Matter of: Betty J. Porter File: B-254399 Date: December 22, 1993

Matter of: Betty J. Porter File: B-254399 Date: December 22, 1993

MILITARY PERSONNEL Pay Survivor benefits Annuities Amount determination Widow's Survivor Benefit Plan annuity was reinstated following her divorce, but through error, a cost of living adjustment to which she was entitled was not included in annuity computation. When error is discovered 13 years later, payment of increased annuity may only be made for preceding 6 years since remainder of claim is barred under the Barring Act, 31 U.S.C. Sec. 3702(b).

DECISION

Major Henry O. Porter, Jr., retired from the United States Air Force on March 31, 1970, and Major Porter made an election to participate in the SBP program with full spouse coverage in 1974. Major Porter died on April 7, 1975. Mrs. Porter received an SBP annuity from that time until December 1978 when she remarried. When she was divorced on June 12, 1979, her annuity was reinstated effective June 1, 1979.

However, the computation of her annuity did not include the Cost of Living Adjustment (COLA), effective March 1, 1979. The error was discovered in May 1992 and the amount of underpayment totaled $6,484.65 for the period June 1, 1979, to April 30, 1992. Ms. Porter was reimbursed $3,363.20 for the period April 8, 1986, through April 30, 1992, covering the 6-year period prior to the time her claim was received. The balance of $3,121.45 for the period June 1, 1979, through April 7, 1986, was not paid since it was found to be barred by 31 U.S.C. Sec. 3702(b)(1).

Ms. Porter argues in her reconsideration request that she filed the claim as soon as the error was discovered in May 1992 and there is no basis to find a portion of the claim barred because she could not have filed earlier.

The Barring Act, 31 U.S.C. Sec. 3702(b), 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.[1] Our Office has no authority to disregard the provisions of the act or to waive the time limitation it imposes.

Ms. Porter is contending that her claim and cause of action was "undiscoverable" until May 1992 when the failure to include the 1979 COLA in her annuity was found and corrected. However, in other cases involving similar types of claims, we have consistently found that the 6-year limitation applies. In QMCM Bennie S. Kearley, USCG (Retired), B-246871, June 2, 1992, the claimant retired from the Coast Guard in 1975 and in 1990 it was discovered that he should have been credited with 28 additional days of service resulting in additional retired pay. We found that he could only be paid the increased retired pay for the 6-year period immediately proceeding the discovery and was barred from collecting the amount for the prior 9 years. See also Lieutenant Colonel Donald E. Keen, USAR, Retired, B-193181, May 22, 1979 and Feb. 28, 1980 (received retired pay at the wrong grade for 11 years prior to error discovery).

Accordingly, we affirm the Claims Group action.

1. Prior to June 15, 1989, only filing with the GAO satisfied the Barring Act.