B-211778, DECEMBER 5, 1983, 63 COMP.GEN. 82

B-211778: Dec 5, 1983

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THE INDIVIDUAL IS NOT ENTITLED TO RETIRED PAY ON THE BASIS OF THE ERRONEOUS ADVICE. NOTWITHSTANDING THAT BY STATUTE THE ARMED FORCES ARE REQUIRED TO NOTIFY RESERVISTS WHEN THEY HAVE COMPLETED 20 YEARS' CREDITABLE SERVICE AND THAT SUCH NOTIFICATION IS IRREVOCABLE. 1983: THE QUESTION PRESENTED IN THIS CASE /1/ IS WHETHER MR. NAHRSTEDT IS ENTITLED TO MILITARY RESERVE RETIRED PAY ON THE BASIS OF ERRONEOUS ADVICE HE RECEIVED FROM AN ARMY PERSONNEL OFFICER INDICATING THAT HE HAD COMPLETED A SUFFICIENT NUMBER OF YEARS OF CREDITABLE MILITARY SERVICE TO QUALIFY FOR RETIRED PAY. NAHRSTEDT IS NOT ENTITLED TO THE RETIRED PAY IN QUESTION. NAHRSTEDT WAS BORN ON MARCH 7. HE ENLISTED IN THE NAVY IN MARCH 1942 AND SERVED ON ACTIVE DUTY ALMOST CONTINUOUSLY DURING THE FOLLOWING 3 YEARS AND 9 MONTHS UNTIL HE WAS DISCHARGED IN DECEMBER 1945.

B-211778, DECEMBER 5, 1983, 63 COMP.GEN. 82

PAY - RETIRED - RESERVISTS - ERRONEOUS NOTIFICATION OF ELIGIBILITY - WHAT CONSTITUTES AT VARIOUS TIMES BETWEEN 1940 AND 1959 AN INDIVIDUAL SERVED FULL TIME ACTIVE DUTY, AND PARTICIPATED SATISFACTORILY IN PART-TIME RESERVE PROGRAMS, WITH BOTH THE ARMY AND THE NAVY. HOWEVER, HE COMPLETED A TOTAL OF ONLY 7 OF THE 20 YEARS' CREDITABLE SERVICE REQUIRED TO ESTABLISH ENTITLEMENT TO RESERVE RETIRED PAY AT AGE 60. YEARS LATER IN 1979 AN ARMY PERSONNEL OFFICER INFORMALLY AND ERRONEOUSLY ADVISED THE INDIVIDUAL THAT HE WOULD BE ELIGIBLE FOR RETIRED PAY WHEN HE REACHED AGE 60. THE INDIVIDUAL IS NOT ENTITLED TO RETIRED PAY ON THE BASIS OF THE ERRONEOUS ADVICE, NOTWITHSTANDING THAT BY STATUTE THE ARMED FORCES ARE REQUIRED TO NOTIFY RESERVISTS WHEN THEY HAVE COMPLETED 20 YEARS' CREDITABLE SERVICE AND THAT SUCH NOTIFICATION IS IRREVOCABLE, SINCE THE INFORMAL ERRONEOUS ADVICE PLAINLY DID NOT CONSTITUTE AN OFFICIAL STATUTORY NOTICE OF COMPLETED SERVICE.

MATTER OF: ROBERT E. NAHRSTEDT, DECEMBER 5, 1983:

THE QUESTION PRESENTED IN THIS CASE /1/ IS WHETHER MR. ROBERT E. NAHRSTEDT IS ENTITLED TO MILITARY RESERVE RETIRED PAY ON THE BASIS OF ERRONEOUS ADVICE HE RECEIVED FROM AN ARMY PERSONNEL OFFICER INDICATING THAT HE HAD COMPLETED A SUFFICIENT NUMBER OF YEARS OF CREDITABLE MILITARY SERVICE TO QUALIFY FOR RETIRED PAY. WE CONCLUDE THAT MR. NAHRSTEDT IS NOT ENTITLED TO THE RETIRED PAY IN QUESTION.

