Sarah Dyson-Survivor Benefit Plan Annuity

B-260207.2 Nov 06, 1995 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 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. The claim was not a non-doubtful claim at that time because the Court of Claims had not decided Barber v. 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. View Decision Matter of: Sarah Dyson-Survivor Benefit Plan Annuity Claim-Reconsideration File: B-260207.2 Date: November 6, 1995 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. Sec. 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. Sec. 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. Sec. 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.