BOARD DATE: 18 September 2014
DOCKET NUMBER: AR20140000554
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 World War II (WWII) veteran and retiree, requests payment of the retired pay his father was entitled to for the 7 days in April 2007 that preceded his death.
2. The applicant states the Defense Finance and Accounting Service (DFAS) continued to deposit pay retirement funds into his father's account for 3 months after his father's death. Five years later they demanded the estate pay it back but explained he, as executor of the estate, could apply for the partial month's pay that was due. When he applied, he was told he was barred by the 6-year statute of limitations and he would need to seek relief by applying to this Board.
3. The applicant provides copies of
* his personal statement, dated 20 December 2013 (summarized above)
* applicant's birth certificate
* his mother's 13 March 2007 death certificate
* Department of Veterans Affairs (VA) Form 40-1330 (Application for Standard Government Headstone or Marker)
* DFAS letter, dated 13 May 2012
* Department of the Treasury, Financial Management Service (FMS) Form 133 (Direct Deposit information), dated 14 February 2013
* applicant's letter to DFAS, dated 18 July 2013
* DFAS letter, dated 5 August 2013
* applicant's letter to Army Review Boards Agency (ARBA), dated 12 August 2013
* ARBA letter to applicant, dated 13 November 2013
* WD AGO Form 53-98-WS (Work Sheet Report of Separation, WD AGO Form 53-98)
CONSIDERATION OF EVIDENCE:
1. The deceased retiree was a World War II field artillery officer who was released from active duty and medically retired following a disabling foot injury from a German artillery shell. His WD AGO Form 53-98 (Military Record and Report of Separation and Certificate of Service) is not available; however, a work sheet was submitted by the applicant for consideration in this case.
2. The retiree died on 7 April 2007. In May 2013, DFAS informed the applicant that the retiree's bank account had been credited with three monthly retirement payments after his death, for the months of April, May, and June 2007. The deposited amount, which equaled $3650.25, had to be repaid to DFAS; however, DFAS indicated that the retirement pay due prior to the retiree's death might be available if a claim was filed.
3. In a letter dated 18 July 2013, the applicant explained that he had received the funds as the executor of his father's estate, had repaid the full amount and asked for payment of the partial monthly retired pay his father was due for the 7-day period preceding the date of his death (1-7 April 2007).
4. In a letter dated 5 August 2013, DFAS responded that the applicant's claim could not be paid since it was outside of the 6-year statute of limitations; however, he could seek relief by applying to this Board.
DISCUSSION AND CONCLUSIONS:
For DFAS to wait 6 years to raise the issue of overpayment and then invoke the 6-year statute of limitations on paying the amount that was due is a gross injustice and should be rectified.
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 submitted a timely request for the partial month's pay that was due the retiree and by remitting the amount due to the applicant.
_______ _ 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) AR20140000554
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