BACKGROUND

MR. NAHRSTEDT WAS BORN ON MARCH 7, 1923. RECORDS MAINTAINED BY THE DEPARTMENT OF THE ARMY REFLECT THAT HE SERVED FOR 6 MONTHS AS AN ENLISTED MEMBER OF THE ARMY NATIONAL GUARD FROM APRIL TO OCTOBER 1940, AND THAT HE PERFORMED 21 DAYS OF ACTIVE DUTY DURING AUGUST 1940. SUBSEQUENTLY, HE ENLISTED IN THE NAVY IN MARCH 1942 AND SERVED ON ACTIVE DUTY ALMOST CONTINUOUSLY DURING THE FOLLOWING 3 YEARS AND 9 MONTHS UNTIL HE WAS DISCHARGED IN DECEMBER 1945. THEREAFTER, HE HAD NO MILITARY STATUS UNTIL JANUARY 1952, WHEN HE RECEIVED AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE ARMY NATIONAL GUARD. HE THEN SERVED ON FULL-TIME ACTIVE DUTY AS A GUARD OFFICER UNTIL JANUARY 1954, A PERIOD OF 2 YEARS. BETWEEN 1954 AND 1958 HE DID NOT ACTIVELY PARTICIPATE IN ANY GUARD OR RESERVE PROGRAM, BUT HE RETAINED HIS COMMISSION AND WAS PLACED IN AN INACTIVE NATIONAL GUARD STATUS. IN JANUARY 1958, HE TRANSFERRED FROM THE ARMY NATIONAL GUARD TO THE ARMY RESERVE. DURING 1958 HE PERFORMED 2 WEEKS OF ACTIVE DUTY FOR TRAINING AND PARTICIPATED IN EIGHT INACTIVE DUTY WEEKEND DRILL PERIODS AS A RESERVE OFFICER, AND HE RECEIVED CREDIT FOR 1 YEAR OF SATISFACTORY SERVICE AS A RESERVIST FOR RETIREMENT PURPOSES. IN THE FOLLOWING YEAR, 1959, HE ALSO PERFORMED 2 WEEKS OF ACTIVE DUTY, BUT HE PARTICIPATED IN ONLY ONE WEEKEND DRILL PERIOD AND CONSEQUENTLY WAS NOT CREDITED WITH A YEAR OF SATISFACTORY SERVICE. HE THEN CEASED PARTICIPATING IN RESERVE ACTIVITIES COMPLETELY, BUT HE RETAINED HIS COMMISSION AND HIS STATUS AS AN OFFICER OF THE ARMY RESERVE. IN 1961 HE APPLIED FOR TRANSFER TO THE RETIRED RESERVE IN THE COMMISSIONED GRADE HE THEN HELD, CAPTAIN (0-3), AND HE WAS SO TRANSFERRED THE FOLLOWING YEAR. ON THE BASIS OF THESE RECORDS, ARMY OFFICIALS LATER IN 1980 COMBINED ALL OF MR. NAHRSTEDT'S CREDITABLE MILITARY AND NAVAL SERVICE, AND ARRIVED AT THE CONCLUSION THAT HE HAD COMPLETED ONLY 7 YEARS AND 3 MONTHS OF SATISFACTORY SERVICE CREDITABLE FOR THE PURPOSE OF ESTABLISHING ELIGIBILITY FOR RESERVE RETIRED PAY.

