Chief Warrant Officer Rafael G. Amalbert-Erroneous Retired

B-271426 Nov 04, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights The service denied his application because he did not have certain required active duty service. The service discovered that he was not entitled to retired pay and placed him in debt for payments received. He should have known they were erroneous. We modify the Claims Group's settlement to waive collection of the amounts he received during the first 9 months of the second period since he had a basis then to reasonably believe the payments were proper. DECISION This is in response to an appeal of Claims Group settlement Z-2927719-025. Amalbert was a member of the Puerto Rico National Guard with over 29 years of service when he reached age 60 in January 1971. Amalbert that he was not entitled to retired pay because he had not performed active duty during any of the periods of war specified in 10 U.S.C. View Decision Matter of: Chief Warrant Officer Rafael G. Amalbert-Erroneous Retired Pay- Waiver File: B-271426 Date: November 4, 1996 A National Guard member applied for reserve retired pay in 1971 upon reaching the required age 60 and having over the required 20 years of service. However, the service denied his application because he did not have certain required active duty service. He disagreed and repeatedly reasserted his position until in 1989 the service established his retired pay retroactive to 1971, but because of the statute of limitations, limited retroactive payment to 6 years. In 1991, due to his inquiries regarding the retroactive limitation, the service discovered that he was not entitled to retired pay and placed him in debt for payments received. Five months later the service erroneously reinstated his retired pay and continued the payments until 1994 when it again discovered its error. The Claims Group waived the debt related to the first period, but declined to waive the second period on the basis that at the time the second period payments began, he should have known they were erroneous. On appeal, we modify the Claims Group's settlement to waive collection of the amounts he received during the first 9 months of the second period since he had a basis then to reasonably believe the payments were proper, but not after he received definitive notice of the erroneous nature of the payments at the end of those 9 months. DECISION This is in response to an appeal of Claims Group settlement Z-2927719-025, November 7, 1994, which denied in part the request of Chief Warrant Officer Rafael G. Amalbert for waiver of his debt in the amount of $53,836.81 which resulted from reserve retired pay being erroneously paid to him by the U.S. Army. [1] The Claims Group waived $37,167.65 of Mr. Amalbert's debt. As explained below, we modify the Claims Group's settlement to waive an additional $4,138.41 of the debt. BACKGROUND Mr. Amalbert was a member of the Puerto Rico National Guard with over 29 years of service when he reached age 60 in January 1971. At that time he applied for retired pay pursuant to 10 U.S.C. Sec. 1331-1337, which at that time included the provisions authorizing non-regular retired pay for qualified members of the National Guard. However, in a letter dated September 27, 1971, the U.S. Army Reserve Personnel Center (ARPERCEN) notified Mr. Amalbert that he was not entitled to retired pay because he had not performed active duty during any of the periods of war specified in 10 U.S.C. Sec. 1331(c), a requirement for members in his situation. Mr. Amalbert disputed that determination. He indicates he made several attempts to persuade the service of his entitlement to retired pay at various times but without success until 1989, when in March he again made application for retired pay. As a result of that application, by order dated October 4, 1989, ARPERCEN notified him that he was certified for retired pay effective January 29, 1971, the date of his 60th birthday, and monthly payments to him were begun. He was also paid a lump sum for retired pay retroactive 6 years, and he was advised that the statute of limitations, 31 U.S.C. Sec. 3702(b), prohibited further retroactive payment beyond that 6 years (to January 1971). Mr. Amalbert disputed the application of the 6-year limitations period to his claim because he had first applied for retired pay in January 1971. Although he was unsuccessful in convincing the service that his claim was not subject to the statute of limitations, his current retired pay continued to be paid monthly through March 1991. As a result of Mr. Amalbert's continuing efforts to recover retired pay for the additional retroactive period, ARPERCEN advised him in April 1991 that their review of his entitlement indicated that he had been erroneously certified to receive retired pay. Accordingly, ARPERCEN advised him that he owed the government $37,167.65 for the retired pay he had been paid. He also was advised that he could request waiver of the debt. Mr.