Matter of: QMCM Bennie S. Kearley, USCG (Retired)-- Claim for retroactive increased retired pay File: B-246871 Date: June 4, 1992

B-246871: Jun 4, 1992

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MILITARY PERSONNEL Pay Retroactive pay Claim accrual dates Statutes of limitation A Coast Guard member received less than the correct amount of retired pay from his retirement in 1975 until the error was discovered in 1990. He was then paid the additional amount for the 6 years prior to the discovery. His claim for the amount which accrued before that 6-year period is barred by 31 U.S.C. Which allows GAO to settle only claims which are presented within 6 years of accrual. DECISION This is in response to an appeal by QMCM Bennie S. His claim is denied. In August 1990 the Coast Guard discovered that he should have been credited with an additional 28 days of service and that he was therefore entitled to increased retired pay beginning in 1975.

Matter of: QMCM Bennie S. Kearley, USCG (Retired)-- Claim for retroactive increased retired pay File: B-246871 Date: June 4, 1992

MILITARY PERSONNEL Pay Retroactive pay Claim accrual dates Statutes of limitation A Coast Guard member received less than the correct amount of retired pay from his retirement in 1975 until the error was discovered in 1990. He was then paid the additional amount for the 6 years prior to the discovery. His claim for the amount which accrued before that 6-year period is barred by 31 U.S.C. Sec.??3702(b), which allows GAO to settle only claims which are presented within 6 years of accrual.

DECISION This is in response to an appeal by QMCM Bennie S. Kearley, USCG (Retired), of a Claims Group determination which denied his claim for retroactive increased retired pay. For the reasons presented below, his claim is denied.

Master Chief Kearley became entitled to military retired pay in October 1975. In August 1990 the Coast Guard discovered that he should have been credited with an additional 28 days of service and that he was therefore entitled to increased retired pay beginning in 1975. The Coast Guard paid him the increase for the 6 years immediately preceding the discovery. Master Chief Kearley claimed the amount of the increase which accrued more than 6 years earlier. The Claims Group denied his claim, and he has appealed their determination.

The Barring Act, 31 U.S.C. Sec. 3702(b) (formerly 31 U.S.C. Sec. 71a), and implementing regulations, 4 C.F.R. Sec. 31.5, provide that every claim against the United States cognizable by the General Accounting Office must be presented to the GAO or the agency or department concerned within 6 years of the date it accrues or be forever barred.

In Lieutenant Colonel Donald E. Keen, USAR, Retired, B-193181, May 22, 1979, and Feb. 28, 1980, we dealt with a retired officer who received the retired pay of a major rather than a lieutenant colonel from his retirement in 1966 until discovery of the error in 1977. He received retroactive payment of the increase for the 6 years from 1971 until 1977 and claimed the amounts due him for the prior years. We said the the Barring Act barred his claim for amounts which accrued prior to the 6 years.

Master Chief Kearley's situation is similar to that in B-193181, supra. Under the Barring Act, we have jurisdiction to settle only the portion of his claim within 6 years of accrual. The Coast Guard has already paid that portion of his claim.

Master Chief Kearley's attorney draws our attention to Irwin v. Veterans Administration, 111 S. Ct. 453 (1990), which states that a claimant against the government may be entitled to equitable tolling of the statute of limitations in limited instances--i.e., when the claimant has been affirmatively misled or tricked by the other party's misconduct or when the claimant has actively pursued his claim but has been unsuccessful due to certain minor procedural requirements. Master Chief Kearley was not misled or tricked by the Coast Guard, nor had he been actively pursuing a claim. Thus the equitable tolling rationale of Irwin is not applicable in this instance.

Master Chief Kearley's attorney urges further that we take cognizance of the fact that Master Chief Kearley could not have known that the computation of his retired in 1975 was wrong, that his cause of action was "undiscoverable" as a result, and that therefore Master Chief Kearley's action should be deemed to have accrued upon discovery of the error in 1991, relying again on Irwin. However, we find nothing in Irwin or elsewhere that would permit us to reach Master Chief Kearley's claim on that basis.

Master Chief Kearley claims interest on the amount of the increase. It is well settled that the government may not pay interest on claims unless the statute involved specifically provides for payment of interest. M. Rene Santoni, B-187877, April 14, 1977. There is no statutory basis for payment of interest on the retroactive increase which Master Chief Kearley has already received.

Accordingly, the Claims Group determination which denied Master Chief Kearley's claim is affirmed.

To: Director, Claims Group (GGD)--Sharon S. Green From: General Counsel-- James F. Hinchman Subject: QMCM Bennie S. Kearley, USCG (Retired)--Claim for retroactive increased retired pay (B-246871)--Z-2867319

Attached is your file Z-2867319 along with a copy of our decision QMCM Bennie S. Kearley, USCG (Retired), B-246871, of today's date, in which we affirm your denial of Master Chief Kearley's claim for retroactive increased retired pay.