Certificate of Death (Overseas)) was 
completed which shows the FSM was divorced at the time of his death on .  
	h.  On 8 February 2007, DD Form 1300 (Report of Casualty) was prepared and 
completed which shows the FSM died on active duty on 13 January 2007, in Balad, Iraq 
from hostile action (blast and shrapnel injuries). Item 7 (Interested Persons/Remarks)
shows the applicant, "c/o Mrs., (Daughter 2)."

4.  On 20 October 2023, an inquiry was made to the Defense Finance and Accounting 
Service (DFAS) pertaining to the disbursement of a death gratuity payment to an 
annuitant. On 23 October 2023, a DFAS official replied stating "Regarding the Death 
Gratuity claim for the applicant () (SM FSM); the claim was denied on 8 December 2022 
because of the application of the Barring Act. The denial letter was sent to the applicant 
on 8 December 2022 explaining the reason for the denial as well as the paths of 
redress."

5.  The applicant provides:

	a.  A Commonwealth of City of birth certificate which shows her birthdate and lists 
the FSM as her father. 

	b.  Department of Defense dependent identification card which shows her as the 
child of the FSM.

	c.  DFAS Retired and Annuitant Pay letter which shows her as the annuitant of the 
FSM.  

	d.  SF 507 (Clinical Record) listing the FSM's name and Social Security Number 
(SSN).

	e.  A photograph showing the FSM's name and SSN.

	f.  DFAS letter dated 8 December 2022 wherein she was informed by DFAS her 
claim for the $100,000.00 death gratuity was denied due to the Barring Act. This letter 
confirms her status as the proper beneficiary of the death gratuity and further confirms 
that a claim was not submitted on her behalf. The letter alludes to the possibility that the 
family was given erroneous information that led them to believe the 6-year statute of 
limitations for filing a claim would not commence until she reached the age of majority 
and notes that having received erroneous information does not change the fact that her 
claim accrued on the date of her father’s death and the claim period expired 6 years 
later. The letter advised her of three avenues of redress that could result in payment of 
the barred amount, one of which included the ABCMR, which DFAS advised could 
correct the record to show she made a timely claim for the barred amounts.



BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found relief is warranted. The Board found the 
available evidence sufficient to consider this case fully and fairly without a personal 
appearance by the applicant.

2.  The Board found the letter from DFAS confirms a timely claim for the death gratuity 
was not submitted on the applicant’s behalf, possibly because of the family receiving 
erroneous information. The Board found this to be inequitable and determined the 
record should be corrected to show a timely request for the death gratuity was 
submitted on the applicant’s behalf and she should be paid any monies she is due as a 
result of this correction.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

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 a request for the 
death gratuity was submitted on the applicant’s behalf within 6 years of the FSM’s 
death. The applicant should be paid any monies she is due as a result of this correction.
	 
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.  Title 10, USC, 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.

2.  Title 31, USC, 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 6 years from the date of approval of the claim. Legal challenges to the barring 
statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of 
Pride versus the United States, the court ruled that the Board for Correction of Military 
Records (BCMR) is not bound by the barring act, and 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.  

3.  Department of Defense Financial Management Regulation 7000.14, Volume 7A,
chapter 36 (Payment on behalf of Deceased Members) states:

	a.  Death gratuity will be paid, regardless of whether death occurred in the line of
duty or as the result of a member's misconduct, to eligible beneficiaries. A member may
designate one or more persons, to receive a portion of the amount payable under 
paragraph 360206. If a member provides conflicting information regarding designation
of beneficiaries and their proportionate shares of the death gratuity in blocks 11 and 14
of the DD Form 93, then payment will be made only to the extent that there are
unambiguous designations.

	b.  Distribution. If a member does not make a designation under subparagraph
360203.A, or designates only a portion of the amount payable, then the remaining
amount of the death gratuity not covered by a designation will be paid as follows:

*	To the surviving spouse of a member
*	If no surviving spouse, then the child or children of the member and
   descendants of deceased children, by representation

	c.  Determination of an eligible beneficiary may be established by the original or
certified copy of the birth certificate. If the death gratuity is in excess of $10,000.00, then
payment may only be made to the guardian or conservator appointed by a court to 
receive such payments for the minor's benefit, thereby providing the government a 
means of obtaining a good acquittance.

	d.  Section 360206 (Amounts payable and Exemptions) the amount of death gratuity
is $100,000.00  

4.  Army Regulation 15-185 (ABCMR), states that the ABCMR begins its consideration 
of each case with the presumption of administrative regularity. It will decide cases 
based on the evidence of record and it is not an investigative body. The applicant has 
the burden of proving an error or injustice by a preponderance of the evidence. 
Paragraph 2–11 states that applicants do not have a right to a hearing before the 
ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice 
requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230004374


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1