B-139107, JUNE 21, 1962, 41 COMP. GEN. 812

B-139107, JUNE 21, 1962, 41 COMP. GEN. 812

GRATUITIES - MUSTERING-OUT PAY - RESERVISTS IN "WITHOUT COMPONENT" SERVICE AFTER REGULAR COMMISSION--- GRATUITIES - MUSTERING-OUT PAY - "WITHOUT COMPONENT" SERVICE AFTER REGULAR COMMISSION--- GRATUITIES - MUSTERING-OUT PAY - RESERVISTS IN "WITHOUT COMPONENT" SERVICE REGULAR COMMISSION--- GRATUITIES - MUSTERING-OUT PAY - TIME FOR FILING CLAIMS - STATUTES OF LIMITATION - MILITARY SERVICE SUSPENSION - MUSTERING-OUT PAY CLAIMS--- GRATUITIES - MUSTERING-OUT PAY - TIME FOR FILING CLAIMS-- STATUTES OF LIMITATION - MILITARY SERVICE SUSPENSION - MUSTERING-OUT PAY CLAIMS--- GRATUITIES - MUSTERING-OUT PAY - TIME FOR FILING CLAIMS-- GRATUITIES - MUSTERING-OUT PAY - TIME FOR FILING CLAIMS--- CLAIMS - ADMINISTRATIVE SETTLEMENT - PROPRIETY--- CLAIMS - ADMINISTRATIVE SETTLEMENT - REQUESTING CLAIMANTS TO SUBMIT CLAIMS--- CLAIMS - ADMINISTRATIVE SETTLEMENT - REQUESTING CLAIMANTS TO SUBMIT CLAIMS THE HOLDING IN DOWLING V. UNITED STATES, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, THAT RESERVISTS ARE ENTITLED TO MUSTERING-OUT PAYMENTS UPON ACCEPTANCE OF A REGULAR COMMISSION WHILE CONTINUING IN A TEMPORARY OFFICER WITHOUT COMPONENT STATUS, WHICH HOLDING WAS BASED ON THE CONGRESSIONAL INTENT TO GIVE RESERVISTS AN OPTION TO RECEIVE SUCH PAYMENT AT TIME OF DISCHARGE OR RELEASE TO DETER THEM FROM REVERTING TO AN INACTIVE RESERVE STATUS RATHER THAN ON THE CONCEPT OF TERMINATION OR BREAK IN SERVICE AND, THEREFORE, IN VIEW OF THE LEGISLATIVE HISTORY OF THE OPTION PROVISION, THE DOWLING HOLDING WILL BE FOLLOWED IN THE AUDIT OF ACCOUNTS AND SETTLEMENT OF MUSTERING-OUT PAY CLAIMS. 36 COMP. GEN. 645, MODIFIED. THE REASONING IN THE DOWLING CASE, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, IN WHICH A RESERVE OFFICER WHO CONTINUED TO SERVE UNDER A TEMPORARY WITHOUT COMPONENT APPOINTMENT HELD AT TIME OF APPOINTMENT TO A REGULAR COMPONENT WAS HELD ENTITLED TO MUSTERING-OUT PAY, THAT THE INTENT OF THE OPTION CLAUSE IN THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, PERMITTING AN OFFICER TO RECEIVE MUSTERING-OUT PAY UPON APPOINTMENT IN A REGULAR COMPONENT WAS TO ENCOURAGE OFFICERS TO CHOOSE A MILITARY CAREER AND CONTINUE ON ACTIVE DUTY BY ACCEPTING APPOINTMENTS IN REGULAR COMPONENTS IN LIEU OF REVERSION TO INACTIVE RESERVE STATUS IS EQUALLY APPLICABLE TO OFFICERS WHO HAD NO RESERVE STATUS BUT HELD ONLY TEMPORARY WITHOUT COMPONENT APPOINTMENTS WHEN APPOINTED IN A REGULAR COMPONENT, AND, THEREFORE, PAYMENT OF MUSTERING OUT PAY IS AUTHORIZED IN THOSE CASES. COMP. GEN. 645, AND SIMILAR DECISIONS ARE MODIFIED. IN VIEW OF THE SIMILARITY OF THE PROVISIONS OF SECTION 7 (B) OF THE ACT OF OCTOBER 6, 1945, AMENDING THE MUSTERING-OUT PAYMENT ACT OF 1944, 38 U.S.C. 691C, AND THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 38 U.S.C. 691C, AUTHORIZING MUSTERING-OUT PAY TO MEMBERS OF THE UNIFORMED SERVICES, AT THEIR