IN THE CASE OF:	  

		BOARD DATE:	    22 May 2014

		DOCKET NUMBER:  AR20140000857 


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, a waiver of the 6-year barring statute so that she may be eligible to receive her share of the unpaid retirement compensation (arrears of pay) of her deceased father, a former service member (FSM).  

2.  The applicant states that in 2013 she received a letter from the Department of Veterans Affairs (VA), dated 1 July 2008.  The letter was sent to Melody in South Brighton, TN.  When she received this letter, she did not have any knowledge that she would be entitled to a portion of her deceased father's arrears of pay.  He died on 28 November 2005.  She resided in Florida at the time and had no contact with her father.  No one notified her that she would be due any money.

3.  The applicant provides:

* Letter from the Defense Finance and Accounting Service (DFAS)
* VA Form 21-4138 (Statement in Support of Claim)
* FSM's death certificate
* Her birth certificate
* Letter from the VA, dated 1 July 2008
* FSM's post-death adjusted rating decision

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Navy and in the U.S. Navy Reserve, the FSM enlisted in the Regular Army on 4 January 1957.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of staff sergeant (SSG)/E-6. 

2.  On 14 June 1973, in connection with his retirement, the FSM submitted a 
DD Form 1883 (Survivor Benefit Plan - Election Certificate).  He indicated he was married to Jean (date of marriage 7 September 1957) and they had 7 children: Michael, born in 1958; Debora, born in 1959; Tina, born in 1961; Dana (the applicant), born in 1963; Donna, born in 1963; Misty, born in 1966; and Melody born in 1966.  He indicated he wanted an annuity under the SBP, based on the full amount.  

3.  On 31 July 1973, he retired and he was placed on the Retired List in his retired rank/grade of SSG/E-5 on 1 August 1973. 

4.  The FSM died on 28 November 2005.  His death certificate shows his marital status as "Widowed" and the informant as his daughter Donna.  

5.  On 1 July 2008, by letter, the VA notified the FSM's daughter, Melody, that a special review of the FSM's claims file was mandated by court.  As a result of this review, he was entitled to retroactive payment of compensation from 16 November 1999 to 28 November 2005.  The letter further stated that the FSM's spouse had died and that she (Melody) would receive the amount of $5,783.00 which represents 1/7th of the total payment of $40,487.  

6.  On 19 November 2013, by letter, DFAS notified the applicant that her claim for unpaid compensation from the FSM's military retired pay could not be paid due to the statute of limitations (Title 31, U.S. Code, section 3702).  The FSM died on 28 November 2005 and the claim for unpaid compensation was received on 25 October 2013.  

7.  Arrears of Pay (AOP) is a one-time payment made to a beneficiary after the death of a retired service member.  The arrears of pay payment to the member's beneficiary will include:  the pro-rated amount of the member's final month’s pay, and any other money owed to the member at the time of death.  In most cases, the AOP will include the pro-rated amount of the member's final month's retirement pay.  This is because the member's entitlement to retirement pay ends on the date of the member's death.  When death is reported, DFAS will reclaim the member's final month's pay and audit the retired account.  The amount of the payment actually owed to the member will then be computed and given to the member's AOP Beneficiary.  The AOP Order of Precedence for Payment of Deceased Retirees is paid to one of their survivors in the following order:

	a.  Designated beneficiary, if the retiree designates a beneficiary in writing prior to his or her death;

	b.  Surviving spouse; 

	c.  Children and their descendants, including the following:

		(1)  Adopted Child: An adopted child is a legal heir in every state and, therefore, is entitled to payment of unpaid pay and allowances, if otherwise proper.  If the deceased retiree's child is adopted by others, the child is a beneficiary only in those states where an adopted child inherits from its natural father; 

		(2)  Stepchild: A stepchild is not an eligible beneficiary, unless adopted by the deceased retiree; and

		(3)  Illegitimate Child: An illegitimate child may not be paid unpaid pay and allowances of a deceased retiree, unless that child is recognized for inheritance purposes under the laws of the jurisdiction involved.

	d.  Father and mother in equal parts or, if either is dead, the survivor; 

	e.  Legal representative; and

	f.  Person entitled under the law of the deceased retiree's domicile (usually the state where the retiree permanently resided). 

8.  Title 31 U. S. Code (USC), section 3702, it 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 statutes 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 letter that Melody received in 2008 originated from the VA.  Issues and concerns regarding payment and/or receipt of VA compensation should be addressed to that agency.  VA records are not military records and are therefore not within the purview of this Board.  

2.  The FSM died on 28 November 2005.  DFAS does not have a beneficiary designation for his AOP.  As a result, the distribution of any unpaid compensation should be in the order of precedence.  Since the VA letter indicates the FSM's spouse has also died, the FSM's children become next in line to receive the AOP.  

3.  Although the applicant did not prove an error or an injustice, as a matter of equity only, she should be entitled to 1/7th of the FSM's AOP if his AOP had not already been paid.  The record should be corrected to show she timely filed for this entitlement.  

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined 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 timely submitted a claim for unpaid Arrears of Pay, DFAS timely received and processed her claim, and provide her 1/7th of the total Arrears of Pay if not already paid.



      _______ _   _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)                                         AR20140000857



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ABCMR Record of Proceedings (cont)                                         AR20140000857



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