SSgt Justo Castro, U.S. Army (Retired) B-237623, Mar 15, 1991

B-237623: Mar 15, 1991

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The rule that a claim does not accrue for purposes of the statute of limitations pending a statutorily required determination as to the claimant's entitlement is not for application where a retired member of the military seeks to revoke a prior waiver of his military retired pay. A claim for retroactive retired pay following the revocation in 1986 of a prior waiver of such pay for amounts that accrued more than 6 years before the claim was received is barred by the 6-year limitations period. His request was not acted upon until 1986. When the Office of Personnel Management (OPM) determined that his military service was not necessary to determine his eligibility for a civil service annuity.

SSgt Justo Castro, U.S. Army (Retired) B-237623, Mar 15, 1991

The rule that a claim does not accrue for purposes of the statute of limitations pending a statutorily required determination as to the claimant's entitlement is not for application where a retired member of the military seeks to revoke a prior waiver of his military retired pay. A claim for retroactive retired pay following the revocation in 1986 of a prior waiver of such pay for amounts that accrued more than 6 years before the claim was received is barred by the 6-year limitations period.

A disbursing agent at the United States Army Finance and Accounting Center (Finance Center) requests an advance decision on whether payment of retired pay may be made to Staff Sergeant Justo Castro, USA, retired, for the period November 12, 1976 to April 30, 1980. Sergeant Castro had waived his retired pay in order to increase his civil service annuity. He requested a withdrawal of his waiver in 1979 retroactive to 1976. His request was not acted upon until 1986, when the Office of Personnel Management (OPM) determined that his military service was not necessary to determine his eligibility for a civil service annuity. Retired pay was reinstated as of May 1, 1980.

Sergeant Castro's claim for retired pay from November 12, 1976 until April 30, 1980 was denied by our Claims Group on the ground that it was for amounts that accrued more than 6 years before the claim was received by the General Accounting Office and was therefore barred. We affirm our Claims Group settlement.

DISCUSSION AND CONCLUSION

Sergeant Castro first became entitled to military retired pay in 1967, when he retired from active military service. In 1976, he waived his military retired pay in order to use his military military service in the computation of his civil service annuity, as allowed under 5 U.S.C. Sec. 8332(c). He mistakenly thought that he could not qualify for an annuity without using his military service. In 1979, Sergeant Castro realized that he could independently qualify for an annuity and also receive his retired pay. He calculated that he would receive about $200 per month more if he withdrew his waiver and reinstated his retired pay. Accordingly, he requested cancellation of his 1976 waiver, reinstatement of his retired pay, and adjustment of his annuity to reflect the removal of his military service from the computation.

In this regard, we have held that if the counting of military service is not necessaary to establish eligibility for a civil service annuity and such service is used only to increase the amount of the annuity, the individualconcerned may withdraw his waiver of retired pay and have such pay reinstated. 50 Comp.Gen. 80 (1970). Therefore, before Sergeant Castro's request to revoke his prior waiver and reinstate his retired pay could be approved, a determination had to be made that the Sergeant's military service was not used to establish his eligibility for a civil service annuity. Since OPM has exclusive jurisdiction over matters pertaining to civil service annuities, 5 U.S.C. Secs. 8332 and 8347 (b), Sergeant Castro's request had to be approved by OPM.

The problem arises here because it took OPM over 6 years to process Sergeant Castro's request. As a result, Sergeant Castro's retroactive claim for military retired pay ran afoul of the statute of limitations with respect to the period of time prior to May 1, 1980. The barring act, 31 U.S.C. Sec. 3702(b)(1), provides that our Office must receive a claim within 6 years after it accrues or it is barred from being paid. B-218902, Aug. 1, 1985.

As pointed out by the Army disbursing agent, we have also held that where a claim is dependent upon the occurrence of an event or contingency, the claim does not accrue and the statute of limitations does not begin to run until the event or contingency occurs. 62 Comp.Gen. 227 (1983). Thus, where an individual's entitlement is subject to a statutorily required determination, the barring act does not begin to run until the determination is made. Friedman v. United States, 310 F.2d 381 (Ct.Cl. 1982).

This rule is not for application here. The OPM determination simply allowed Sergeant Castro's waiver to be withdrawn and his retired pay reinstated. It did not establish his right to entitlement to receive retired pay retroactively. Questions concerning entitlement to military retired pay are determined by our office. 41 Comp.Gen. 460 (1962). As to whether such a waiver revocation may be given retroactive effect, we have taken the position that it may, but that any retroactive payment is subject to the 6-year limitation period. B-202610-O.M., December 16, 1981; B-197603, August 21, 1980. In contast, we note that while an employee may revoke a prior waiver of his annuity, payment of the annuity waived may not be made for the period during which the waiver was in effect. 5 U.S.C. Sec. 8345(d); 5 C.F.R. Sec. 841.803(d). In the absence of a similar statutory provision for military retired pay, we have viewed retroactive reinstatement of such pay following a waiver revocation to be consistent with congressional intent, provided that the reinstatement does not exceed the limitations period. B-202610, supra; 50 Comp.Gen. 80, 81, supra.

Sergeant Castro's claim for retroactive retired pay is therefore subject to the limitations statute without regard to when OPM completed its review of his revocation request. Since Sergeant Castro's claim was first filed in our Office on June 11, 1987, he is barred from claiming retired pay before May 1, 1980. In this connection, we note that under a recent amendment to our regulations, the filing requirement of our limitation statute may now be met by timely filing with the agency involved. 4 C.F.R. 31.5(a). The current regulation, however, precludes consideration of any claim which was barred prior to June 15, 1989. Accordingly, the settlement of the Claims Group is affirmed.