OPTION, UPON ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN REGULAR COMPONENTS, THE RULING IN THE DOWLING CASE, CT.1CL. NO. 174- 60, DECIDED FEBRUARY 7, 1962, THAT A RESERVE MEMBER WHO CONTINUED TO SERVE UNDER A WITHOUT COMPONENT APPOINTMENT AFTER APPOINTMENT TO A REGULAR COMPONENT IS ENTITLED TO MUSTERING-OUT PAY UNDER TITLE V OF THE 1952 ACT, WILL BE EXTENDED TO INCLUDE PAYMENTS UNDER THE AMENDATORY ACT OF 1945, FOR OFFICERS TENDERED APPOINTMENTS IN REGULAR COMPONENTS AFTER JUNE 1, 1945, THE EFFECTIVE DATE OF THE 1945 AMENDATORY ACT. MUSTERING-OUT PAY CLAIMS UNDER THE DOWLING DECISION, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, FROM MEMBERS OF THE ARMED FORCES WHO CONTINUED TO SERVE IN A WITHOUT COMPONENT STATUS AFTER ACCEPTANCE OF REGULAR APPOINTMENTS WILL NOT BE CONSIDERED UNLESS THEY ARE FILED WITHIN 10 YEARS OF DATE OF REGULAR APPOINTMENT, PLUS THE TIME THAT SUCH 10-YEAR PERIOD MIGHT HAVE BEEN EXTENDED BY THE MEMBER'S MILITARY SERVICE, PURSUANT TO THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, SINCE THE RIGHT TO MUSTERING-OUT PAY EXISTED FROM THE TIME THE CONDITIONS FOR PAYMENT WERE MET AND THE DOWLING DECISION, WHICH MERELY PLACED A CONSTRUCTION ON THE STATUTE DIFFERENT FROM THAT OF A GOVERNMENT AGENCY, DOES NOT AFFECT THE RUNNING OF THE 10-YEAR LIMITATION IN THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, FOR CLAIMS AND, THEREFORE, THE 1940 ACT PRECLUDES PAYMENT OF CLAIMS RETROACTIVELY FOR MORE THAN 10 YEARS UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, FOR RELEASES OR DISCHARGES AFTER JUNE 1, 1945, AND UNDER TITLE V, VETERANS' READJUSTMENT ASSISTANCE ACT FOR RELEASES AFTER JULY 16, 1952. THE SPECIFIC TIME LIMITATION--- JULY 17, 1959--- FOR FILING MUSTERING-OUT PAY CLAIMS PRESCRIBED IN SECTION 503 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, AS AMENDED, NOW CODIFIED IN 38 U.S.C. 2104, FOR MEMBERS OF THE UNIFORMED SERVICES WHO WERE DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BEFORE JULY 16, 1952, MAY NOT BE EXTENDED BY SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AND, THEREFORE, MUSTERING-OUT PAY CLAIMS WHICH WERE NOT FILED BEFORE JULY 17, 1959, BY MEMBERS WHO WERE INTEGRATED INTO A REGULAR COMPONENT AFTER JUNE 27, 1950, AND BEFORE JULY 16, 1952, ARE BARRED. IN THE SETTLEMENT OF MUSTERING-OUT PAY CLAIMS FROM MEMBERS OF THE UNIFORMED SERVICES WHO, PRIOR TO THE DOWLING DECISION, CT.1CL. NO. 174 60, DECIDED FEBRUARY 7, 1962, HAD PAYMENTS RECOVERED WHEN IT WAS DETERMINED THAT THEY WERE NOT ENTITLED TO MUSTERING-OUT PAY BECAUSE THEY CONTINUED IN WITHOUT COMPONENT STATUS AFTER APPOINTMENT IN A REGULAR COMPONENT, THE 10-YEAR LIMITATION IN THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, RUNS FROM THE DATE OF RECOUPMENT SINCE THAT IS WHEN THE CURRENT RIGHT TO FILE A CLAIM AROSE. MEMBERS OF THE UNIFORMED SERVICES WHO MADE TIMELY APPLICATION FOR MUSTERING-OUT PAY BUT WERE DENIED PAYMENT PRIOR TO THE DOWLING