B-202610.OM, DEC 16, 1981

B-202610.OM: Dec 16, 1981

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DIGEST: THROUGH ERROR A CIVIL SERVICE ANNUITANT IN 1972 WAIVED HIS MILITARY RETIRED PAY IN ORDER TO HAVE HIS PRIOR MILITARY SERVICE CREDITED FOR CIVIL SERVICE ANNUITY COMPUTATION PURPOSES. THE COMPTROLLER GENERAL: WE ARE FORWARDING THE CLAIM OF CAPTAIN JAMES O. HE WAS RETIRED FROM THE FAA FOR DISABILITY. HE WAS ADVANCED TO THE GRADE OF CAPTAIN ON THE USAF RETIRED LIST. THE OVERPAYMENTS RESULTING FROM THE ADJUSTMENT IN CIVIL SERVICE ANNUITY WERE TO BE DEDUCTED FROM HIS FUTURE ANNUITY. IS BARRED BY THE ACT OF OCTOBER 9. RESEARCH HAS INDICATED THAT A REVOCATION OF A WAIVER MAY BE ALLOWED WHEN ELIGIBILITY FOR ANNUITY IS NOT BASED UPON MILITARY SERVICE. IT IS NOT CLEAR WHETHER A REVOCATION OF THE WAIVER WHICH CAPTAIN NICKELL IS CLAIMING MAY BE MADE RETROACTIVE.

B-202610.OM, DEC 16, 1981

DIGEST: THROUGH ERROR A CIVIL SERVICE ANNUITANT IN 1972 WAIVED HIS MILITARY RETIRED PAY IN ORDER TO HAVE HIS PRIOR MILITARY SERVICE CREDITED FOR CIVIL SERVICE ANNUITY COMPUTATION PURPOSES. IN 1980 HE REVOKED THE WAIVER, AND THE OFFICE OF PERSONNEL MANAGEMENT RETROACTIVELY REDUCED HIS ANNUITY. ANNUITANT'S RESULTING CLAIM FOR RETROACTIVE PAYMENT OF MILITARY RETIRED PAY MAY BE ALLOWED, SUBJECT TO 6-YEAR STATUTE OF LIMITATIONS OF 31 U.S.C. 71A, SINCE DUAL RETIREMENT BENEFITS FOR THE SAME PERIOD OF MILITARY SERVICE WOULD NOT RESULT FROM SUCH PAYMENT.

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF CAPTAIN JAMES O. NICKELL, USAF, RETIRED, FOR RETROACTIVE PAY ADJUSTMENT AS A RESULT OF THE REVOCATION OF HIS WAIVER OF MILITARY RETIRED PAY IN ORDER TO RECEIVE CIVIL SERVICE ANNUITY BASED ON HIS COMBINED SERVICE.

CAPTAIN NICKELL RETIRED FROM THE AIR FORCE ON JUNE 30, 1962, UNDER 10 U.S.C. 8914. ON MARCH 21, 1972, HE WAS RETIRED FROM THE FAA FOR DISABILITY. HE WAIVED HIS MILITARY RETIREMENT PAY TO RECEIVE A CIVIL SERVICE ANNUITY BASED ON HIS TOTAL SERVICE, EFFECTIVE MARCH 21, 1972. APRIL 26, 1972, HE WAS ADVANCED TO THE GRADE OF CAPTAIN ON THE USAF RETIRED LIST, BY REASON OF COMPLETING 30 YEARS OF SERVICE. SUBSEQUENT TO THIS, ON MAY 6, 1980, CAPTAIN NICKELL REQUESTED A REVOCATION OF HIS WAIVER OF RETIRED PAY, EFFECTIVE APRIL 26, 1972.

THE OFFICE OF PERSONNEL MANAGEMENT HAD COMPLIED WITH HIS REQUEST AND INFORMED CAPTAIN NICKELL THAT A RECOMPUTATION OF HIS CIVIL SERVICE ANNUITY HAD BEEN MADE, EFFECTIVE APRIL 26, 1972. THE OVERPAYMENTS RESULTING FROM THE ADJUSTMENT IN CIVIL SERVICE ANNUITY WERE TO BE DEDUCTED FROM HIS FUTURE ANNUITY.

THE OFFICE OF PERSONNEL MANAGEMENT ADJUSTED CIVIL SERVICE ANNUITY RETROACTIVE TO MARCH 21, 1972, AS REQUESTED BY CAPTAIN NICKELL. HOWEVER, IN VIEW OF THE FACT THAT WE RECEIVED HIS CLAIM ON OCTOBER 24, 1980, ANY ADJUSTMENT OF RETIRED PAY PRIOR TO OCTOBER 24, 1974, IS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS AMENDED.