BY CORRESPONDENCE DATED JANUARY 5, 1979, MR. NAHRSTEDT HAD ASKED THE ARMY RESERVE COMPONENTS PERSONNEL AND ADMINISTRATION CENTER, ST. LOUIS, MISSOURI, ABOUT HIS ELIGIBILITY FOR RETIRED PAY. ALSO, HE APPARENTLY CALLED THE CENTER BY TELEPHONE TO DISCUSS THE MATTER. HE SUBSEQUENTLY RECEIVED A HANDWRITTEN POSTCARD DATED APRIL 4, 1979, SIGNED BY AN ARMY PERSONNEL OFFICER STATING THAT HE WOULD BE ELIGIBLE TO RECEIVE RETIRED PAY BEGINNING IN MARCH 1983 WHEN HE REACHED AGE 60. ARMY OFFICIALS INDICATE THAT THE CENTER USES HANDWRITTEN POSTCARDS IN RESPONDING TO INFORMAL TELEPHONE INQUIRIES. IN MAY 1979 IN RESPONSE TO FURTHER INQUIRIES BY MR. NAHRSTEDT, THE PERSONNEL OFFICER ALSO SENT HIM A LETTER STATING, "ENCLOSED YOU WILL FIND A TRANSCRIPT OF MASTER PERSONNEL RECORD AND CHART USED IN COMPUTING RETIREMENT PAY." HOWEVER, THAT TRANSCRIPT WAS AN INCOMPLETE COMPUTER PRINTOUT THAT DID NOT SHOW MR. NAHRSTEDT'S PERIODS OF CREDITABLE SERVICE. IT IS NOT OTHERWISE INDICATED THAT THE PERSONNEL OFFICER BASED HIS ADVICE ON AN EXAMINATION OF THE RECORDS OR ANYTHING EXCEPT INFORMATION PERSONALLY PROVIDED BY MR. NAHRSTEDT.

IN MAY 1980 THE DEPUTY DIRECTOR FOR RETIRED ACTIVITIES OF THE ARMY RESERVE COMPONENTS PERSONNEL AND ADMINISTRATION CENTER WROTE TO MR. NAHRSTEDT TO ADVISE HIM THAT HIS UNDERLYING MILITARY AND NAVAL PERSONNEL RECORDS HAD BEEN REVIEWED, AND THAT:

TO BE ELIGIBLE FOR RETIRED PAY AT AGE 60 UNDER TITLE 10, U.S. CODE, SECTION 1331-1337, YOU MUST HAVE COMPLETED A MINIMUM OF 20 QUALIFYING YEARS OF SERVICE. BECAUSE YOU COMPLETED LESS THAN 20 QUALIFYING YEARS, YOU ARE NOT ELIGIBLE FOR RETIRED PAY. AFTER SOME INTERVENING CORRESPONDENCE, MR. NAHRSTEDT WROTE TO THE CENTER IN OCTOBER 1982, AND WHILE HE APPARENTLY CONCEDED THAT HE HAD NOT COMPLETED THE REQUISITE 20 YEARS' SERVICE, HE SAID, "I STILL FEEL THAT I SHOULD BE GRANTED BENEFITS UNDER TITLE 10 U.S.C. SECTION 1406 ON WHATEVER YEARS AND POINTS THAT YOU HAVE DETERMINED TO EXIST AT THIS TIME."

ISSUE PRESENTED

IN REQUESTING OUR DECISION IN THIS MATTER. ARMY OFFICIALS ESSENTIALLY QUESTION WHETHER, ON THE BASIS OF THE ERRONEOUS ADVICE MR. NAHRSTEDT RECEIVED IN 1979 FROM THE PERSONNEL OFFICER ABOUT HIS ELIGIBILITY FOR RESERVE RETIRED PAY, HE MAY NOW BE ALLOWED RETIRED PAY PREDICATED ON THE PROVISIONS OF 10 U.S.C. 1406. THE ARMY OFFICIALS NOTE THAT IN MATTER OF CASSEDY, 58 COMP.GEN. 390 (1979), WE EXPRESSED THE VIEW THAT A RETIRED RESERVIST COULD BASE ENTITLEMENT TO RETIRED PAY UNDER THAT STATUTE ON AN ERRONEOUS NOTICE VERIFYING THE COMPLETION OF 20 YEARS OF CREDITABLE SERVICE, IN THE ABSENCE OF ANY EVIDENCE THAT THE RESERVIST CAUSED THE SERVICE RECORDS TO BE ALTERED OR INDUCED THE ERRONEOUS NOTICE TO BE SENT.

