Matter of: Captain Elias W. Covington, USA (Retired) File: B-244827 Date: September 9, 1992

Matter of: Captain Elias W. Covington, USA (Retired) File: B-244827 Date: September 9, 1992

MILITARY PERSONNEL Pay Retirement pay Claim accrual dates Continuing claims Statutes of limitation A retired Army member, who subsequently retired in 1981 under the Civil Service Retirement System from a civilian agency and waived his military retired pay to increase his civil service annuity, succeeded in having his civilian records changed in 1989 to reflect government service through July 1984. He then filed a claim for accrued but unpaid military retired pay for the period up to July 1984. He filed this claim with the Army on December 6, 1989, and with this Office May 18, 1990. Retired pay accrued after December 6, 1983, (6 years from the date the claim was first filed) may be paid to him, but the portion accrued before that date is time barred by 31 U.S.C. Sec. 3702. The pendency of legal action on the term of his civilian employment does not waive the 6-year statute of limitations. MILITARY PERSONNEL Pay Survivor benefits Waiver A retired member may waive participation in military survivor benefit program if he elects participation in the civil service survivor benefit plan and Survivor Benefit Plan (SBP) premiums need not be deducted from military retired pay. However, if waiver is no longer effective for any reason, previously elected military SBP participation is resumed and military retired pay is reduced. Thus, when member's civilian records were changed to reflect continued service rather than retirement, the existing waiver of retired pay and SBP participation was rendered ineffective for that period and SBP deductions were properly resumed.

DECISION

This is in response to a request from Captain Elias W. Covington, USA, (Retired), for reconsideration of our Claims Group's March 21, 1991, denial of his claim for unpaid retired pay and for deductions made from his military retired pay for premiums under the Survivor Benefit Plan (SBP). The issues presented are whether payment of part of his unpaid retired pay is barred by 31 U.S.C. Sec. 3702, and whether SBP premiums should have been deducted from his retired pay for any period before July 1, 1984.

Captain Covington filed a claim for payment of his military retired pay for the period between November 2, 1982 and July 1, 1984. Our Claims Group allowed a portion of his claim but held that the part of Captain Covington's claim that arose before December 6, 1983, 6 years prior to the date the claim was filed with the Army finance office, is time barred by 31 U.S.C. Sec. 3702. It is our view that the Claims Group's decision was correct, and that Captain Covington's claim for pay accruing prior to December 6, 1983, is barred. In addition we conclude that the SBP premiums deducted from his retired pay for the period for which retired pay has been paid were proper.

Captain Covington retired from the Army and began working for the government as a civilian employee. He apparently was separated from his agency by a reduction-in-force. He applied for civil service retirement effective September 30, 1981. Although he did not need to combine his military and civilian service to establish his civil service annuity, he elected to do so for a larger civil service annuity. By letter dated September 3, 1981, he waived receipt of his military retired pay. He also requested waiver of the military SBP in favor of the civil service survivor benefit program.

After the separation, Captain Covington filed a complaint against his agency with the Merit Systems Protection Board (MSPB). By an Opinion and Order dated August 11, 1986, the MSPB directed that Captain Covington's civilian records be corrected to show further civilian employment from November 1, 1981 to November 1, 1982.

Captain Covington later filed a suit in federal court against his agency and others. The matter was settled out of court. The settlement agreement, dated July 5, 1989, provided that Captain Covington's records would be changed to reflect continuous service through June 30, 1984, and civil service retirement effective July 1, 1984. Captain Covington then filed a claim for accrued military retired pay he had waived without SBP deductions for the period November 2, 1982 to July 1, 1984.

THE BARRING ACT

Generally, 31 U.S.C. Sec. 3702, known as the Barring Act, bars payment of any claim not received in this Office within 6 years from the date it accrues. The purpose of the act is to relieve the government of the need to retain and go back over old records for the purpose of settling old claims.

An amendment to regulations regarding claims against the United States provides that a claim is considered timely filed for purposes of the Barring Act when the claim is filed either with GAO or with the agency whose activities gave rise to the claim, within 6 years after the claim accrues. [1] Since claims are generally first filed with the appropriate agency, a claim may be considered to have been filed when received by the agency. However, the regulations state that the amendment affects only claims that accrue after June 15, 1983.

RETIRED PAY

A retired member may waive receipt of, but not the right to retired pay. 28 Comp.Gen. 675 (1949). A member may claim his accrued retired pay. However, his claim is subject to the Barring Act. Sergeant Alfred R. Rupert, USA, Retired, B-190390, Mar. 24, 1978.

