BNUMBER: B-270971
DATE: March 27, 1996
TITLE: Commander Carl D. Swanson, USCGR (Retired)-Claim for
Retroactive Increased Reserve Retired Pay
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Matter of:Commander Carl D. Swanson, USCGR (Retired)-Claim for
Retroactive Increased Reserve Retired Pay
File: B-270971
Date:March 27, 1996
DIGEST
A retired member of the Coast Guard Reserve, due to administrative
error, was paid less than the correct amount of reserve retired pay
from his retirement in 1972 until the error was discovered in 1992.
The Coast Guard then paid him the additional amount due for the 6
years prior to the discovery of the error. However, his claim for the
amount which accrued before that 6-year period is barred by 31 U.S.C. sec.
3702(b), which allows payment only of claims which are presented
within 6 years of accrual. Neither the General Accounting Office nor
the Coast Guard may waive application of this statutory requirement.
DECISION
We have been asked to review the denial of the claim of Commander Carl
D. Swanson, USCGR (Retired), for retroactive increased reserve retired
pay. We affirm the Claims Group's denial of his claim.
Commander Swanson was placed on the Coast Guard Reserve retired list
in October 1972 and became entitled to receive reserve retired pay at
that time. Due to an administrative error in computing his initial
retired pay, he was underpaid a total of $4,153.14 between that time
and February 29, 1992, when the Coast Guard discovered and corrected
the error. The Coast Guard then paid Commander Swanson the amount he
had been underpaid between February 1, 1986, and February 29, 1992,
the 6-year period immediately preceding the discovery of the error.
This amounted to $1,688.92 minus federal tax withholding, or a net
amount of $1,351.14. The Coast Guard advised him that it is precluded
by law from paying the amount that accrued prior to February 1, 1986.
Commander Swanson filed a claim with our Office for the balance of the
underpayment. Our Claims Group denied his claim, advising him that it
is barred by the provisions of 31 U.S.C. sec. 3702(b).[1]
Under the Barring Act, 31 U.S.C. sec. 3702(b), and implementing
regulations, 4 C.F.R. sec. 31.5, every claim against the United States
cognizable by the General Accounting Office (GAO) must be received by
GAO or the agency or department concerned within 6 years of the date
it accrues or be forever barred.[2]
Commander Swanson's claim for retired pay accrued beginning in October
1972 and monthly thereafter as each payment of retired pay became due.
Under the Barring Act only that portion of his claim which is within 6
years of accrual is payable. See QMCM Bennie S. Kearley, USCG
(Retired), B-246871, June 4, 1992; and Lieutenant Colonel Donald E.
Keen, USAR Retired, B-193181, May 22, 1979, involving similar claims.
The Coast Guard has already paid that portion of the underpayment to
him. While it is unfortunate that the error in computation of
Commander Swanson's retired pay occurred and that he was unaware of
it, neither our Office nor the Coast Guard may waive the 6-year limit
prescribed by the Barring Act.
Accordingly, the denial of Commander Swanson's claim for the unpaid
portion of his reserve retired pay that accrued from October 1972
through January 1986, is sustained.
Robert P. Murphy
General Counsel
B-270971
The Honorable J.D. Hayworth
Member, United States House of Representatives
1818 E. Southern Avenue, Suite 3-B
Mesa, AZ 85204
Dear Mr. Hayworth:
This is in response to your letter of December 29, 1995, regarding the
claim of Commander Carl D. Swanson, USCGR (Retired), for payment of
additional amounts of reserve retired pay which accrued between
October 1972 and January 1986, and which he did not receive due to an
administrative error in computing his retired pay.
Enclosed is a copy of our decision of today in which we find that
Commander Swanson cannot be paid the amount of reserve retired pay he
was underpaid before February 1986. As we explain in the decision,
neither our Office nor the Coast Guard may waive the provision of the
Barring Act, 31 U.S.C. sec. 3702(b), that precludes payment of claims
received more than 6 years from their accrual. Since the Coast Guard
has already paid Commander Swanson for the 6 years preceding the
discovery of their error, we may not authorize additional payment on
his claim.
We regret that a more favorable reply is not possible.
Sincerely yours,
/s/Seymour Efros
for Robert P. Murphy
General Counsel
Enclosure
1. Claims Group settlement Z-2869838, dated November 3, 1995.
2. Prior to June 15, 1989, only filing with the GAO satisfied the
Barring Act. However, this requirement had no effect in Commander
Swanson's case since the error was not discovered until 1992.