RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03181 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: She receives her late husband’s Death Gratuity (DG) due at the time of his death. ________________________________________________________________ THE APPLICANT CONTENDS THAT: She was not aware of the DG at the time of her husband’s death. After his death, she was not assigned a casualty assistance counselor, was pregnant with her first child, and was relocating to Florida. When her child was 3 months old, she returned to Massachusetts to reestablish residency and was never made aware of the benefits, except for Dependents Indemnity Compensation (DIC) and Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPA) [sic]. She has gone through a lot of research and effort to try to find out how to receive the benefit, e.g. request through Air Force officials, the National Personnel Record Center (NPRC), the Department of Veterans Affairs (DVA), and a letter to the Spouse of the President, Mrs. Obama. In support of her appeal, the applicant provides a personal statement; a newspaper clipping; copies of her letters to the DVA, the First Lady, and letters from the DVA, NPRC, state officials; the decedent’s death certificate, and extracts of the former member’s DVA and military personnel record. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The decedent’s master personnel records were destroyed by fire at the National Personnel Record Center (NPRC), in St. Louis, in 1973. Therefore, the facts pertaining to this application are taken from the documents provided by the applicant and those facts contained in the evaluation prepared by the appropriate office of the Air Force. The decedent died on June 17, 1960. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPWC recommends contacting the Defense Accounting and Finance Service, Indiana (DFAS-IN) on whether the DG was paid. Based on the evidence provided by the applicant, she was designated as beneficiary for the DG pay and unpaid pay and allowances. At the time of the decedent’s death, the DG was equal to six times the member’s base pay. The available documents reflect the decedent’s base pay was $222.30; therefore, the DG would have been approximately $1333.80. The complete AFPC/DPWC evaluation, with attachments, is at Exhibit C. DFAS-IN recommends denial. Based on Title 31, United States Code (USC), 3702, Section 1, the Barring Act of 1940, states that a claim is barred unless it is received within six years after the date the claim first accrued. The date of receipt is the controlling factory in considering the applicant’s claim. Since the claim for DG accrued at the time of her husband’s death and was received more than six years after the date it accrued, it is barred for consideration by the provisions of the Barring Act. They found no record of a prior claim from the applicant. The complete DFAS-IN evaluation, with attachment, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 22 Oct 10 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not filed within three years after the alleged error or injustice was discovered, or could have been discovered, as required by Section 1552, Title 10, United States Code (10 USC 1552), and Air Force Instruction 36-2603. Although the applicant asserts a date of discovery which would, if applicable, make the application timely, the essential facts which give rise to the application were known to the applicant long before the asserted date of discovery. Knowledge of those facts constituted the date of discovery and the beginning of the three-year period for filing. Thus, the application is untimely. 3. Paragraph b of 10 USC 1552 permits us, in our discretion, to excuse untimely filing in the interest of justice. We have carefully reviewed applicant's submission and the entire record, and we do not find a sufficient basis to excuse the untimely filing of this application. The applicant has not shown a plausible reason for delay in filing, and we are not persuaded that the record raises issues of error or injustice that require resolution on its merits. Regrettably, we conclude that it would not be in the interest of justice to excuse the untimely filing of the application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-03181 in Executive Session on 26 May 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 Aug 10. Exhibit B. Available Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPWC, dated 13 Oct 10, w/atchs. Exhibit D. Letter, DFAS, undated, w/atchs. Exhibit E. SAF/MRBR, dated 22 Oct 10. Panel Chair