DECISION, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, WHICH PERMITTED MUSTERING- OUT PAY TO MEMBERS WHO CONTINUED IN A WITHOUT COMPONENT STATUS AFTER APPOINTMENT IN A REGULAR COMPONENT, MAY BE REGARDED AS HAVING COMPLIED WITH THE MUSTERING-OUT PAY STATUTES AND ENTITLED TO PAYMENT. MEMBERS OF THE UNIFORMED SERVICES WHO WHEN THEY ACCEPTED APPOINTMENTS IN THE REGULAR SERVICES DID NOT MAKE APPLICATION FOR MUSTERING-OUT PAY AND ARE NOW ENTITLED TO PAYMENT UNDER THE DOWLING DECISION, CT.1CL. NO. 174- 60, DECIDED FEBRUARY 7, 1962, MAY HAVE THE PERIOD OF MILITARY SERVICE UNDER SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940 REGARDED AS EXTENDING THE 10-YEAR STATUTE OF LIMITATIONS FOR CLAIMS IN THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, FOR MUSTERING-OUT PAYMENTS UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, FOR DISCHARGES AFTER JUNE 1, 1945, AND UNDER SECTION 502 (B) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 FOR DISCHARGES AFTER JULY 16, 1952. MEMBERS OF THE UNIFORMED SERVICES WHO WERE APPOINTED IN THE REGULAR ARMY OR AIR FORCE BETWEEN JUNE 27, 1950, AND JULY 16, 1952, AND WHO DID NOT MAKE APPLICATION FOR MUSTERING-OUT PAY ARE NOT ENTITLED TO PAYMENT UNDER THE DOWLING DECISION, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, IN VIEW OF THE SPECIFIC TIME LIMITATION IN SECTION 503 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, WHICH REQUIRED APPLICATIONS TO BE MADE BEFORE JULY 17, 1959. MUSTERING-OUT PAY CLAIMS UNDER THE DOWLING DECISIONS, CT.1CL. NO. 174- 60, DECIDED FEBRUARY 7, 1962, FROM MEMBERS OF THE UNIFORMED SERVICES WHO CONTINUED TO SERVE UNDER WITHOUT COMPONENT APPOINTMENTS AFTER APPOINTMENT IN A REGULAR COMPONENT MAY BE SETTLED ADMINISTRATIVELY BY THE SERVICE CONCERNED IF ENTITLEMENT EXISTS, BUT DOUBTFUL CLAIMS, OR CLAIMS WHICH ARE BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, SHOULD BE SUBMITTED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C., FOR SETTLEMENT. AMOUNTS OF MUSTERING-OUT PAY RECOUPED FROM MEMBERS OF THE UNIFORMED SERVICES WHO CONTINUED TO SERVE UNDER WITHOUT COMPONENT APPOINTMENTS AFTER APPOINTMENT IN A REGULAR COMPONENT, WHICH ARE FOR REPAYMENT UNDER THE DOWLING DECISION, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, MAY WITHOUT THE SUBMISSION OF SPECIFIC CLAIMS BE REFUNDED TO MEMBERS WHO ARE STILL IN THE UNIFORMED SERVICES, BUT NO REFUND SHOULD BE MADE TO PERSONS ENTITLED WHO ARE NO LONGER IN THE UNIFORMED SERVICES UNTIL SPECIFIC CLAIM IS RECEIVED FROM SUCH PERSONS. MUSTERING-OUT PAY CLAIMS FROM MEMBERS OF THE UNIFORMED SERVICES WHICH WERE PREVIOUSLY DENIED BUT ARE NOW FOR PAYMENT UNDER THE DOWLING DECISION, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, MAY BE SETTLED ADMINISTRATIVELY WITHOUT FURTHER SPECIFIC CLAIM, EXCEPT THAT IN THE CASE OF MEMBERS WHO ARE NO LONGER IN THE UNIFORMED SERVICES, THEIR CURRENT ADDRESSES SHOULD BE OBTAINED BEFORE PAYMENT IS EFFECTED.

