B-260835 May 10, 1995

B-260835 May 10, 1995

Claim for Survivor Benefit Plan spousal annuity is barred by 31 U.S.C. Sec. 3702 since it was not filed within 6 years of the member's death and our Office has no authority to waive the Barring Act limitations.

The Honorable Steven Schiff Member, United States House of Representatives 625 Silver Avenue, SW Suite 140 Albuquerque, NM 87102

Dear Mr. Schiff:

This responds to your inquiry, dated March 6, 1995, on behalf of Helen Urquidez and her claim for a Survivor Benefit Plan (SBP) annuity as the spouse of Chief Petty Officer Bennie Maestas, USN (Retired) (Deceased). By settlement Z-2869510, January 25, 1995, our Claims Group found that her claim for an annuity was barred by 31 U.S.C. Sec. 3702 because it was not filed within 6 years after the claim accrued.

Mrs. Urquidez has requested reconsideration of the denial of her claim contending that she had contacted the Defense Finance and Accounting Service over a lengthy period of time but was not forwarded a packet of claim forms until after the 6-year period had expired. For the reasons below, we affirm the denial of the claim as time barred.

Mrs. Urquidez married Mr. Maestas on February 18, 1984, and he died on April 23, 1985. Two months previously, Mrs. Urquidez's daughter died suddenly. Following these deaths, Mrs. Urquidez underwent physical and emotional difficulties that led to periods of hospitalization. She indicates in her letter that she first became aware of her possible right to an annuity in September 1991. Her difficulties with the Defense Finance and Accounting Service began at that time, and extended for 2 years. She executed a claim for the SBP annuity on September 24, 1993, received at DFAS, Denver Center on October 16, 1993. Since the claim was not filed by April 23, 1991, 6 years after the member's death, both DFAS and our Claims Group found the claim was barred by section 3702(b).

Section 3702(b), the Barring Act, and Part 31.5 (a) of Title 4 of the Code of Federal Regulations bars consideration by our Office of any claim received more than 6 years after the claims accrued. The 6-year limit on the filing of claims is strict; filing within the 6-year period stands as a condition precedent to the right to have claims considered by our Office. Sergeant James W. Mobley, USAF, Retired, B-196632, Dec. 4, 1979. The law does not provide for exceptions that apply here, and allows us no discretion to create new exceptions no matter how deserving the circumstances may be.

Mrs. Urquidez states that she could not obtain correct information from DFAS concerning how to file a claim and she was not told there was a time limit in which to file such a claim. However, the fact that a claimant may have received inappropriate advice does not permit our Office to waive the limitations contained in the Barring Act. Application of the Barring Act to Annuity Claims, 71 Comp.Gen. 398 (1992). In this case, because Mrs. Urquidez's difficulties with DFAS did not arise until after the 6- year limit for her claim had expired, they are not useful to her as support for her effort to file a claim. In any event, the reasons why the claim was not submitted within 6 years of accrual and the substantive merits of the claim are not relevant, because we do not have authority to modify or waive the provisions of the Barring Act or make any exceptions to the time limitations it imposes. Carlton L. Shepard, Jr., B-204542, Nov. 30, 1981.

We trust this is responsive to your inquiry and we regret a more favorable reply may not be made.