Military retired pay accrues daily. A claim for retired pay which accrued more than 6 years prior to the date the claim was received may not be considered. Lieutenant Colonel Oran S. Emrich, USAFR, B-218902, Aug. 1, 1985.

While Captain Covington waived receipt of his retired pay when he chose to combine his service for civil service retirement, it continued to accrue daily. Thus he is entitled to file a claim for the unpaid retired pay, but payment of his claim would be limited to that which accrued within the statute of limitations.

Because Captain Covington's right to retired pay continued to accrue after June 15, 1983, the accrual date set out in the regulation amendment, the Claims Group held that his claim was governed by the amendment. Thus, the Claims Group determined that the relevant date for calculating the application of the Barring Act was the date Captain Covington's claim was received by the Army finance office, December 6, 1989.

Captain Covington argues that the statute of limitations should not apply in his case, since he was involved in hearings and litigation that affected his civil service employment record and the date of his retirement under the civil service program. He believes that this Office should waive the statute of limitations.

This Office has no authority to modify or waive the provisions of the Barring Act or make any exceptions to the time limitations it imposes. Frederick C. Welch, 62 Comp.Gen. 80 (1982). We have long held that the reasons a claim is not submitted within the statute of limitations and the substantive merits of a claim are irrelevant. Regardless of the merits of a claim, we do not have authority to modify or waive the provision of the act. Carlton L. Shepard, Jr., B-204542, Nov. 30, 1981. Thus we cannot waive the statute of limitations for Captain Covington.

When 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. 1962).

In Staff Sergeant Justo Castro, U.S. Army (Retired), B-237623, March 15, 1991, this Office considered a similar situation. There, the member waited 6 years for Office of Personnel Management (OPM) to determine that his military service was not necessary to determine his eligibility for a civil service annuity. When OPM finally made its decision, he claimed his retired pay from 1976 to 1980. While the OPM determination allowed the waiver to be withdrawn and the retired pay to be reinstated, it did not establish his right to receive retired pay retroactively. Since the claim was filed in 1986, we held that amounts accruing prior to 1980 were barred by the 6 year statute of limitations.

No statutorily required determination was necessary to decide Captain Covington's entitlement to his retired pay. While Captain Covington waived receipt of his retired pay because of his civilian retirement, and while his civilian retirement affected the reason he did not claim or receive his military retired pay, it did not affect or create the right or entitlement to his military retired pay. Thus the Barring Act prohibits payment of his accrued retired pay prior to December 6, 1983 and we must uphold the decision of the Claims Group.

SBP DEDUCTIONS

Captain Covington also requests reimbursement for the SBP deductions made from his military retired pay. He argues that since he made the request to waive SBP coverage in favor of Civil Service survivor benefit plan coverage, SBP deductions should not have been made from his military retired pay.

When a member participating in the SBP waives his military retired pay in favor of civil service retirement, SBP participation is not required unless the member has revoked the waiver and notified the Office of Personnel Management that he does not wish to participate in the civil service survivor benefit program. See 10 U.S.C. Sec. 1452(e).

This Office has held that when an SBP participant such as Captain Covington has waived military retired pay for purposes of receiving a civil service annuity based on combining service, and has waived participation in the SBP to participate in the civil service survivor benefits program, SBP participation may be suspended. However, if the waiver is no longer effective for any reason, previously elected SBP participation is resumed and military retired pay is reduced. Matter of the Department of Defense Military Pay and Allowance Committee Action No. 522, 55 Comp.Gen. 1178 (1976).

In the present case, although Captain Covington requested waiver of his retired pay and SBP participation by letter of September 3, 1981, through his own actions, his records were changed to reflect that he was a civilian employee rather than a civil service retiree through June 30, 1984 and he was no longer a participant in the civil service survivor benefit plan. Thus the SBP waiver request dated September 3, 1981 was rendered ineffective for that period and the SBP deductions were required and were properly made by the finance center. Accordingly, we uphold the decision of the Claims Group.

Date: To: Director, Claims Group/GGD - Sharon Green From: General Counsel - James F. Hinchman

Subject: Captain Elias W. Covington--(Z-2862456)--B-244827

Returned herewith is your file Z-2862456, with our decision Matter of Captain Elias W. Covington, USA, Retired, dated today, in which we upheld your settlement which allowed the portion of his claim that accrued after December 6, 1984, but denied the part of his claim for retired pay which had accrued prior to that date. We also upheld your denial of SBP deductions to his retired pay. Attachment

1. Emphasis added. See, 54 Fed. Reg. 51,867 (1989), 4 C.F.R. Sec. 31.5.