TO THE SECRETARY OF DEFENSE, JUNE 21, 1962:

REFERENCE IS MADE TO LETTER OF MAY 16, 1962, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION AS TO WHETHER THIS OFFICE WILL FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF DOWLING V. UNITED STATES, CT.1CL. NO. 174-60, DECIDED FEBRUARY 7, 1962. IN THE EVENT THE DOWLING CASE WILL BE FOLLOWED IN SIMILAR CASES, THE ASSISTANT SECRETARY REQUESTS OUR CONSIDERATION OF SEVERAL RELATED QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 301 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS PRESENTED ARE AS FOLLOWS:

1. WILL THE COMPTROLLER GENERAL FOLLOW THE COURT OF CLAIMS DECISION IN THE CASE OF ROBERT CHARLES DOWLING V. THE UNITED STATES ( U.S. COURT OF CLAIMS NO. 174-60, 298 F.2D 941, DECIDED 7 FEBRUARY 1962) REGARDING MUSTERING-OUT PAY?

2. IF THE ANSWER IS IN THE AFFIRMATIVE, REPLIES TO THE FOLLOWING QUESTIONS ARE REQUESTED:

A. WILL THE RULING IN THE DOWLING DECISION BE EXTENDED TO INCLUDE PAYMENTS UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, FOR THOSE OFFICERS TENDERED A REGULAR APPOINTMENT IN ARMY OR AIR FORCE AFTER 1 JUNE 1945, THE EFFECTIVE DATE OF THE AMENDMENT OF THE 1944 ACT?

B. DOES THE ACT OF 9 OCTOBER 1940, 31 U.S.C. 71A (LIMITATION OF TIME ON CLAIMS AND DEMANDS) PRECLUDE PAYMENT TO AN OFFICER WHO IS ENTITLED TO MOP UNDER EITHER ACT RETROACTIVELY TO A PERIOD OF MORE THAN TEN YEARS?

C. IF THE ANSWER TO BE IS IN THE AFFIRMATIVE, DOES SECTION 205 OF THE SOLDIERS' AND SAILORS -CIVIL RELIEF ACT OF 1940 (50 U.S.C. APP. 525) HAVE THE EFFECT OF EXTENDING SUCH PERIOD?

D. DOES SECTION 503 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 AS AMENDED, NOW CODIFIED IN 38 U.S.C. 2104, PRECLUDE PAYMENT TO OFFICERS APPOINTED IN THE REGULAR ARMY OR AIR FORCE BETWEEN 27 JUNE 1950 AND 16 JULY 1952?

E. IF THE FOLLOWING CONDITIONS EXIST, WOULD THE ANSWER TO B, C AND DBE THE SAME?--- (1) PAYMENT WAS MADE TO THE OFFICER AND LATER RECOUPED BY THE GOVERNMENT, (2) TIMELY APPLICATION FOR PAYMENT WAS MADE AND DENIED, OR (3) NO APPLICATION FOR PAYMENT WAS MADE.

F. IF, BASED ON ANSWERS TO QUESTIONS 1 AND 2A-E, MUSTERING-OUT PAY ENTITLEMENT EXISTS, SHOULD CLAIMS BE SETTLED BY THE SERVICE CONCERNED OR SHOULD THEY BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C., FOR SETTLEMENT?

G. MAY ANY AMOUNTS OF MUSTERING-OUT PAY PREVIOUSLY PAID, AND SINCE COLLECTED, BE REFUNDED WITHOUT SPECIFIC CLAIM THEREFOR?

H. MAY CLAIMS FILED AND NOT PAID BECAUSE OF THE PRIOR DECISIONS OF THE COMPTROLLER GENERAL (E.G., 36 COMP. GEN. 645) BE PAID WITHOUT FURTHER SPECIFIC CLAIM THEREFOR?

IN THE DOWLING CASE THE COURT HELD THAT UNDER THE PROVISIONS OF TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011 (1952 USED.), (AUTHORIZING A MUSTERING-OUT PAYMENT TO CERTAIN MEMBERS OF THE ARMED FORCES AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE DUTY FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT) RESERVISTS SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER (WITHOUT COMPONENT) STATUS ARE ENTITLED TO MUSTERING-OUT PAY INCIDENT TO AN APPOINTMENT IN A REGULAR COMPONENT. THE 1952 ACT WAS REPEALED BY THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1273, AND SIMILAR PROVISIONS ARE NOW CONTAINED IN CHAPTER 43, TITLE 38, U.S.C.