APPLICABLE STATUTES

AS INDICATED, THE LAWS GOVERNING ELIGIBILITY FOR MILITARY RETIRED PAY BASED ON NON-REGULAR SERVICE ARE CONTAINED IN CHAPTER 67 OF TITLE 10 OF THE UNITED STATES CODE; THAT IS, 10 U.S.C. 1331-1337. UNDER THESE PROVISIONS, A RETIRED RESERVIST GENERALLY BECOMES ELIGIBLE FOR RETIRED PAY WHEN HE REACHED AGE 60 IF HE HAS PREVIOUSLY PERFORMED AT LEAST 20 YEARS OF CREDITABLE SERVICE. 10 U.S.C. 1331(A). CREDITABLE PERIODS OF SERVICE PERFORMED PRIOR TO JULY 1, 1949, INCLUDE PERIODS OF ACTIVE PARTICIPATION IN THE NATIONAL GUARD AND PERIODS OF FULL-TIME ACTIVE DUTY WITH ANY BRANCH OF THE ARMED FORCES, 10 U.S.C. 1332(A)(1). CREDITABLE SERVICE SINCE JULY 1, 1949, IS EACH 1-YEAR PERIOD IN WHICH A RESERVIST HAS BEEN CREDITED WITH AT LEAST 50 "POINTS," BASED ON 1 POINT FOR EACH DAY OF ACTIVE DUTY; 1 POINT FOR EACH INACTIVE DUTY DRILL (I.E., 4 POINTS FOR A 4-DRILL WEEKEND INACTIVE DUTY TRAINING PERIOD); AND 15 ADDITIONAL YEARLY MEMBERSHIP POINTS. 10 U.S.C. 1332(A)(2).

IN ADDITION, 10 U.S.C. 1406 PROVIDES THAT:

SEC. 1406 LIMITATIONS ON REVOCATION OF RETIRED PAY

AFTER A PERSON HAS BEEN GRANTED RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE, OR HAS BEEN NOTIFIED IN ACCORDANCE WITH SECTION 1331(D) OF THIS TITLE THAT HE HAS COMPLETED THE YEARS OF SERVICE REQUIRED FOR ELIGIBILITY FOR RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE, THE PERSON'S ELIGIBILITY FOR RETIRED PAY MAY NOT BE DENIED OR REVOKED ON THE BASIS OF ANY ERROR, MISCALCULATION, MISINFORMATION, OR ADMINISTRATIVE DETERMINATION OF YEARS OF SERVICE PERFORMED AS REQUIRED BY SECTION 1331(A)(2) OF THIS TITLE, UNLESS IT RESULTED DIRECTLY FROM THE FRAUD OR MISREPRESENTATION OF THE PERSON. * * * . THIS PROVISION WAS ADDED BY SECTION 2 OF THE ACT OF OCTOBER 14, 1966, PUBLIC LAW 89 652, 80 STAT. 902. SECTION 1 OF PUBLIC LAW 89-652 ALSO ADDED 10 U.S.C. 1331(D) WHICH REQUIRES THAT THE ARMED FORCES PROVIDE FOR THE WRITTEN NOTIFICATION OF EACH PERSON WHO HAS COMPLETED THE NUMBER OF YEARS OF SERVICE REQUIRED FOR ELIGIBILITY FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE UNITED STATES CODE. SUCH NOTICE MUST BE SENT TO THE PERSON CONCERNED WITHIN 1 YEAR AFTER HE HAS COMPLETED THE REQUIRED LENGTH OF SERVICE.

THE NAVY DEPARTMENT IN ITS REPORT OF JUNE 6, 1966, ON THE NEED FOR H.R. 5297, WHICH BECAME PUBLIC LAW 89-652, STATED THAT THE COMPLICATED METHOD OF COMPUTING CREDITABLE SERVICE FOR NON-REGULAR RETIREMENT UNDER CHAPTER 67 (10 U.S.C. 1331-1337):

