Garcia v. United States

• Decision Date: 19 March 1980
• Docket Number: No. 214-78.,214-78.
• Citation: 617 F.2d 218
• Parties: Nicholas A. GARCIA, Jr. v. The UNITED STATES.
• Court: U.S. Claims Court

617 F.2d 218

Nicholas A. GARCIA, Jr. v. The UNITED STATES.

No. 214-78.

United States Court of Claims.

Decided March 19, 1980.

Donald F. Mintmire, Louisville, Ky., atty. of record, for plaintiff. Barnett, Alagia & Carey, Louisville, Ky., of counsel.

Ransey Guy Cole, Jr., Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniels, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, COWEN, Senior Judge, and KUNZIG, Judge.

OPINION

COWEN, Senior Judge:

Plaintiff, Nicholas A. Garcia, Jr., filed suit in this court on May 12, 1978, seeking military retirement pay under 10 U.S.C. § 1331¹ for the period from October 6, 1967, to October 18, 1970. Defendant concedes that plaintiff satisfies all the age and service requirements of the statute, but contends that plaintiff's claim is barred by this court's 6-year statute of limitations. The question of limitations is thus the sole issue presented by the parties' cross-motions for summary judgment. For the reasons set out below, we find that plaintiff's petition is not barred by limitations and that plaintiff is entitled to recover retirement pay for the contested period.

The facts relevant to plaintiff's claim have been stipulated by the parties. Plaintiff served in the United States Army Reserve until on or about August 1, 1948, when he retired with the rank of Lieutenant Colonel. Plaintiff celebrated his 60th birthday on October 6, 1967, and on May 8, 1974, he filed with the United States Army an application for retired pay, pursuant to 10 U.S.C. § 1331. By letter of August 2, 1974, his application was returned by the Department of the Army with the statement that a review of his military records reflected 19 years, 11 months and 14 days satisfactory service at the time he was discharged from the United States Army Reserve, whereas 10 U.S.C. § 1331 requires a minimum of 20 years of qualifying service. He was advised in that letter that if he believed the statement of his service was incorrect, he should furnish documentary proof to support his claim, and that he could appeal his case to the Army Board for the Correction of Military Records, which is empowered to determine the existence of an error or injustice.

On September 12, 1974, plaintiff filed an application for correction of his military records to show 20 years of qualified service and eligibility to receive retired pay benefits. Plaintiff was informed by letter of October 5, 1976, from the Chief of the Support Division, Retired Activities Directorate, Department of the Army, that his records had been further reviewed and that it had been determined that at the time of his discharge on August 20, 1948, he was credited with 20 years of qualifying service and was eligible to receive retired pay benefits. The letter also stated that since his claim fell within the purview of the 6-year statute of limitations, his application for retired pay benefits had been referred to the General Accounting Office (GAO). On October 13, 1976, the Executive Secretary for the Board for the Correction of Military Records wrote plaintiff that his records had been administratively corrected to show he had over 20 years of creditable service as of August 20, 1948, making him eligible to receive retired pay benefits. As stated, plaintiff's claim for retired pay was referred to the GAO for certification and was received by that office on October 18, 1976. As a result of a certification by GAO, plaintiff received retired pay for the 6-year period prior to the date GAO received the claim — from October 18, 1970 to October 18, 1976. Citing its 6-year statute of limitations,² however, GAO refused to pay plaintiff for the period from October 6, 1967, the date on which he had satisfied the age and service requirements of section 1331, to October 18, 1970, 6 years before the date on which GAO received his claim. This suit followed.

While GAO refused to pay plaintiff's claim on the basis of the provisions of 31 U.S.C. § 71a, the statute asserted as a bar to the claim here is, of course, 28 U.S.C. § 2501. This latter statute provides that:

Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.