CONTRARY TO THE COURT'S CONCLUSION, WE HELD IN DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, THAT THE LAW CONTEMPLATED AN ACTUAL TERMINATION OF AN ACTIVE MILITARY STATUS AS A CONDITION OF ENTITLEMENT TO MUSTERING- OUT PAY AND THAT WHERE A RESERVIST IS SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME OF HIS ACCEPTANCE OF AN APPOINTMENT IN THE REGULAR ARMY AND CONTINUES TO SERVE ON ACTIVE DUTY IN HIS TEMPORARY GRADE, THERE IS NO DISCHARGE OR RELEASE FROM ACTIVE DUTY ON WHICH TO BASE A RIGHT TO MUSTERING-OUT PAY. THE COURT TOOK THE POSITION, HOWEVER, THAT THE CASE SHOULD NOT TURN UPON THE QUESTION OF WHETHER THERE WAS A "BREAK" IN THE PLAINTIFF'S MILITARY SERVICE. RATHER, IT SAID ITS ATTENTION SHOULD BE DIRECTED TO DETERMINING THE PROBABLE PURPOSE OF CONGRESS WHEN IT INCLUDED IN SECTION 502 (B) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 689, 38 U.S.C. 1012 (B) (1952 USED.), PROVISIONS AFFORDING PERSONS WHO WOULD BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAY UPON FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE THE OPTION TO RECEIVE SUCH PAY AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES. ON THE BASIS THAT THE LEGISLATIVE HISTORY OF THE OPTION CLAUSE MAKES IT CLEAR THAT CONGRESS PROVIDED THE OPTION BECAUSE IT DID NOT WANT TO DETER RESERVE OFFICERS FROM CONTINUING ON ACTIVE DUTY AS REGULAR OFFICERS BY DENYING THEM THE MUSTERING-OUT PAYMENT WHICH THEY WOULD RECEIVE IF THEY CHOSE TO REVERT TO AN INACTIVE RESERVE STATUS, THE COURT CONCLUDED THAT MUSTERING-OUT PAYMENT IS AUTHORIZED UPON ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES EVEN THOUGH THE MEMBER CONCERNED WAS SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT (WITHOUT COMPONENT) BEFORE HIS REGULAR APPOINTMENT AND CONTINUE SERVE AFTER HIS APPOINTMENT IN THE REGULAR COMPONENT. THE GOVERNMENT'S MOTION FOR RECONSIDERATION OF THE DECISION HAS BEEN DENIED BY THE COURT OF CLAIMS AND WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT NO FURTHER PROCEEDINGS WILL BE UNDERTAKEN IN THE CASE.

IN SUCH CIRCUMSTANCES AND UPON RECONSIDERATION OF OUR POSITION IN THE MATTER, WE WILL ACCEPT AND FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE DOWLING CASE IN THE AUDIT OF ACCOUNTS AND SETTLEMENT OF CLAIMS INVOLVING MUSTERING-OUT PAYMENTS. THUS, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