* * * USUALLY LEAVES THE RESERVIST IN SERIOUS DOUBT AS TO WHETHER HE HAS IN FACT PASSED THE 20-YEAR MILESTONE. THE SERVICES, BY A VARIETY OF ADMINISTRATIVE PROCEDURES, HAVE ATTEMPTED TO KEEP THE RESERVIST INFORMED OF HIS PROGRESS AND HIS COMPLETION OF THE YEARS OF SERVICE REQUIRED. SOME CASES, HOWEVER, RESERVISTS HAVE RECEIVED ERRONEOUS INFORMATION OR HAVE MISCOMPUTED THEIR YEARS OF SERVICE AND IN RELIANCE THEREON HAVE REDUCED THEIR RESERVE PARTICIPATION ONLY TO FIND UPON REACHING RETIREMENT AGE THAT THEY HAVE NOT IN FACT MET THE 20 YEARS OF SERVICE REQUIREMENT. WHEN THE ERRORS ARE NOT DISCOVERED UNTIL AT OR NEAR RETIREMENT AGE THE RESERVISTS NO LONGER HAVE TIME TO RENEW THEIR PARTICIPATION AND ACQUIRE THE NECESSARY ADDITIONAL SERVICE. PAGE 3 OF H. REP. NO. 1689, AND PAGE 2 OF S. REP. NO. 1693, 89TH CONG., 2D SESS. A RESERVIST MAY PROPERLY BE TRANSFERRED TO THE RETIRED RESERVE UPON HIS APPLICATION AFTER COMPLETING ONLY 8 YEARS OF CREDITABLE SERVICE, AND PRIOR TO THE ENACTMENT OF PUBLIC LAW 89-652 SOME RESERVISTS APPARENTLY MADE THAT TRANSFER PRIOR TO COMPLETING THE FULL 20 YEARS OF SATISFACTORY SERVICE NEEDED TO QUALIFY FOR RETIRED PAY BECAUSE OF AN ERRONEOUS BUT GOOD FAITH BELIEF THAT THEY HAD ACTUALLY COMPLETED 20 YEARS' SERVICE. /2/ THE PRIMARY PURPOSE OF PUBLIC LAW 89-652 WAS TO ALLEVIATE THIS PROBLEM AND TO PLACE THE BURDEN ON THE ARMED FORCES TO NOTIFY RESERVISTS WHEN THEY HAD MET THE 20 YEARS OF SERVICE REQUIREMENT TO QUALIFY FOR RESERVE RETIRED PAY AT AGE 60.

DISCUSSION

OUR DECISION IN MATTER OF CASSEDY, 58 COMP.GEN. 390, CITED ABOVE, INVOLVED AN AIR FORCE RESERVE LIEUTENANT COLONEL WHO FACED INVOLUNTARY SEPARATION FROM ACTIVE RESERVE STATUS AT THE AGE OF 54 IN 1970 UNDER A STATUTORY RESTRICTION ON SERVICE GENERALLY APPLICABLE TO AIR FORCE RESERVE OFFICERS OF HIS GRADE. /3/ HE DISAGREED WITH AIR FORCE OFFICIALS CONCERNING THE NUMBER OF YEARS OF CREDITABLE SERVICE HE ACTUALLY HAD FOR RETIRED PAY PURPOSES, BUT HE WAS SEEKING REASSIGNMENT TO THE SELECTIVE SERVICE SYSTEM SO THAT HE COULD EXTEND HIS ACTIVE RESERVE STATUS UNTIL AGE 60 UNDER A SPECIAL STATUTORY EXCEPTION APPLICABLE TO THAT AGENCY TO ENSURE HIS COMPLETION OF THE 20 YEARS' REQUIRED SERVICE REGARDLESS OF THE OUTCOME OF THAT DISAGREEMENT. /4/ HOWEVER, IN 1969 HE RECEIVED AN UNSOLICITED OFFICIAL NOTICE FROM THE AIR RESERVE PERSONNEL CENTER ADVISING HIM THAT HE HAD COMPLETED 20 YEARS' CREDITABLE SERVICE FOR RETIRED PAY PURPOSES, AND IN RELIANCE ON THAT NOTICE HE DISCONTINUED HIS EFFORTS TO TRANSFER TO THE SELECTIVE SERVICE SYSTEM AND REMAIN IN AN ACTIVE RESERVE STATUS. THE NOTICE WAS IN ERROR SINCE HE DID NOT ACTUALLY HAVE 20 YEARS OF CREDITABLE SERVICE UNDER THE STANDARDS PRESCRIBED BY 10 U.S.C. 1332, BUT WE HELD THAT IN THOSE PARTICULAR CIRCUMSTANCES 10 U.S.C. 1406 MADE THE OFFICIAL NOTICE IRREVOCABLE AND OPERATED TO MAKE THE OFFICER ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF THE ACTUAL AMOUNT OF HIS CREDITABLE SERVICE.

