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B-191052, MAR 30, 1978

B-191052 Mar 30, 1978
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WHICH WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL OCTOBER 13. IS BARRED BY THE PROVISIONS OF 31 U.S.C. 71A. THOUGH IT MIGHT HAVE REQUIRED CHANGES IN ADMINISTRATIVE COMPUTATION OF RETIRED PAY ENTITLEMENTS WHICH WOULD INFLUENCE THIS CASE. COULD NOT PROVIDE A BASIS FOR PAYMENT OF THE BARRED CLAIM WHETHER IT WAS AN INITIAL INTERPRETATION OF THE LAWS INVOLVED OR OVERRULED PRIOR DECISIONS RELATING TO SUCH PAYMENTS. RETIRED: THIS ACTION IS IN RESPONSE TO A LETTER DATED NOVEMBER 21. THE REQUEST WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE ASSISTANT DIRECTOR OF ACCOUNTING AND FINANCE. THE SUBMISSION STATES THAT THE MEMBER WAS RELIEVED FROM ACTIVE DUTY ON JULY 1. WHERE IT WAS RECEIVED ON DECEMBER 28.

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B-191052, MAR 30, 1978

CLAIM OF THE SURVIVING SPOUSE OF A DECEASED MEMBER FOR ADDITIONAL RETIRED PAY FOR A PERIOD PRIOR TO MARCH 1, 1971, WHICH WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL OCTOBER 13, 1977, IS BARRED BY THE PROVISIONS OF 31 U.S.C. 71A. THE DECISION 55 COMP.GEN. 1402 (1976), THOUGH IT MIGHT HAVE REQUIRED CHANGES IN ADMINISTRATIVE COMPUTATION OF RETIRED PAY ENTITLEMENTS WHICH WOULD INFLUENCE THIS CASE, COULD NOT PROVIDE A BASIS FOR PAYMENT OF THE BARRED CLAIM WHETHER IT WAS AN INITIAL INTERPRETATION OF THE LAWS INVOLVED OR OVERRULED PRIOR DECISIONS RELATING TO SUCH PAYMENTS.

MAJOR WALTER G. FENERTY, USAF, RETIRED:

THIS ACTION IS IN RESPONSE TO A LETTER DATED NOVEMBER 21, 1977, FROM LIEUTENANT COLONEL PETER W. KRASKA, USAF, ACCOUNTING AND FINANCE OFFICER, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $217.52, IN FAVOR OF MRS. JOYE M. FENERTY, REPRESENTING ADDITIONAL RETIRED PAY CLAIMED BY HER AS THE DESIGNATED BENEFICIARY OF HER LATE HUSBAND, MAJOR WALTER G. FENERTY, USAF, RETIRED, WHO DIED ON OCTOBER 1, 1977. THE REQUEST WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE ASSISTANT DIRECTOR OF ACCOUNTING AND FINANCE, HEADQUARTERS UNITED STATES AIR FORCE, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF -1284 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION STATES THAT THE MEMBER WAS RELIEVED FROM ACTIVE DUTY ON JULY 1, 1970, AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST THE FOLLOWING DAY WITH A 30 PERCENT DISABILITY RATING. ON SEPTEMBER 11, 1970, THE MEMBER ACCEPTED FEDERAL EMPLOYMENT AND HAD HIS RETIRED PAY REDUCED EFFECTIVE THAT DATE BY VIRTUE OF THE DUAL COMPENSATION RESTRICTIONS CONTAINED IN 5 U.S.C. 5532.

ON DECEMBER 8, 1970, THE MEMBER APPARENTLY EXECUTED AND SENT TO THE VETERANS ADMINISTRATION (VA) A WAIVER OF RETIRED PAY IN ORDER TO OBTAIN VA COMPENSATION. THE VA IN TURN PROCESSED THE WAIVER THROUGH TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER (AFAFC) ON DECEMBER 17, 1970, WHERE IT WAS RECEIVED ON DECEMBER 28, 1970. ON FEBRUARY 4, 1971, THE AFAFC CERTIFIED TO THE VA THAT THE MEMBER'S RETIRED PAY HAD BEEN REDUCED BY $193 MONTHLY, EFFECTIVE FEBRUARY 1, 1971. THIS IN TURN REQUIRED THE DUAL COMPENSATION REDUCTION UNDER 5 U.S.C. 5532 TO BE RECOMPUTED AND ADJUSTED FROM $168.61 TO $72.11 MONTHLY, EFFECTIVE FEBRUARY 1, 1971, DUE TO THE FACT THAT VA BENEFITS, EVEN THOUGH RECEIVED BY VIRTUE OF A WAIVER OF RETIRED PAY, ARE NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS. SEE 36 COMP.GEN. 799 (1957).

