IN THE CASE OF:	  

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130017630 


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 daughter of the deceased former service member (FSM), requests, in effect, that the FSM's military records be corrected by showing she timely and properly filed a claim for the FSM's unpaid compensation.

2.  The applicant states she filed her claim in 2002 along with her three sisters.  While their claims were paid, the applicant's claim was not paid.

3.  The applicant provides copies of:

* A Certificate of Live Birth, issued 28 June 2001, for the applicant
* A Certificate of Death, issued 3 December 2001, for the FSM
* A letter from the Defense Finance and Accounting Service (DFAS) to the applicant, dated 23 September 2002
* A Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services) dated 19 November 2002
* A letter from DFAS to the applicant, dated 24 July 2012
* Email communications dated 6-8 February 2013 between DFAS and the applicant
* A letter from the applicant to the Secretary of the Army, dated 9 February 2013
* A letter from the Director, Army Transition Office, U.S. Army Human Resources Command (HRC) to the applicant, dated 19 March 2013



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 enlisted in the Regular Army on or about 6 July 1949.  He attained the rank of sergeant major, pay grade E-9, and retired due to length of service on 31 August 1969.  The FSM died on 20 November 2001.

3.  In a letter dated 23 September 2002, DFAS informed the applicant that her SF 1174 required signatures from two witnesses; her signature on the reverse side; and her social security number which was written on the front of the letter.

4.  The applicant completed an SF 1174 dated 19 November 2002 which shows signatures from two witnesses and her signature.

5.  In a letter dated 24 July 2012, DFAS informed the applicant that her request for unpaid compensation from the military retired pay account of the FSM could not be paid because it had been more than 6 years since the FSM's death and now exceeds the statute of limitations.  She was also informed that she could apply to the U.S. Army for a waiver of the 6-year statute of limitations.

6.  The email communications between DFAS and the applicant, dated in February 2013, state that DFAS had sent a letter to each of the FSM's four children requesting them to complete the enclosed form and return it to DFAS.  Three of the children did so, but the applicant's response was never received.  She was advised that her only option was to request a waiver of the 6-year statute of limitations as stated in the letter dated 24 July 2012.

7.  On 9 February 2013, the applicant submitted a letter to the Secretary of the Army requesting a waiver of the 6-year statute of limitations so her claim can be paid.

8.  On 19 March 2013, the Director, Army Transition Office, HRC, responded to the applicant's letter discussed in the previous paragraph.  She was informed that the Reserve Component Retirement Branch does not have the authority to waive the 6-year statute of limitations for unpaid compensation for retired pay.  She was further informed that she could appeal her case to this Board, and was provided an application.

9.  Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government.  In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim.  Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims.  In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the FSM's military records should be corrected by showing that she filed a timely and properly-constituted claim for the FSM's unpaid compensation.

2.  The available documents show that the FSM died in 2001 and that three of the four children had filed for unclaimed compensation in 2002.  It appears the applicant's original claim was not received.  Furthermore, her subsequent claims were incomplete and received after the 6-year statute of limitations had run its course.

3.  It appears there were administrative errors compounded by misinformation given to the applicant about where to file her request for assistance with this problem.

4.  Therefore, it would be appropriate to correct the records to show that the applicant had filed a properly-constituted SF 1174 within the 6-year statute of limitations and that she be paid accordingly.



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:

	a.  showing the applicant filed a properly-constituted SF 1174 for the FSM’s unpaid compensation within the 6-year statute of limitations; and 

	b.  paying her accordingly.



      ___________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)                                         AR20130017630





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ABCMR Record of Proceedings (cont)                                         AR20130017630



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