BNUMBER:  B-274195
DATE:  October 8, 1996
TITLE:  Master Sergeant Henry W. Schuchardt, USAR (Retired)

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Matter of:Master Sergeant Henry W. Schuchardt, USAR (Retired)

File:     B-274195

Date:October 8, 1996

DIGEST

1.   A reservist, subject to 10 U.S.C.  sec.  1331(c), who had reached age 
60 and had been notified that he had completed 20 years of service, 
but who did not meet the wartime active duty requirement, was not 
required to be further notified by the service that he was eligible to 
retire when 10 U.S.C.  sec.  1331(c) was later amended to include his 
active duty period as a qualifying wartime period.   The statutory 
duty to notify under 10 U.S.C.  sec.  1331(d) only pertains to the years of 
service requirement and cannot be extended to require notification of 
qualifying wartime service.

2.  A reservist who had reached age 60 was notified at the time that 
he had completed the requisite 20 years of service for non-Regular 
retired pay.  However, he was not fully eligible for retired pay then 
because he did not have the necessary wartime service required by 10 
U.S.C.  sec.  1331(c).  He later first became fully qualified for retired 
pay when 10 U.S.C.  sec.  1331(c) was later amended to include the period 
of active duty he performed.  In these circumstances, the reservist's 
claim for retired pay accrued at that time, and therefore, his claim 
for retroactive retired pay is limited to the period beginning with 
the sixth antecedent anniversary of the date when he filed application 
for that pay.   Cf. Captain James E. Finigan, 
62 Comp. Gen. 227 (1983).

DECISION

This decision responds to a request from the Defense Finance and 
Accounting Service (DFAS).[1]  The question asked is whether Master 
Sergeant Henry W. Schuchardt, USAR (Retired), is entitled to retired 
pay for any period before May 6, 1988, the sixth antecedent 
anniversary of the date he applied for non-Regular retired pay after 
he qualified for that pay.[2]  As discussed below, Sergeant Schuchardt 
is not entitled to retired pay for any period before that date.

Sergeant Schuchardt applied to the Army both in 1970 and in 1978 for 
retired pay based on his service in the Army Reserve.  Although 
Sergeant Schuchardt had been notified that he had completed the 
necessary 20-year service requirement mandated by 10 U.S.C.  sec.  1331(a), 
and reached age 60 on October 1, 1970, the Army rejected his 
applications for retired pay benefits on November 17, 1970, and again 
on November 27, 1978.  The reason was that he had been a member of a 
Reserve component before August 16, 1945, and did not perform active 
duty during World Wars I or II, or during the Korean Conflict, as 
required by 10 U.S.C.  sec.  1331(c).

Effective October 1, 1983, 10 U.S.C.  sec.  1331(c) was amended by section 
924(a) of Title IX, Pub. L. No. 98-94, Sept. 24, 1983, 97 Stat. 644, 
to add two additional active service periods during which a member, 
such as Sergeant Schuchardt, could have performed active duty and 
qualified for non-Regular retired pay.  They were the periods of the 
Berlin crisis and the Vietnam era.  Since Sergeant Schuchardt 
performed active duty during the Vietnam era, he first became fully 
eligible for non-Regular retired pay on October 1, 1983.  However, he 
did not reapply to the Army for that pay until May 6, 1994.  Following 
a further review of his service record to insure that he had performed 
active duty during the Vietnam era the Army advised him on February 
27, 1995, that he was entitled to retired pay.  As a result, he 
received retired pay for the period beginning on May 6, 1988, the 
sixth antecedent anniversary of the date he applied for retired pay 
after he became fully eligible for that pay.  

Sergeant Schuchardt believes that he is entitled to retired pay for 
the period prior to May 6, 1988.  The question raised by DFAS is 
whether the Army's determination is correct.  Specifically, DFAS asks 
whether the Army's determination of 
February 27, 1995, that Sergeant Schuchardt is entitled to retired pay 
was a condition precedent to the accrual of Sergeant Schuchardt's 
entitlement to retroactive retired pay, as it was in the case of the 
20-year service requirement at issue in our decision Captain James E. 
Finigan, USAR, 62 Comp. Gen. 227 (1983), thus allowing payment of 
retired pay retroactively to October 1, 1983, without regard to the 
6-year barring act at 31 U.S.C.  sec.  3702(b) (1994).

OPINION

The age and service requirements applicable to retired pay for 
non-Regular service are contained in 10 U.S.C.  sec.  1331.  Subsection 
1331(a) provides that, except as provided in subsection 1331(c) 
thereof, a person is entitled, on application, to retired pay if that 
person is: (1) at least 60 years of age; (2) has performed at least 20 
years of service computed under 10 U.S.C.  sec.  1332; (3) has performed at 
least 
8  years of qualifying service as a member of any of the categories 
set forth in 
10 U.S.C.  sec.  1332(a)(1); and (4) is not entitled to retired pay under 
any other provision of law from an armed force.  In addition, 10 
U.S.C.  sec.  1331(d) provides that the Secretary of the service concerned 
shall notify, in writing, each person who has completed the years of 
service required for eligibility for retired pay within 1 year after 
the person completes that service.  Finally, 10 U.S.C.  sec.  1338 provides 
that, absent fraud or misrepresentation by the reservist, a 
reservist's claim for retired pay cannot be denied or revoked based on 
an error in the calculation of years of  service performed after the 
reservist has been notified of that eligibility according to 10 U.S.C.  sec.  
1331(d). 