RESEARCH HAS INDICATED THAT A REVOCATION OF A WAIVER MAY BE ALLOWED WHEN ELIGIBILITY FOR ANNUITY IS NOT BASED UPON MILITARY SERVICE. SEE B-170098, JANUARY 17, 1973. HOWEVER, IT IS NOT CLEAR WHETHER A REVOCATION OF THE WAIVER WHICH CAPTAIN NICKELL IS CLAIMING MAY BE MADE RETROACTIVE, THEREBY RESULTING IN PAYMENT OF ADDITIONAL RETIRED PAY.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. IT APPEARS THAT MR. NICKELL INITIALLY ENTERED MILITARY SERVICE IN 1942 WHEN HE WAS 21 YEARS OLD. HE WAS RETIRED FROM MILITARY SERVICE IN 1962 IN THE GRADE OF SENIOR MASTER SERGEANT (E-8), UNITED STATES AIR FORCE, UNDER THE AUTHORITY OF 10 U.S.C. 8914 BASED ON HIS COMPLETION OF 20 YEARS' ACTIVE DUTY. HE THEN BEGAN DRAWING RETIRED PAY FROM THE AIR FORCE AS A RETIRED E-8.

FOLLOWING HIS 1962 RETIREMENT FROM MILITARY SERVICE, MR. NICKELL OBTAINED CIVIL SERVICE EMPLOYMENT AS AN AIR TRAFFIC CONTROLLER WITH THE FEDERAL AVIATION ADMINISTRATION. HE WAS RETIRED FROM THAT CIVIL SERVICE POSITION ON MARCH 21, 1972, IN GRADE GS-10, STEP 7, UNDER THE AUTHORITY OF 5 U.S.C. 8337 ON GROUNDS OF DISABILITY. HE THEN BECAME ENTITLED TO PAYMENT OF A CIVIL SERVICE ANNUITY, INDEPENDENTLY OF AND IN ADDITION TO THE MILITARY RETIRED PAY HE WAS ALREADY RECEIVING.

MR. NICKELL WAIVED HIS MILITARY RETIRED PAY EFFECTIVE MARCH 21, 1972, SO THAT HIS 20 YEARS OF ACTIVE MILITARY DUTY COULD BE INCLUDED AS CREDITABLE SERVICE IN THE COMPUTATION OF HIS CIVIL SERVICE ANNUITY. ON THAT DATE, HIS AIR FORCE E-8 RETIRED PAY BASED ON HIS MILITARY SERVICE BETWEEN 1942 AND 1962, TOGETHER WITH HIS CIVIL SERVICE ANNUITY BASED SOLELY ON HIS CIVILIAN EMPLOYMENT THEREAFTER, WOULD HAVE BEEN LESS THAN HIS CIVIL SERVICE ANNUITY COMPUTED ON THE BASIS OF HIS TOTAL FEDERAL SERVICE BETWEEN 1942 AND 1972. CONSEQUENTLY, ON THAT DATE, IT WAS TO HIS ADVANTAGE TO WAIVE HIS MILITARY RETIRED PAY AND HAVE HIS YEARS OF MILITARY AND CIVIL SERVICE COMBINED FOR PURPOSES OF THE COMPUTATION OF HIS CIVIL SERVICE ANNUITY.

IN THE COURSE OF HIS ACTIVE MILITARY SERVICE BETWEEN 1942 AND 1962, MR. NICKELL HAD AT ONE TIME BEEN APPOINTED TO THE TEMPORARY GRADE OF CAPTAIN (0-3). ON APRIL 26, 1972, HE WAS ADVANCED ON THE AIR FORCE RETIRED LIST FROM THE GRADE OF SENIOR MASTER SERGEANT (E-8) TO THE GRADE OF CAPTAIN (0- 3) UNDER THE AUTHORITY OF 10 U.S.C. 8964. THAT LAW AUTHORIZES THE ADVANCEMENT OF A RETIRED AIR FORCE ENLISTED MEMBER TO THE HIGHEST TEMPORARY ACTIVE DUTY GRADE SATISFACTORILY HELD WHEN HIS ACTIVE SERVICE PLUS HIS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS. ALSO, IN ACCORDANCE WITH 10 U.S.C. 8992, HE THEN BECAME ELIGIBLE TO HAVE HIS MILITARY RETIRED PAY RECOMPUTED PROSPECTIVELY AT THE HIGHER RATE PRESCRIBED FOR AN 0-3. BECAUSE OF THIS IT WOULD HAVE BEEN TO MR. NICKELL'S ADVANTAGE TO REVOKE HIS WAIVER OF MILITARY RETIRED PAY EFFECTIVE APRIL 26, 1972, AND TO HAVE HIS YEARS OF MILITARY SERVICE WITHDRAWN FROM THE COMPUTATION USED TO CALCULATE HIS CIVIL SERVICE ANNUITY. HOWEVER, HE DID NOT REVOKE HIS WAIVER OF MILITARY RETIRED PAY AT THAT TIME.

