Master Sergeant Henry W. Schuchardt, USAR (Retired)

B-274195 Oct 08, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 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. 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. 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) was later amended to include the period of active duty he performed. 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. View Decision Matter of: Master Sergeant Henry W. Schuchardt, USAR (Retired) File: B-274195 Date: October 8, 1996 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. 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.