Search Decisions

Decision Text

AF | BCMR | CY2014 | BC 2014 03923
Original file (BC 2014 03923.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				DOCKET NUMBER: BC-2014-03923

							COUNSEL:  NONE
							HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

The daughter of the deceased former military member is 
requesting a waiver of The “Barring Act” which would entitle her 
to claim the arrears of pay (monies due and unpaid to a member 
at time of death) that have been barred.


APPLICANT CONTENDS THAT:

She was born and raised in the Philippine Islands, solely by her 
mother and had not known the whereabouts of her father for a 
long time.

The applicant’s complete submission, with attachments, is at 
Exhibit A.


STATEMENT OF FACTS:

The deceased former military member initially entered the 
Regular Air Force on 8 Apr 50.

On 31 Aug 68, the deceased former military member retired, and 
was credited with 24 years, 1 months, and 29 days of active 
service.   

According to the certificate of death, provided by the 
applicant, the former military member died on 1 Jan 94.

The remaining relevant facts pertaining to this application are 
contained in the memorandum prepared by the Air Force office of 
primary responsibility (OPR), which is attached at Exhibit C.    


AIR FORCE EVALUATION:

DFAS recommends denial.  The request to waive the barring 
statute must go through the Branch of Service and then 
ultimately to the Defense Office of Hearings and Appeals (DOHA) 
who has the authority to waive the barring act.  The former 
military member passed away on 1 Jan 94.  His retired pay 
account was suspended on 5 Dec 94.  His last payment, dated 
3 Jan 94, was electronically deposited at his financial 
institution, representing retired pay due for the period 
1 Dec 94 through 31 Dec 94.  The applicant provided a 
letter to DFAS, dated 19 Jan 04 advising them of the 
passing of the late military member, her father.  A 
condolence letter, dated 15 Mar 04, with an enclosed claim 
form was sent to the applicant.  The arrears of pay must be 
claimed within six years from the member’s date of death.  
Although, no claim was made within six years from the 
member’s date of death, the condolence letter is 
automatically sent when the death of a member has been 
confirmed.  The applicant notified DFAS more than six years 
after the member’s death, there is no arrears of pay due.  
The “Barring Act”, Title 31 U.S.C. 3702(b), provides a six 
year statute of limitations for filing claims against the 
Government.  The applicant may request to have the barring 
statute waived.  The amount of arrears pay that would be 
payable if the barring statute was waived is $36.93 (1 day of 
retired pay due for 1 Jan 94).

A complete copy of the DFAS evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 7 May 15 for review and comment within 30 days 
(Exhibit D).  As of this date, no response has been received by 
this office.


THE BOARD CONCLUDES THAT:

1.  The applicant hasn’t exhausted all remedies provided by 
existing law or regulations.

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  In this 
respect, we note this Board is the highest administrative level 
of appeal within the Air Force.  As such, an applicant must 
first exhaust all available avenues of administrative relief 
provided by existing law or regulations prior to seeking relief 
before this Board, as required by the governing Air Force 
Instruction.  The Air Force office of primary responsibility has 
reviewed this application and indicated there is an available 
avenue of administrative relief the applicant has not first 
pursued.  In view of this, we find this application is not ripe 
for adjudication at this level as there exists a subordinate 
level of appeal that has not first been depleted.  Therefore, in 
view of the above, we find no basis to recommend granting the 
relief sought in this 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-2014-03923 in Executive Session on 11 Jun 15, under 
the provisions of AFI 36-2603:

The following documentary evidence pertaining AFBCMR Docket 
Number BC-2014-03923 was considered:

	Exhibit A.  DD Form 149, dated 10 Sep 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, DFAS, dated 24 Oct 14.
	Exhibit D.  Letter, SAF/MRBR, dated 7 May 15.

						

Similar Decisions

  • AF | BCMR | CY2014 | BC 2014 00195

    Original file (BC 2014 00195.txt) Auto-classification: Denied

    APPLICANT CONTENDS THAT: In a two-page brief, through counsel, the applicant contends the following: Her former spouse intended for her to be the SBP beneficiary from the date of their divorce on 18 May 99, to the date of his death. The Board should consider her untimely application in the interest of justice because she did not discover the error until after the death of her former spouse. There is no evidence of Air Force error in this case and absent a competing claimant, we recommend...