EVENTUALLY, IN 1980, IT APPARENTLY OCCURRED TO MR. NICKELL THAT HIS TOTAL MONETARY RETIREMENT BENEFITS WOULD HAVE BEEN ENHANCED IF HE HAD REVOKED HIS WAIVER OF MILITARY RETIRED PAY EFFECTIVE APRIL 26, 1972. BY LETTER DATED MAY 6, 1980, MR. NICKELL ADVISED THE OFFICE OF PERSONNEL MANAGEMENT THAT HE WISHED TO REVOKE HIS WAIVER OF MILITARY RETIRED PAY, AND TO HAVE HIS CIVIL SERVICE RETIREMENT ANNUITY RECOMPUTED FROM AND AFTER APRIL 26, 1972, BASED SOLELY ON HIS CIVILIAN EMPLOYMENT AND WITHOUT CREDIT FOR HIS YEARS OF MILITARY SERVICE. THE OFFICE OF PERSONNEL MANAGEMENT COMPLIED WITH HIS REQUEST AND THEN INFORMED THE AIR FORCE ACCOUNTING AND FINANCE CENTER IN DENVER OF THAT ACTION. MR. NICKELL'S REQUEST FOR THE RETROACTIVE REVOCATION OF HIS WAIVER OF MILITARY RETIRED PAY WAS FIRST RECEIVED AND RECORDED IN OUR OFFICE AT THE GAO AUDIT SITE IN DENVER ON OCTOBER 24, 1980.

AIR FORCE OFFICIALS HAVE EXPRESSED DOUBT CONCERNING THE PROPRIETY OF COMPLYING WITH MR. NICKELL'S REQUEST. ESSENTIALLY, THEY QUESTION WHETHER HE MAY PROPERLY REVOKE HIS WAIVER OF MILITARY RETIRED PAY RETROACTIVELY, AND IF SO, WHETHER THE 6-YEAR STATUTE OF LIMITATIONS PRESCRIBED BY 31 U.S.C. 71A WOULD OPERATE TO BAR PAYMENT OF MILITARY RETIRED PAY TO HIM FOR THE PERIOD FROM APRIL 26, 1972, TO OCTOBER 24, 1974.

SUBSECTION 8347(A) OF TITLE 5, U.S.C. PROVIDES THAT THE OFFICE OF PERSONNEL MANAGEMENT SHALL ADMINISTER THE CIVIL SERVICE RETIREMENT PROGRAM AND PRESCRIBE SUCH REGULATIONS AS ARE NECESSARY AND PROPER TO CARRY OUT THE PROVISIONS OF LAW AUTHORIZED IN THAT PROGRAM. SUBSECTION 8332(C) OF TITLE 5 PROVIDES, INSOFAR AS IS HERE MATERIAL, THAT AN EMPLOYEE SHALL BE ALLOWED CREDIT FOR PERIODS OF MILITARY SERVICE, BUT THAT "HIS MILITARY SERVICE MAY NOT BE CREDITED" IF HE IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE. REGULATIONS IMPLEMENTING SUBSECTION 8332(C) WHICH HAVE BEEN ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT PROVIDE THAT AN APPLICANT FOR A CIVIL SERVICE ANNUITY WHO IS IN RECEIPT OF RETIRED PAY WHICH BARS CREDIT FOR HIS MILITARY SERVICE MAY ELECT TO SURRENDER THE RETIRED PAY AND TO HAVE HIS MILITARY SERVICE ADDED TO HIS PERIOD OF CIVILIAN SERVICE FOR THE PURPOSE OF OBTAINING A GREATER BENEFIT IN THE FORM OF ANNUITY. SEE SUBSECTION 831.301(B), APPENDIX G, FEDERAL PERSONNEL MANUAL SUPPLEMENT, MAY 15, 1978 (CURRENT), AND 1963 ED. (SUPERSEDED).

