IN THE CASE OF:
BOARD DATE: 1 April 2010
DOCKET NUMBER: AR20100011271
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, in effect, correction of her former spouse's records, a deceased former service member (FSM), to show she submitted the paperwork necessary to apply for the Arrears of Pay (AOP) within the 6-year statute of limitations.
2. The applicant makes no statement.
3. The applicant provides a letter from the Defense Finance and Accounting Service (DFAS) to Senator Nelson, applicant's letter to the Secretary of the Army, Senator Nelson's letter to the Secretary of the Army, and United States Senate Consent for Release of Information.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Evidence shows the FSM died on 21 June 2001.
3. A letter from DFAS to Senator Nelson, dated 20 October 2009, indicates the applicant was designated to be the recipient of the FSM's AOP. The AOP is the portion of the FSM's military retired pay that he earned the month he died. Title 31, U.S. Code, section 3702, requires that the paperwork necessary to apply for the AOP be submitted within the 6-year statute of limitations. DFAS further states, "Regrettably, we did not notify [applicant] that she was the designated beneficiary for the AOP."
4. Title 31, U.S. Code, section 3702, also known as the barring statute, 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.
DISCUSSION AND CONCLUSIONS:
1. The DFAS letter to Senator Nelson indicates the applicant was designated to be the recipient of the FSM's AOP, but that DFAS regrettably did not inform the applicant of this. Now DFAS cannot settle this account because it exceeds the
6-year statute of limitations,
2. It would be inequitable and unjust to deny the applicant the AOP because of the passage of time and the fact that she was not properly notified of her entitlement. As such, it would be fitting to show she submitted the paperwork to apply for her former spouse's AOP within the 6-year statute of limitations.
BOARD VOTE:
____X___ ____X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 she submitted the paperwork to apply for her former spouse's AOP within the 6-year statute of limitations and that DFAS pay her any amount due.
___________XXX__________
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.
ABCMR Record of Proceedings (cont) AR20100011271
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ABCMR Record of Proceedings (cont) AR20100011271
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