BOARD DATE: 24 June 2014
DOCKET NUMBER: AR20130014517
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 that he be granted a waiver to be paid the remaining $75,000 death gratuity for his deceased spouse, a former service member (FSM).
2. The applicant states that when his spouse died he was not paid a death gratuity payment. He was contacted by the Armys Casualty and Mortuary Affairs office and was advised to pursue the matter. He was eventually granted a $25,000 payment by the Department of Hearings and Appeals (DOHA) because their authority was limited to $25,000. He needs a waiver because the Defense Finance and Accounting Service (DFAS) has invoked the 6-Year Barring Statute which prevents payment of the remaining gratuity payment.
3. The applicant provides a one-page letter explaining his application, copies of the FSMs Department of Veterans Affairs (VA) Rating Decision, a DD Form 397 (Claim Certification and Voucher for Death Gratuity Payment), DOHA Decision, Direct Deposit Form, DD Form 214 (Certificate of Release or Discharge from Active Duty), Report of Casualty, FSMs Death Certificate, Request for Line of Duty Determination, and DD Form 214 Worksheet.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 11 February 2002.
2. On 23 April 2003, the FSM was honorably released from active duty (REFRAD) due to pregnancy or childbirth.
3. The FSM died in Clarksville, Tennessee on 21 August 2003, 120 days after her REFRAD.
4. On 6 April 2004, the VA granted service-connection for the FSMs cause of death.
5. On 25 July 2013, DOHA determined that since the FSM had died within 120 days of her separation from active duty, her spouse was entitled to a $100,000 Death Gratuity payment and granted the applicant payment of $25,000, the maximum allowed by law for that agency.
6. Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations) provides, in pertinent part, that a death gratuity is paid to certain survivors of Soldiers who die within 120 days of separation. The 120 day period begins on the day following the date of REFRAD or discharge.
8. Title 31, U. S. Code, section 3702, also known as The Barring Act prohibits the payment of a claim against the Government unless the claim has been received within 6 years after the claim accrues.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he is entitled to the remaining $75,000 death gratuity payment has been noted and appears to have merit.
2. The FSM died 120 days after her REFRAD and her spouse, the applicant, is entitled to receive the remaining $75,000 death gratuity payment as authorized by law.
3. While it is recognized that more than 6 years has elapsed since the FSMs death, it is also recognized that had the applicant been properly advised by Department officials at the time, the payment would have been made in a timely manner as no reasonable person would ignore a $100,000 entitlement if properly made aware of such entitlements.
4. One of the reasons behind the Barring Act is to relieve the Government of excessive paperwork and prevent stale, baseless claims which the government cannot substantiate. Documents verifying the applicants entitlements are readily available.
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 the applicant made a timely application for the death gratuity, that the FSMs death was service-connected, and paying the applicant the remaining $75,000 death gratuity payment due him as the result of the death of his spouse, an FSM who passed away on 21 August 2003.
_______ _ 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) AR20130014517
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