IN THE MEANTIME, BY SUPPLEMENTAL VA FORM 651, DATED DECEMBER 28, 1970, THE VA RECERTIFIED TO AFAFC THAT BASED ON EVIDENCE RECEIVED THAT THE MEMBER HAD A WIFE AND DEPENDENT CHILD, HIS ENTITLEMENT TO VA BENEFITS WERE INCREASED TO $227 MONTHLY, EFFECTIVE JULY 2, 1970. ON FEBRUARY 22, 1971, AFAFC IN TURN CERTIFIED THAT THE MEMBER'S MONTHLY RETIRED PAY WOULD BE REDUCED BY $227, EFFECTIVE MARCH 1, 1971. THIS IN TURN REQUIRED A FURTHER RECOMPUTATION OF THE DUAL COMPENSATION REDUCTION UNDER 5 U.S.C. 5532, TO $55.11, EFFECTIVE THAT LATTER DATE.

IT IS CLEAR, THEREFORE, THAT THE PROPOSED PAYMENT RELATES TO ENTITLEMENTS WHICH COULD ONLY HAVE ARISEN PRIOR TO MARCH 1, 1971. THE CLAIM WAS RECORDED AS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON OCTOBER 13, 1977, MORE THAN 6 YEARS AFTER SUCH PAYMENTS WOULD HAVE BEEN MADE IF OTHERWISE ALLOWABLE. ACCORDINGLY, THE CLAIM IS BARRED UNDER 31 U.S.C. 71A UNLESS SOME SPECIAL CIRCUMSTANCE EXISTS WHICH WOULD PERMIT THAT PROVISION OF LAW TO BE CONSIDERED NOT APPLICABLE.

REGARDING THE IMPLICATION IN THE SUBMISSION THAT 55 COMP.GEN. 1402 (1976) MAY HAVE HAD SOME EFFECT ON THE RUNNING OF THE LIMITATION IMPOSED BY 31 U.S.C. 71A, WE ARE AWARE OF NO RULE WHICH COULD SUPPORT THAT RESULT. THE BASIC RIGHTS TO RETIRED PAY AND VA BENEFITS ARE ESTABLISHED BY LAW. AN INITIAL INTERPRETATION OF THOSE LAWS IN A DECISION OF THIS OFFICE RELATES BACK TO THE EFFECTIVE DATE OF THE LAWS ESTABLISHING THE BENEFITS IN QUESTION, BUT SUCH A DECISION DOES NOT CREATE RIGHTS WHICH DID NOT ALWAYS EXIST. EACH INDIVIDUAL MUST ASSERT HIS CLAIM WITHIN THE PERIOD ALLOWED WHETHER OR NOT THE EXACT NATURE AND EXTENT OF BENEFITS HAS BEEN SUBJECT TO A SPECIFIC DECISION BY US OR BY THE COURTS. FURTHER, IN THOSE CASES IN WHICH PRIOR DECISIONS ARE OVERRULED CREATING ADDITIONAL BENEFITS, THE EFFECT OF THE NEW RULE IS PROSPECTIVE ONLY. 52 COMP.GEN. 99, 105 AND DECISION CITED THEREIN; B-190389, JANUARY 3, 1978.

THUS, IN NEITHER CASE COULD THE DECISION 55 COMP.GEN. 1402 PROVIDE A BASIS FOR OUR CONSIDERATION OF THE CLAIM HERE IN QUESTION SINCE ANY ENTITLEMENT OF THE DECEASED MEMBER OR THE CLAIMANT AS HIS BENEFICIARY MAY HAVE HAD, AROSE MORE THAN 6 YEARS PRIOR TO THE DATE IT WAS RECEIVED IN THIS OFFICE. SINCE WE FIND NO BASIS TO HOLD THAT THE LIMITATION IMPOSED BY 31 U.S.C. 71A IS NOT APPLICABLE IN THIS CASE THE VOUCHER MAY NOT BE PAID AND IS RETAINED IN THIS OFFICE.

IN VIEW OF THE ABOVE, SPECIFIC ANSWERS TO THE QUESTIONS POSED REGARDING THE DATE ON WHICH THE CLAIM AROSE ARE NOT REQUIRED.

IT APPEARS THAT THE DECISION 55 COMP.GEN. 1402 MAY REQUIRE SOME CHANGES IN CURRENT PRACTICES REGARDING THE PAYMENT OF RETIRED PAY WHEN WAIVER OF SUCH PAY UNDER 38 U.S.C. 3105 IS INVOLVED. HOWEVER, SINCE THE ISSUES INVOLVED ARE COMPLEX AND SINCE A SPECIFIC CASE REQUIRING A DECISION HAS NOT BEEN PRESENTED, WE DO NOT BELIEVE IT APPROPRIATE TO ADDRESS THOSE ISSUES AT THIS TIME. WE WILL, OF COURSE, TREAT THE ISSUES INVOLVED UPON PRESENTATION OF AN APPROPRIATE CASE.

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