BNUMBER:  B-260207.2
DATE:  November 6, 1995
TITLE:  Sarah Dyson-Survivor Benefit Plan Annuity
Claim-Reconsideration

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Matter of:Sarah Dyson-Survivor Benefit Plan Annuity 
          Claim-Reconsideration

File:     B-260207.2

Date:     November 6, 1995

DIGEST

Prior decision that service member's widow was not entitled to 
Survivor Benefit Plan annuity where claim was filed more than 6 years 
after member's death and is barred by Barring Act is affirmed since 
inquiry by widow regarding annuity shortly after member's death was 
denied by the Air Force and had to be filed with our Office to toll 
the Barring Act, and the claim was not a non-doubtful claim at that 
time because the Court of Claims had not decided Barber v. United 
States, which held that widow was entitled to spousal coverage where 
member failed to elect such coverage and spouse was not notified of 
declination.

DECISION

Sarah Dyson requests reconsideration of our Office's denial of her 
claim for a Survivor Benefit Plan (SBP) annuity which was considered 
in our decision Survivor Benefit Plan Annuities and the Barring Act, 
B-260207, Apr. 18, 1995.  We affirm our prior decision.

James L. Dyson retired from the Air Force on January 1, 1978, and 
elected maximum "child only" SBP coverage even though married to Sarah 
Dyson at the time.  The member died on February 10, 1980.  Ms. Dyson 
requested a correction of the member's records and on June 14, 1994, 
the Air Force Board for the Correction of Military Records corrected 
the member's records to show that on December 31, 1977, he elected 
maximum spouse and child coverage, and that on March 9, 1980, his 
widow had submitted a claim for an annuity.

The Defense Finance and Accounting Service (DFAS) had requested our 
decision on the claims of Ms. Dyson and two other widows who asserted 
they had not been notified of their spouses failure to elect maximum 
spousal SBP coverage and were now entitled to such coverage under the 
ruling in Barber v. United States, 676 F.2d 651 (Ct. Cl. 1982).  At 
the time of the members' retirements in all three cases, the SBP law 
required that a member's spouse be "notified" if the member did not 
elect maximum SBP coverage for the spouse.  10 U.S.C.  1448(a)(3).  
In Barber, the Court of Claims held that if a spouse was not notified 
of the member's failure to make such an election, the spouse was 
entitled to an SBP annuity upon the member's death.  All three of the 
claims before our Office were filed more than 6 years following the 
members' deaths, which raised the question of the applicability of the 
Barring Act, 31 U.S.C.  3702(b).  That act requires that claims 
against the government be filed with our Office within 6 years of when 
the claims arose.  All three of the claimants had also had the 
deceased members' records corrected by the applicable Boards for the 
Correction of Military Records to show that the member had elected 
full SBP coverage for his spouse.

In Hart v. United States, 910 F.2d 815 (Fed. Cir. 1990), the Court of 
Appeals for the Federal Circuit found that annuity claims generally 
accrue at the time of the member's death, that such claims are not 
"continuing claims",[1] and that they therefore do not delay the 
running of the applicable 6-year statute of limitations in 28 U.S.C.  
2501.[2]

In our April 18, 1995, decision, we found that the actions by the 
various Boards for the Correction of Military Records in correcting 
the members' records to show that at the time of retirement, the 
members elected full spousal coverage, were ineffective in overcoming 
the application of the Barring Act to the claims because they did not 
create a new entitlement.  Under Barber, the spouses automatically had 
coverage upon the death of the members and the actions of the boards 
did not create a new entitlement because the spouses already had the 
coverage sought to be created by the record change.

We also held that the boards record corrections showing that the 
widows' had filed a claim with the service shortly after the members' 
deaths were also ineffective to overcome the Barring Act because the 
correction did not involve a member's service or actions he took while 
a member of a uniformed service.

Therefore, we found that the claims, including that of Ms. Dyson, were 
barred by 31 U.S.C.  3702(b) since they were filed more than 6 years 
after the members' deaths.  In the case of Ms. Dyson, however, we 
noted that there was an inconsistency in the documents because DFAS 
records show that the first inquiry it received from Ms. Dyson was in 
a February 20, 1987, letter.  We found that since Ms. Dyson's claim 
accrued in 1980, prior to June 15, 1983, the date in the amended 
regulations implementing the Barring Act, precluded consideration of 
filings with other than our Office to toll the Barring Act.[3]

In the request for reconsideration, Ms. Dyson contends that she asked 
the Air Force through her congressional representative in either late 
1980 or early 1981 about SBP.  She contends that the Air Force should 
have paid her under the ruling in Barber without any need to submit 
her claim to our Office as a doubtful claim.  Citing 71 Comp. Gen. 
398, at 402 (1992), she contends that her claim is not barred.

The critical fact here is that the Air Force did not pay the claim, 
regardless of the reason and therefore, to toll the Barring Act, a 
filing with our Office was necessary.  In 71 Comp. Gen. 398, we stated 
that, where a Barring Act application is required on an agency-settled 
claim, the date of the agency's receipt of the claim is the proper 
date on which to base it.  Moreover, we do not agree that Ms. Dyson's 
claim was non-doubtful at the time it was submitted to the Air Force 
in 1980 or 1981.  The Barber case was not decided until April 7, 1982.  
Before that date, the consequences of the services' failure to notify 
a spouse of a member's failure to elect full spousal coverage had not 
been decided by a court so there was no guidance for the Air Force in 
these circumstances.

We affirm our prior decision.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. The "continuing claim" doctrine stands for the proposition that, 
where the government owes plaintiffs a continuing duty, a new cause of 
action arises with every breach of that duty.

2. In 71 Comp. Gen. 398 (1992), we noted that 28 U.S.C.  2501 and 31 
U.S.C.  3702(b) have essentially the same purpose and should be 
similarly applied by GAO and the courts in the resolution of claims 
against the government.

3. The regulations implementing 31 U.S.C.  3702(b) were revised on 
June 15, 1989, to provide that the requirements of the statute will be 
satisfied by timely filing with the agency involved as well as with 
our Office.  However, the regulation precludes consideration of any 
claims which were barred prior to June 15, 1989, i.e. accrued prior to 
June 15, 1983.