IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100026782 


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, payments from the retired pay of her deceased former spouse, a former service member (FSM), from 30 June 1997 until 25 April 2004, the time of his death, under the Uniformed Services Former Spouses' Protection Act (USFSPA).

2.  She states her attorney sent a letter to the Defense Finance and Accounting Service (DFAS) and was advised that payment would begin 60 to 90 days after the FSM retired.  The payment did not begin as stated in the letter received on 1 August 1995.  A Congressional response reports her former spouse died on 25 April 2010 (inaccurate date).

3.  She provides:

* marriage certificate
* divorce decree
* Qualified Domestic Relations Order
* one letter each to and from DFAS
* letter to the applicant's and the FSM's attorneys
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Email from a DFAS staff member
* correspondence between the applicant, a Member of Congress, and DFAS


CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he was born on 17 August 1959 and enlisted in the Regular Army on 14 June 1978.

2.  The applicant and the FSM were married on 17 June 1983.

3.  The applicant and the FSM's divorce decree, dated 5 April 1995, stipulated the applicant was awarded a portion of the FSM's military retired pay pursuant to Public Law 98-525, dated 19 October 1984, section 643, to be calculated as follows:  10.79 years (of marriage), divided by the number or years of service of FSM, divided by 2, multiplied by the amount of retired pay of FSM.  The same to be paid by monthly allotment to the applicant effective upon the date of the FSM's retirement, provided the FSM procures and pays for insurance upon the life of the applicant and that the FSM shall cooperate in the obtaining of said insurance, and further provided that the applicant waived any interest she may have, if any, to the FSM's Survivor Benefit Plan (SBP).

4.  The applicant and the FSM consented to the terms of the divorce and it was ordered, adjudged, and decreed on 5 April 1994.

5.  The applicant's and the FSM's Qualified Domestic Relations Order, dated 5 April 1994, stipulated in Section VI (Death of Participant and Survivor Benefits – Provisions for Treatment of Former Spouse of Participant as Surviving Spouse of Participant for Purpose of Qualified Preretirement Survivor Annuity, Qualified Joint and Survivor Annuity, and Other Survivor Benefits), that "the former spouse of the [FSM], shall be treated as the surviving spouse of the [FSM]…until the benefits are distributed to him/her or transferred to a retirement account in his/her name."

6.  In a letter, dated 1 August 1995, DFAS advised the applicant that her Application for Former Spouse Payments from Retired Pay for division of the retired pay from the member's account under USFSPA had been received.  The member would be notified of the application and given 30 days to contest the court order.  If the member did not contest or DFAS determined that his objection was invalid, payments would tentatively commence 60 to 90 days after the date the member retired and began receiving his retired pay.

7.  The applicant provided copies of letters, dated 23 October 1995, to her and the FSM's attorneys pertaining to insurance forms.

8.  The FSM retired on 30 June 1997 and was placed on the Retired List on 1 July 1997.

9.  There is no evidence the FSM contested the court order pertaining to the payments from his retired pay.

10.  The FSM died on 25 April 2004.

11.  In email correspondence, dated 19 May 2010, the Assistant Counsel, Office of General Counsel, Garnishment Operations Directorate, advised the applicant that since her former spouse died on 25 April 2004, she was entitled to 1 month's payment.  The Barring Act limited claims to 6 years prior to the date the claim for missed payments was made.  Given the date of her former spouse's death, her claim was made 5 years, 10 months, and 29 days after the date of death.  As such, she was entitled to 1 month's payment.  Therefore, the Office of Retired Pay would be instructed to issue her a payment of $323.70 accordingly.

12.  In a letter in response to an inquiry on behalf of the applicant, dated 28 July 2010, DFAS advised a Member of Congress that the applicant's application for payments from the FSM's retirement pay was approved in 1995.  Regrettably, when the FSM retired on 1 July 1997, the applicant's entitlements did not begin.  Title 10, U.S. Code, section 1408(f)(4), advised that a former spouse qualifying for direct payment under USFSPA was entitled to receive payments until the date of death of the member or former spouse, whichever occurred first.  The FSM died on 25 April 2010 [sic].  Title 31, U.S. Code, section 372(b), commonly referred to as the Statute of Limitations (Barring Act), states that a claim must be received within 6 years from the date the claim accrued.

13.  The letter also advised that the applicant contacted DFAS on 23 March 2010 to request a makeup of missed USFSPA payments from the date of the FSM's retirement.  DFAS did not receive any correspondence from the applicant until July 2010.  Based on the foregoing, DFAS could not issue any payments, current or retroactive, under USFSPA to the applicant.  The Member of Congress was provided a DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) for the applicant to complete to apply for a waiver of the Barring Act.

14.  USFSPA allows state courts to consider military retired pay as divisible property in divorce settlements after 25 June 1981.  It also establishes procedures by which a former spouse could receive all or a portion of the court settlement as a direct payment from the finance service center.  However, once a court has awarded a former spouse a portion of retired pay as property, the former spouse may apply to the finance service center to receive that pay as a "direct payment."

15.  DFAS must begin direct payment to the former spouse within 90 days of receipt of a valid court order.  If a service member is not retired at the time of the court order, payments must begin no later than 90 days after the service member retires.  The law does not authorize a court to order a member to apply for retirement or to retire at a specified time in order to start payment.

16.  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 statute 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 evidence of record shows the applicant and FSM were married on 17 June 1983.  On 5 April 1994, the applicant was awarded payments under the USFSPA from the FSM's retirement pay as part of their divorce.  On 1 August 1995, she submitted an application for those payments.  She was advised the payments would tentatively commence 60 to 90 days after the date the FSM retired.  The FSM retired on 1 July 1997 and her entitlements did not begin.  The FSM died on 25 April 2004.  On 19 May 2010, she was advised that because her claim for payments was made 5 years, 10 months, and 29 days after the date of the FSM's death, she was only entitled to 1 month's payment.  On 28 July 2010, she was again advised the barring act prohibited the issuance of any payments, current or retroactive, under the USFSPA to her.

2.  While DFAS erred in 1995 when it verified receipt of her application and informed her she should being receiving a portion of her former's husband's retired pay 60 to 90 days after his retirement, it was her responsibility to diligently monitor her former husband's military status.  She did not reinitiate her claim for payment until March 2010, nearly 13 years after her former husband retired.  She knew or should have known she should have been receiving her portion of her former husband's retired pay at a much earlier point in time.  She also has not satisfactorily explained why she did not pursue a claim for payment within a reasonable time after her former husband's death in 2004.  Her claim was not filed within 6 years of the FSM's date of death.

3.  Considering the facts and circumstances of this case, invocation of the Barring Act by DFAS is entirely appropriate in both law and equity.  At the time of her request for payment, she was appropriately paid 1 month's pay due to the Barring Act.  Based on the foregoing, there is no equitable basis to grant approval of her claim for payment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 
are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
                 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)                                         AR20100026782



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ABCMR Record of Proceedings (cont)                                         AR20100026782



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