IT IS TO BE NOTED THAT IMMEDIATELY PRIOR TO HIS APPOINTMENT AS A FIRST LIEUTENANT IN THE REGULAR AIR FORCE IN 1954, DOWLING HELD THE RANK OF FIRST LIEUTENANT IN THE AIR FORCE RESERVE; THAT HE WAS SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS FIRST LIEUTENANT IN THE UNITED STATES AIR FORCE, AND THAT HE CONTINUED TO SERVE UNDER SUCH TEMPORARY APPOINTMENT AFTER HIS APPOINTMENT IN THE REGULAR AIR FORCE. THE COURT DID NOT CONSIDER THE CASE OF AN OFFICER WHO HELD ONLY AN APPOINTMENT IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, AT THE TIME OF APPOINTMENT TO A REGULAR COMPONENT. WE HELD, HOWEVER, IN 36 COMP. GEN. 645, ANSWER TO QUESTION A, THAT SUCH AN OFFICER WOULD NOT BE ENTITLED TO MUSTERING-OUT PAY UNLESS HE WAS DISCHARGED OR RELEASED FROM HIS ARMY OR AIR FORCE OF THE UNITED STATES STATUS AT THE TIME OF APPOINTMENT IN THE REGULAR COMPONENT. IN THE DOWLING CASE THE COURT HELD, AS INDICATED ABOVE, THAT ENTITLEMENT SHOULD NOT TURN ON THE QUESTION OF WHETHER THERE WAS A BREAK IN SERVICE AT THE TIME OF APPOINTMENT IN A REGULAR COMPONENT. IT CONCLUDED THAT THE OPTION CLAUSE PERMITTING AN OFFICER TO RECEIVE PAYMENT UPON APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES, WAS TO ENCOURAGE OFFICERS TO CHOOSE A MILITARY CAREER AND CONTINUE ON ACTIVE DUTY BY ACCEPTING APPOINTMENTS IN A REGULAR COMPONENT RATHER THAN REVERT TO AN INACTIVE RESERVE STATUS AS WOULD BE THE CASE WHEN THE TEMPORARY APPOINTMENTS EVENTUALLY TERMINATED. SUCH REASONING APPEARS EQUALLY APPLICABLE TO THE CASE OF OFFICERS WHO HAD NO RESERVE STATUS BUT HELD ONLY TEMPORARY APPOINTMENTS IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, WHEN APPOINTED IN A REGULAR COMPONENT. THEREFORE, WE CONSIDER THAT, IN VIEW OF THE BROAD LANGUAGE OF THE DOWLING DECISION, PAYMENT OF MUSTERING-OUT PAY IS AUTHORIZED IN THOSE CASES ALSO, IF OTHERWISE PROPER. THE DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, AND OTHER SIMILAR DECISIONS ARE MODIFIED ACCORDINGLY.

SECTION 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 9, 38 U.S.C. 691C (1952 USED.), PROVIDED THAT MUSTERING-OUT PAYMENT AUTHORIZED BY THAT ACT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE. THAT SECTION WAS AMENDED BY SECTION 7 (B) OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 540, 38 U.S.C. 691C (1952 USED.), TO AUTHORIZE MUSTERING-OUT PAYMENT TO BE RECEIVED BY MEMBERS, AT THEIR OPTION, UPON ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT. SINCE THE 1944 ACT, AS AMENDED, IS SUBSTANTIALLY SIMILAR TO THE 1952 ACT CONSIDERED BY THE COURT, THE ANSWER TO QUESTION 2A IS IN THE AFFIRMATIVE.

THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES (WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE) IS BARRED UNLESS RECEIVED BY THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUED. THIS IS SUBJECT TO THE FURTHER PROVISION THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN 5 YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN 5 YEARS AFTER PEACE IS ESTABLISHED. THE DECISION OF THE COURT OF CLAIMS IN THE DOWLING CASE DID NOT CREATE A NEW RIGHT TO MUSTERING-OUT PAYMENT. THE RIGHT EXISTED UNDER THE STATUTE FROM THE TIME THE CONDITIONS FOR PAYMENT WERE MET. THE COURT DID NOT CHANGE ANY INTERPRETATION IT HAD MADE BUT MERELY PLACED AN INTERPRETATION ON THE STATUTE DIFFERENT FROM THE WAY WE HAD INTERPRETED IT. SUCH CHANGE IN CONSTRUCTION OF THE STATUTE DOES NOT AFFECT THE RUNNING OF THE 10-YEAR LIMITATION PERIOD. SEE DECISION OF APRIL 15, 1958, B-135691, TO THE SECRETARY OF THE NAVY. THEREFORE, THE ANSWER TO QUESTION 2B IS IN THE AFFIRMATIVE AS TO THE 1944 ACT, AS AMENDED, WITH RESPECT TO RELEASE OR DISCHARGE ON OR AFTER JUNE 1, 1945. 36 COMP. GEN. 645. THE SAME WILL BE TRUE UNDER THE 1952 ACT WITH RESPECT TO RELEASE OR DISCHARGE AFTER JULY 16, 1952, SINCE THE ACTS ARE SIMILAR.

SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 50 U.S.C. APP. 525, PROVIDES THAT THE PERIOD OF MILITARY SERVICE SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY LAW FOR THE BRINGING OF ANY ACTION OR PROCEEDING BY OR AGAINST ANY PERSON IN MILITARY SERVICE, WHETHER THE CAUSE OF ACTION OR RIGHT SHALL HAVE ACCRUED PRIOR TO OR DURING THE PERIOD OF SUCH SERVICE. IN 36 COMP. GEN. 645, 648, IT WAS HELD THAT SECTION 205 MUST BE CONSIDERED AS EXTENDING THE 10-YEAR PERIOD UNDER THE 1940 BARRING ACT WITH RESPECT TO THE RIGHT OF A MEMBER TO RECEIVE MUSTERING-OUT PAYMENT UNDER THE 1944 ACT, AS AMENDED, INCIDENT TO DISCHARGE ON OR AFTER JUNE 1, 1945. THEREFORE, QUESTION 2C IS ANSWERED IN THE AFFIRMATIVE AS TO BOTH ACTS.

SECTION 503 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, AS AMENDED, NOW CODIFIED IN 38 U.S.C. 2104, PROVIDES FOR PAYMENT TO ANY MEMBER ENTITLED TO A MUSTERING-OUT PAYMENT WHO WAS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BEFORE JULY 16, 1952, IF APPLICATION THEREFOR WAS MADE BEFORE JULY 17, 1959. SINCE THAT SPECIFIC PERIOD MAY NOT BE EXTENDED BY SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, THE ANSWER TO QUESTION 2D IS IN THE AFFIRMATIVE EXCEPT IN THOSE CASES WHERE IT IS SHOWN THAT APPLICATION WAS MADE BEFORE JULY 17, 1959. 37 COMP. GEN. 475.

AS TO QUESTION 2E, THE ANSWERS TO QUESTION 2B, C, AND D WOULD BE DIFFERENT UNDER PART (1) AND PART (2) SINCE UNDER PART (1) IF PAYMENT WAS MADE TO THE OFFICER AND LATER RECOUPED BY THE GOVERNMENT, THE 10 YEAR STATUTE WOULD RUN FROM THE DATE OF RECOUPMENT SINCE THAT IS WHEN THE CURRENT RIGHT TO FILE CLAIM AROSE; AND UNDER PART (2) IF TIMELY APPLICATION FOR PAYMENT WAS MADE THERE WAS COMPLIANCE WITH THE STATUTES AND PAYMENT WOULD BE AUTHORIZED IF OTHERWISE PROPER. AS TO PART (3) OF QUESTION 2E, IF NO APPLICATION WAS MADE THE ANSWERS WOULD BE THE SAME AS THOSE FOR QUESTION 2C. AS TO QUESTION 2D, IF NO APPLICATION FOR PAYMENT WAS MADE THERE WOULD BE NO ENTITLEMENT.

AS TO QUESTION 2F, IF ENTITLEMENT TO MUSTERING-OUT PAYMENT EXISTS, CLAIMS MAY BE SETTLED BY THE SERVICE CONCERNED EXCEPT THAT DOUBTFUL CLAIMS OR CLAIMS BARRED BY THE 1940 ACT SHOULD BE SUBMITTED TO THE U.S. GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C., FOR SETTLEMENT.

WITH RESPECT TO QUESTION 2G, AMOUNTS OF MUSTERING-OUT PAY PREVIOUSLY PAID AND SINCE COLLECTED BUT NOW FOR REPAYMENT UNDER THE DOWLING DECISION MAY BE REFUNDED WITHOUT SPECIFIC CLAIM THEREFOR IN CASES WHERE THE MEMBERS ARE STILL IN THE SERVICE. HOWEVER, WITH RESPECT TO PERSONS ENTITLED WHO ARE NO LONGER IN THE SERVICE, REFUND SHOULD NOT BE MADE UNTIL A SPECIFIC CLAIM IS RECEIVED FROM SUCH PERSONS.

TO THE EXTENT THAT THE CLAIMS CONTEMPLATED BY QUESTION 2H DO NOT COME UNDER THE ANSWER TO QUESTION 2F, QUESTION 2H IS ANSWERED IN THE AFFIRMATIVE. IN CASES WHERE PERSONS IN THIS CATEGORY ARE NO LONGER IN THE SERVICE, THEIR CURRENT ADDRESSES SHOULD BE OBTAINED BEFORE MAKING PAYMENT ON THEIR CLAIMS.