The legislative history of 10 U.S.C.  sec.  1331(d) shows that the notice 
requirement was enacted due to concern that the complicated method of 
computing creditable years of service for non-Regular retirement had 
often left reservists in serious doubt about whether they had, in 
fact, passed the 20-year milestone.  Rather than requiring each 
reservist to assume responsibility for that calculation, the 
provision, which was added by section 1 of Pub. L. No. 89-652, Oct. 
14, 1966, 80 Stat. 902, placed the burden on the services to make that 
determination and notify reservists when they have met the years of 
service requirement.[3]

In Finigan, supra, we considered the effect of the barring act on a 
member's  administrative claim for non-Regular retired pay following 
delayed notification by the service that he performed the requisite 20 
years of service.  We held that the notification by the service to the 
member of that fact constituted the accrual of the member's claim for 
retired pay.  

Our holding in Finigan was based on Garcia v. United States, 617 F.2d 
218 (Ct. Cl. 1980).  In Garcia, the Court of Claims addressed the 
issue of whether an Army reservist's claim for non-Regular retired pay 
following delayed notification of satisfactory completion of his 20 
years of service was limited by the court's 6-year statute of 
limitations (28 U.S.C.  sec.  2501 (1994)), or whether his claim accrued 
only 

when the Army notified him that he had completed the necessary 20 
years of service.  The court held that 10 U.S.C.  sec.  1331(d), created a 
statutory condition precedent to the accrual of a cause of action.  
This condition, the court concluded, was satisfied by the Department 
of Defense determination and notification to the member that he had 
met the years of service requirement, and thus, the provisions of 28 
U.S.C.  sec.  2501 would not limit his recovery.  Id. at 222.  The same 
reasoning was applied in Finigan to decide the accrual of his 
administrative claim for retired pay for the purposes of the barring 
act.  

Clearly, the only statutory duty imposed on the services under 10 
U.S.C.  sec.  1331(d) is to notify a member that he has completed the 20 
years of service required for non-Regular retired pay eligibility.  
There is nothing in that provision or any other provision that imposes 
a similar duty regarding member compliance with the wartime active 
duty requirement of subsection 1331(c).  Absent such a statutory duty, 
the years of service notification requirement cannot be extended to 
require notification of wartime active service.  Therefore, neither 
the holding in Garcia, nor in Finigan, apply to his situation. 

DFAS next asks whether a service's determination of wartime service, 
in effect, is a condition precedent to the accrual of a reservist's 
claim for retired pay, even though there is no statutory notice 
requirement.  An agency determination is a condition precedent to the 
accrual of a claim only when it is required by statute.  Finigan, 
supra, at 230.  Other than the specific statutory duty imposed on the 
Army by 
10 U.S.C. 1331(d), the burden of showing that the individual has met 
the other qualifying conditions entitling him to retired pay remains 
with the individual.  Ordinarily, that evidence of entitlement or 
confirmation of that fact can be found in government records.  Thus, 
when an individual, such as Sergeant Schuchardt, files an application 
for retired pay, the action by the service to review his records is 
done merely to confirm the individual's entitlement, or as it happened 
to 
Sergeant Schuchardt in 1970 and 1978, inform him that he was not 
entitled to retired pay.  Since he had previously met all requirements 
other than wartime service, once his Vietnam era active duty qualified 
as wartime service on October 1, 1983, he immediately became eligible 
for retired pay, and could have applied for it, starting then. 

Accordingly, Sergeant Schuchardt's claim for non-Regular retired pay 
based on his May 6, 1994, application is subject to the 6-year barring 
act.  He is thus entitled to retired pay beginning May 6, 1988, the 
sixth antecedent anniversary of the date he applied for that pay, 
through the present.[4]

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. This request has been assigned control number DFAS 96-4-M.

2. The provisions governing non-Regular retired pay found in chapter 
67 of title 10, United States Code (10 U.S.C.  sec.  1331-1337, et seq.) 
and 10 U.S.C.  sec.  1406 (amended and redesignated as 10 U.S.C.  sec.  1338 by 
Title I, section 104(a) of Pub. L. No. 99-348, July 1, 1986, 100 Stat. 
686), have been transferred to chapter 1223 of title 10, United States 
Code and renumbered as 10 U.S.C.  sec.  12731-12738, by Div. A, Title XVI, 
section 1662(j)(1) of Pub. L. No. 103-337, Oct. 5, 1994, 108 Stat. 
2998, 3005.  Since all of the controlling events in the present case 
arose prior to enactment of Pub. L. No. 103-337, all references will 
be to the former U.S. Code provisions.    

3. Captain James E. Finigan, USAR, 62 Comp. Gen. 227, supra, at 229.

4. Cf. Lieutenant Colonel Oran S. Emrich, USAFR, B-218902, Aug. 1, 
1985.