As is typical of limitations problems, the crucial question here is when did the plaintiff's claim first accrue for purposes of this statute. We have stated in the past that

A claim against the United States first accrues on the date when all of the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. * * * Oceanic S.S. Co. v. United States, 165 Ct.Cl. 217, 225 (1964).³

Defendant contends that plaintiff could have filed suit as soon as he satisfied the age and service requirements of 10 U.S.C. § 1331 and failed to receive retirement pay. Defendant argues that these requirements were satisfied by plaintiff on October 6, 1967, plaintiff's 60th birthday, and that under 5 U.S.C. § 8301,⁴ plaintiff was entitled to the receipt of retired pay in the month following, i. e., November 1967. Defendant concludes that plaintiff could have first brought suit in November of 1967; that his is a continuing claim, and that his right to recover the installments of retired pay to which he would have been entitled during the period covered by this action is foreclosed by the 6-year statute of limitations.

Plaintiff contends that his cause of action did not accrue until August 2, 1974, the date on which the Army first denied his application for retirement pay. Plaintiff points out that 10 U.S.C. § 1331 specifically requires a person to make application for retired pay. Therefore, plaintiff reasons that until such an application had been made and rejected, all the events necessary to fix the Government's liability had not occurred.

Alternatively, plaintiff claims that he had no right to file suit in this court until the Secretary of the Army acted as required by 10 U.S.C. § 1331, and therefore, that his cause of action did not accrue until October 5, 1976, when he was informed that as a result of a further review of his records, it had been determined that at the time of his discharge, he had 20 years of qualifying service and that he was eligible to receive retired pay benefits.

I.

The defendant correctly argues that we have held in a number of actions by military personnel to recover retired pay, that when the claim is dependent only upon the military record of the retiree, independent of the action of any board or agency, his claim accrued when he satisfied the age and service requirements of the statute; that it is a continuing claim, and that any installments of retired pay which would have been due him 6 years before his petition is filed, are barred by the statute of limitations. See e. g., Gordon v. United States, 134 Ct.Cl. 840, 140 F.Supp. 263 (1956). However, since this is an action brought by a reservist, we think a different rule applies because of the enactment of Pub.L. 89-652, 89th Cong., 2d Sess., 80 Stat. 902. That Act added subsection (d) of section 1331 and also amended chapter 71 of title 10 U.S.C. by adding a new section 1406 at the end thereof.⁵

As indicated supra at n. 1, subsection (d) of section 1331, makes it mandatory for the secretary concerned to make provision for notifying each person who has completed the years of service required for eligibility for retired pay. Section 1406 provides that when a person receives notice under section 1331(d) that he has completed the years of service required for eligibility for retired pay, his eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation or administrative determination of years of service performed as required by section 1331(a), unless the error is caused by his fraud or misrepresentation. The statute, as enacted, also provides that the notification that a person has completed the years of service required for retired pay under chapter 67 of title 10 including section 1331 is conclusive as to the person's subsequent entitlement to such pay. Consequently, we think that plaintiff's cause of action accrued and that he became eligible for retired pay on October 5, 1976, when he was notified that he was eligible to receive retired pay benefits because of the agency determination that at the time of his discharge on August 20, 1948, he was credited with 20 years of qualifying service. We think this result is compelled by the legislative history of Pub.L. 89-652. Senate Rep. No. 1693, which accompanied the bill that became Pub.L. 89-652, is reprinted in 1966 U.S.Code Cong. and Admin.News, p. 3268, and provides in pertinent part as follows:

EXPLANATION

Public Law 810 of the 80th Congress established a system of retirement with pay for officers and enlisted members of the Reserve components of the Armed Forces. Those reservists who completed a total of 20 years of satisfactory Federal service are entitled to retired pay upon their application at age 60.

The point system of crediting Reserve activity in one of several different ways has made it difficult for reservists and the services to avoid errors in determining when 20 years of satisfactory Federal service have been completed. There have been several troublesome cases where reservists have received erroneous information that they had completed the required years of service or where the reservist has miscomputed these years himself. In these cases the reservists have ceased participation in the Reserve program but upon their application for retired pay at age 60 the error has been discovered. Because of age or other reasons it often is impractical for the reservists then to renew their Reserve participation to acquire the necessary service. Consequently they are ineligible for retired pay.

Under this bill the service Secretary would be required to notify in writing each reservist who has completed 20

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