THE SITUATION IN THE PRESENT CASE IS ENTIRELY DIFFERENT. MR. NAHRSTEDT DID SERVE ON FULL-TIME ACTIVE DUTY WITH THE ARMED FORCES FOR A TOTAL OF 5 YEARS AND 9 MONTHS BETWEEN 1942 AND 1945, AND BETWEEN 1952 AND 1954. ADDITION, HE DID PARTICIPATE ACTIVELY AND SATISFACTORILY IN PART-TIME ARMY NATIONAL GUARD AND RESERVE PROGRAMS FOR A TOTAL OF 1 YEAR AND 6 MONTHS IN 1940 AND IN 1958. HOWEVER, IT SHOULD HAVE BEEN FAIRLY OBVIOUS TO HIM IN 1961 WHEN HE APPLIED FOR A TRANSFER TO THE RETIRED RESERVE THAT HE HAD NOT YET COMPLETED THE FULL 20 YEARS OF CREDITABLE SERVICE HE NEEDED TO QUALIFY FOR RESERVE RETIRED PAY AT AGE 60. THE HANDWRITTEN POSTCARD HE RECEIVED WAS SIMPLY AN INFORMAL RESPONSE TO AN INFORMAL INQUIRY, AND IT WAS PLAINLY NOT A FORMAL NOTICE ISSUED UNDER THE PROVISIONS OF 10 U.S.C. 1331(D) AND 1406 TO CONFIRM A RESERVIST'S RECENT COMPLETION OF 20 YEARS' CREDITABLE SERVICE. MOREOVER, HE DID NOT, AND COULD NOT, USE OR RELY UPON THE POSTCARD TO DECIDE WHETHER HE SHOULD DISCONTINUE ACTIVE PARTICIPATION IN A RESERVE PROGRAM. HENCE, WE CONCLUDE THAT THE POSTCARD DID NOT CONFER ELIGIBILITY FOR RESERVE RETIRED PAY UPON HIM UNDER 10 U.S.C. 1406, AND THAT HE IS NOT ENTITLED TO RETIRED PAY UNDER THAT OR ANY OTHER PROVISION OF LAW.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY. /5/

/1/ THIS ACTION IS IN RESPONSE TO A REQUEST FROM A SPECIAL DISBURSING AGENT OF THE ARMY FINANCE AND ACCOUNTING CENTER FOR AN ADVANCE DECISION CONCERNING THE PROPRIETY OF APPROVING A VOUCHER IN FAVOR OF MR. NAHRSTEDT IN THE AMOUNT OF $293.81, AS ARMY RESERVE RETIRED PAY DUE FOR THE PERIOD MARCH 7-31, 1983, IF IT MAY PROPERLY BE CONCLUDED THAT HE IS ENTITLED TO RETIRED PAY UNDER THE APPLICABLE STATUTES. THE REQUEST WAS FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AFTER IT WAS APPROVED AND ASSIGNED SUBMISSION NUMBER DO-A-1418 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

/2/ SEE 10 U.S.C. 274; DEPARTMENT OF DEFENSE DIRECTIVE 1200.4 (DATED DECEMBER 20, 1957, SUPERSEDED) AND ID. 1200.15 (DATED FEBRUARY 16, 1973, CURRENT). COMPARE MONTILLA V. UNITED STATES, 198 CT.CL. 48 (1972).

/3/ 10 U.S.C. 8848.

/4/ 10 U.S.C. 1007. THE SELECTIVE SERVICE SYSTEM CEASED GRANTING EXTENSIONS UNDER THIS STATUTE IN APRIL 1970, BUT EXTENSIONS GRANTED PRIOR TO THAT TIME REMAINED IN EFFECT UNTIL THE CONCERNED RESERVIST REACHED AGE 60. /5/ THE SUBMITTED VOUCHER, WHICH MAY NOT BE APPROVED FOR PAYMENT, WILL BE RETAINED HERE.