B-234750, Jun 14, 1990, 90-1 CPD ***

B-234750, Jun 14, 1990, 90-1 CPD ***

MILITARY PERSONNEL - Pay - Retirement pay - Waiver - Service credits DIGEST: A retired member of the Army with a subsequent civil service disability retirement who waived his military retired pay so that his military service could be credited in his civil service annuity to increase its value, but who then failed to waive and continued to receive veterans compensation in lieu of military retired pay, was not credited with military service by Office of Personnel Management. As a result, the purposes of civil service annuity credit, and following the death of the member, any unpaid military retired pay is payable to the appropriate beneficiary.

Lt. Col. Warren B. Shumaker, Jr., USA (Retired):

The United States Army Finance and Accounting Center (Finance Center) submits a doubtful claim for arrears of retired pay by the widow of retired Army officer, Lt. Col. Shumaker had waived his retired pay so that his military service could be credited to his civil service annuity (annuity), but the Office of Personnel Management (OPM) refused to accept the waiver and grant this credit because Lt. Col. Shumaker failed to also waive the veterans compensation that he was receiving in lieu of retired pay. Lt. Col. Shumaker died without actually revoking his waiver of retired pay but continued receiving veterans compensation. Under these circumstances, the appropriate beneficiary may be paid any arrears of retired pay accruing prior to the death of the member.

Lt. Col. Shumaker retired from the Army on January 31, 1966, and subsequently received both veterans compensation and military retired pay, less the amount of the veterans compensation. He worked as a civil service employee until he suffered a stroke and was granted an annuity on September 1, 1981, effective April 1, 1981. In a letter to the Finance Center dated September 1, 1981, he waived his military retired pay so that his military service could be credited to his annuity. Prior to October 1, 1981, the member was receiving $25.52 per month in retired pay. As of October 1, 1981 no retired pay was due because the veterans compensation was increased to an amount which exceeded his retired pay. However, on November 5, 1981, OPM notified the member and the Finance Center that it could not credit his military service in his annuity unless the member also waived his veterans compensation. Moreover, OPM suggested that it would not be as beneficial to the member to combine all government service under the annuity as it would be to receive veterans compensation with separate receipt of annuity based on civilian service only. The Finance Center made several attempts to contact the member so that he could revoke his waiver of retired pay, but no response was received. He continued to receive veterans compensation until he died on April 21, 1988. Retired pay in the amount of $1,273.20 accrued prior to the member's death for the portion of the month in which he died not covered by veterans compensation. /1/

ANALYSIS AND CONCLUSION

A retired member may not receive both retired pay and veterans pension or compensation for the same service. See 5 C.F.R. Sec. 831.301(b)(1981). However, if an individual who is entitled to retired pay has elected to receive veterans compensation or pension, in lieu of military retired pay, the retired member must also waive these benefits in order to use his military service to increase his annuity. See 5 U.S.C. Sec. 8339(g).

What constitutes creditable service for purposes of the Civil Service Retirement Act is a matter within the jurisdiction of OPM and will not be reviewed by this Office. See 5 U.S.C. Sec. 8347; Matter of Ortiz, B-193337, Jan. 4, 1979.

In this case, OPM did not recognize a waiver of military retired pay permitting increased annuity benefits based on military service. And, it clearly appears that the member decided to continue to receive veterans compensation once he was advised by OPM that it was in his interest to do so. Thus, the waiver for civil annuity proposes was never effective and by continuing to receive veterans compensation he, in effect, constructively withdrew any waiver of military retired pay for increased annuity purposes.

Accordingly, since the member's intention to maintain his veterans compensation is clear and he never effectively waived his military retired pay in favor of an increased annuity, the widow's claim for arrears of retired pay for the period between the termination of the right to veterans compensation and the death of the member, is valid if otherwise proper. See 52 Comp.Gen. at 528.

/1/ Records in the Houston office of the Department of Veterans Affairs between 1980 and 1988 (those currently available) indicate continuous compensation to the member through March 31, 1988, based on 100 percent disability. A payment sent to the member on May 1, 1988, covering the month of April 1988, was recovered.