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.