WE HAVE LONG RECOGNIZED THAT THE OFFICE OF PERSONNEL MANAGEMENT (FORMERLY CIVIL SERVICE COMMISSION) HAS EXCLUSIVE JURISDICTION FOR ADMINISTERING MATTERS ARISING UNDER THE CIVIL SERVICE RETIREMENT SYSTEM, THAT THE ABOVE CITED REGULATIONS ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT ARE CONSISTENT WITH THE STATUTORY PROVISIONS OF 5 U.S.C. 8332(C), AND THAT THE REGULATIONS THEREFORE HAVE THE FORCE OF LAW AND PROVIDE THE LEGAL AUTHORITY TO PERMIT WAIVER OF MILITARY RETIRED PAY FOR CIVIL SERVICE RETIREMENT PURPOSES. SEE, E.G., 49 COMP.GEN. 581 (1970). ON THE OTHER HAND, QUESTIONS CONCERNING ENTITLEMENT TO MILITARY RETIRED PAY ARE FOR DETERMINATION BY OUR OFFICE. WE HAVE AS A GENERAL RULE HELD THAT IF AN INDIVIDUAL HAS WAIVED MILITARY RETIRED PAY FOR CIVIL SERVICE ANNUITY PURPOSES UNDER THE ABOVE-CITED STATUTES AND REGULATIONS, HE MAY REVOKE THAT WAIVER AT ANY TIME AND REGAIN ENTITLEMENT TO THE MILITARY RETIRED PAY, PROVIDED THAT THIS WILL NOT PRODUCE DOUBLE RETIREMENT BENEFITS BASED ON THE SAME PERIOD OF MILITARY SERVICE. SEE 52 COMP.GEN. 429 (1973); 50 ID. 80 (1970); 49 ID. 581 (1970); 41 ID. 460 (1962).

IN THE PRESENT CASE, THE OFFICE OF PERSONNEL MANAGEMENT GRANTED MR. NICKELL'S REQUEST THAT HIS WAIVER OF MILITARY RETIRED PAY BE REVOKED EFFECTIVE APRIL 26, 1972, AND HIS CIVIL SERVICE ANNUITY HAS BEEN RETROACTIVELY REDUCED THROUGH THE DELETION OF CREDIT FOR HIS YEARS OF MILITARY SERVICE. IN THESE CIRCUMSTANCES, SINCE RETROACTIVE PAYMENT OF MILITARY RETIRED PAY TO MR. NICKELL WOULD NOT PRODUCE DUAL RETIREMENT BENEFITS FOR HIM BASED ON THE SAME PERIOD OF MILITARY SERVICE, WE HAVE NO OBJECTION TO HIS WAIVER REVOCATION BEING APPLIED RETROACTIVELY.

HOWEVER, SECTION 71A OF TITLE 31, U.S.C. PROVIDES IN PERTINENT PART THAT:

"(1) EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN 6 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED ***."

PAYMENT OF MILITARY RETIRED PAY RETROACTIVELY IS SUBJECT TO THIS 6-YEAR STATUTORY LIMITATION PERIOD FROM THE DATE THE DEMAND FOR PAYMENT IS RECEIVED IN OUR OFFICE, AND THIS IS SO EVEN IN CASES INVOLVING MISTAKES OR ERRORS IN THE WAIVER OF RETIRED PAY. SEE, E.G., B-197603, AUGUST 21, 1980; B-191052, MARCH 30, 1978. HENCE, MR. NICKELL'S WAIVER REVOCATION AND REQUEST FOR RETROACTIVE PAYMENT OF MILITARY RETIRED PAY IS SUBJECT TO THE 6-YEAR LIMITATION PERIOD PRESCRIBED BY 31 U.S.C. 71A. SINCE HIS REQUEST WAS FIRST RECEIVED IN OUR OFFICE ON OCTOBER 24, 1980, WE ARE PRECLUDED FROM MAKING PAYMENT TO HIM OF AMOUNTS OF RETIRED PAY ACCRUING TO HIS CREDIT MORE THAN 6 YEARS PRIOR TO THAT DATE; I.E., PRIOR TO OCTOBER 24, 1974.

ACCORDINGLY, PAYMENT OF MILITARY RETIRED PAY RETROACTIVE TO OCTOBER 24, 1974, MAY ISSUE TO MR. NICKELL, BUT PAYMENT FOR PERIODS PRIOR TO THAT DATE IS BARRED BY OPERATION OF THE 6-YEAR STATUTE OF LIMITATIONS, 31 U.S.C. 71A. BECAUSE OF THE EFFECT OF THE STATUTE OF LIMITATIONS, MR. NICKELL MAY WISH, FOR CIVIL SERVICE ANNUITY PURPOSES, TO HAVE THE EFFECTIVE DATE OF HIS WAIVER REVOCATION CHANGED FROM APRIL 26, 1972, TO OCTOBER 24, 1974. THE GRANTING OF ANY SUCH CHANGE, HOWEVER, WOULD BE A MATTER WITHIN THE EXCLUSIVE JURISDICTION OF THE OFFICE OF PERSONNEL MANAGEMENT.