  • AF | BCMR | CY2008 | BC-2007-03521

    Original file (BC-2007-03521.doc) Auto-classification: Approved

    In support of her application, the applicant submits her personal statement, a letter from the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL), a letter from the Air Force Casualty Assistance office, a durable power of attorney, a letter from the annuity pay operations office, a verification for survivor annuity form (DD Form 2656- 7, a direct deposit sign up form, a withholding certificate for pension or annuity payments (W-4P), a claim for unpaid compensation of...

  • AF | BCMR | CY2013 | BC-2013-00641

    Original file (BC-2013-00641.txt) Auto-classification: Approved

    With the help of his attorney, he prepared all the necessary documentation to properly claim the SBP entitlement and submitted this information to DFAS. Additional relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Her father enrolled in the SBP and subsequently elected maximum spouse and child coverage during an SBP open enrollment, and had a “Helpless Child.” Her mother predeceased her father by approximately...

  • AF | BCMR | CY2010 | BC-2010-02569

    Original file (BC-2010-02569.txt) Auto-classification: Denied

    The deceased member elected spouse and child SBP coverage based on full-retired pay during the initial enrollment period. DPSIAR states the law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse’ eligibility; therefore, the fact the divorce decree mentioned the SBP does not provide standing to establish SBP coverage on the applicant’s behalf. We took notice of the applicant's...

  • AF | BCMR | CY2012 | BC-2012-05028

    Original file (BC-2012-05028.txt) Auto-classification: Approved

    RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05028 COUNSEL: NONE (DECEASED SERVICE MEMBER) HEARING DESIRED: NO (APPLICANT) ________________________________________________________________ APPLICANT REQUESTS THAT: Her spouse’s records be corrected to reflect she submitted a timely request for her Reserve Component Survivor Benefit Plan (RCSBP) annuity. ...

  • AF | BCMR | CY2007 | BC 2007 03737

    Original file (BC 2007 03737.txt) Auto-classification: Denied

    Even though the SBP was not addressed in the divorce decree, the member could have elected former spouse coverage voluntarily within the first year following the divorce, but failed to do so. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error...

  • AF | BCMR | CY2014 | BC 2014 00167

    Original file (BC 2014 00167.txt) Auto-classification: Approved

    RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00167 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: She be designated as the former spouse beneficiary under the Survivor’s Benefit Plan (SBP). There is no evidence of Air Force error in this case and absent a competing claimant, DPFFF recommends the decedent’s record be corrected to reflect that on...

  • AF | BCMR | CY2012 | BC-2012-01230

    Original file (BC-2012-01230.pdf) Auto-classification: Approved

    DFAS states that based on Claims, Against the Government, Title 31 United States Code Section 3702(b) (31 USC § 3702(b)), The Barring Act, the applicant was required to submit a claim for the SBP annuity within six years from her deceased spouse’s date of death. _________________________________________________________________ 2 APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION: The applicant’s counsel states there is no statue or regulation that states DD Form 2656-7 and only this form, is...

  • AF | BCMR | CY2011 | BC-2010-02727

    Original file (BC-2010-02727.docx) Auto-classification: Approved

    Her deceased husband’s records be corrected to reflect that she made timely notification of his death so she may receive benefits under the Reserve Component Survivor Benefit Plan (RCSBP). The applicant states she was misinformed by the member’s ANG unit to wait until his 60th birthday (16 Jun 10) to file a claim for benefits. Exhibit B. Decedent’s Master Personnel Records.

  • AF | BCMR | CY2014 | BC 2014 00704

    Original file (BC 2014 00704.txt) Auto-classification: Denied

    He submitted DD Form 1882, for former spouse and child coverage; however, DFAS-CL did not honor the election because it was not received until after the one-year eligibility period. However, while the applicant contends the election for former spouse coverage was made within the required time, no evidence has been provided, to our satisfaction, that she or the deceased former member submitted a valid former spouse election during the first year following their divorce. THE BOARD DETERMINES...