BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130009308 


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, the son of a deceased former service member (FSM), requests, in effect, correction of the FSM's DA Form 4240 (Data for Payment of Retired Army Personnel) and waiver of the 6-year barring statute on unpaid claims for arrears in retired pay.

2.  The applicant states his sister helped the FSM fill out the DA Form 4240.  She accidentally entered Eric Roger W----, her son (the FSM's grandson), in place of Kerry C. W----, the applicant.  He (the applicant) is the FSM's only son.  The family never noticed this until it resulted in denial even though they filed a timely request.  Now the 6-year barring statute precludes collecting any unpaid retired pay.  He believes that the Defense Finance and Accounting Service (DFAS) erred when they concluded that no DD Form 1883 (Survivor Benefit Plan Election Certificate) was on file.

3.  The applicant provides copes of: 

* the FSM's DA Form 4240 
* death certificate for the FSM and his spouse
* birth certificates  
* FSM's Chronological Record of Military Service (retirement points record)
* Eric Roger W-----, the FSM's grandson's, designation of the applicant as General Power of Attorney (POA), signed, witnessed and notarized on 
	19 April 2013
* Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), signed by the applicant as executor of the FSM's spouse's estate, dated 9 April 2011
* correspondence from DFAS 

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM served in World War II and enlisted in the U.S. Army Reserve in 1953.  He was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) in August 1972.  He continued to participate until his 60th birthday when he was placed on the Army of the United States Retired List on 12 June 1979.  A DA Form 3713 (Data for Retired Pay) was filed on 21 January 1980.

3.  The subject DA Form 4240 was signed by the FSM on 2 December 1979; shows in:

	a  Part II (Information Concerning Beneficiaries for Unpaid Retired Pay) - his spouse and Eric Roger W-----, a son, as equal (50%) beneficiaries for any unpaid retired pay.  

	b.  Part IV (Survivor Benefit Plan Election) - the FSM designated his spouse and dependent children as SBP beneficiaries and listed two dependent children:

* a daughter, Fonda Marsha W----- (date of birth – 19 April 1965)
* a son, Eric Roger W----- (date of birth – 27 April 1968) 

4.  A 21 January 1980 DA Form 3713 noted that a DD Form 1883 was not on file.  A handwritten note on the FSM's 2 February 1980 application for retired pay indicates his monthly retired pay will be $288.00.  
5.  The death certificates show the FSM died on 16 April 1995; his widow died on 16 November 2010.

6.  An 18 January 2013 letter from DFAS informed the applicant that he was not owed any arrears in pay because he was not a beneficiary on the account.

7.  In a 19 April 2013 letter, DFAS asked for a new claim form because the original was incomplete.  

8.  A 23 April 2013 letter from DFAS informed the FSM's grandson and the applicant as the POA, that payment was barred by the 6-year barring statute and that they could apply to this Board for a waiver.

9.  The applicant submitted copies of:

	a.  birth certificates for:

* himself – date of birth, 7 June 1959
* his sister, Connie – date of birth, 30 August 1951 
* Eric Roger W-----, Connie's son, the FSM's grandson – date of birth, 27 April 1968 

   b.  A Standard Form 1174, dated 4 May 2013.

10.  During the processing of this case, DFAS provided copies of:

	  a.  DD Form 1884 (Application for Annuity under the Retired Serviceman's Family Protection Plan (RSFPP) and/or (SBP)), dated 10 May 1995; 

	 b.  Standard Form 1174 prepared by the widow, witnessed but undated;

	 c.  a postcard from DFAS, reminding the widow that she had not returned the claim form for arrears in retired pay, dated 30 May 1995 (with hand printed note that no response had ever been received);

	 d.  statement of charges for the FSM's funeral expenses, dated 18 April 1995, and his death certificate;

	 e.  Standard Form 1174 by the applicant, witnessed but undated;

 	 f.  another copy of "c" above (less hand printed note);

	 g.  a general and durable POA by the FSM's widow appointing Connie S------and the applicant POAs, in that order, dated and notarized on 11 March 1997;

	h.  birth certificates for the applicant, and his sister Connie;
	
	 i.  the FSM's retired identification card and the applicant's and sister Connie's driver's licenses;

	j.  statement of charges for the widow's funeral expenses dated 18 April 1995 and her death certificate;

	k  Standard Form 1174 from the applicant with associated documents, mostly copies of those listed above; and

	 l  Standard Form 1174 filed by the applicant as Executor of the Estate of the FSM's widow.

11.  Subsequent to the above, an email from DFAS indicates there was no record of the FSM's widow ever applying for SBP. 

DISCUSSION AND CONCLUSIONS:

1.  The FSM's grandson Eric Roger W----- is indeed entered on the DA Form 4240 as the FSM's son.  The grandson and the applicant seem to have reached an equitable solution by the grandson designating the applicant as a POA.

2.  While it is understandable that the family may not have noticed this discrepancy in names, there is no evidence of any error on the part of the government and no injustice because no application for arrears in pay was made by either the applicant or the FSM’s grandson until 2010, about 15 years after the FSM died.

3.  The mix-up in names did not cause the applicant to be barred from recovering any arrears in pay, nor preclude the filling of a claim until the 6-year barring statute became a factor.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

5.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.



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)                                         AR20130009308





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ABCMR Record of Proceedings (cont)                                         AR20130009308



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