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 applicants 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 members date of death.
Although, no claim was made within six years from the
members 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 members 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 hasnt 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.
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