B-163261, MAR. 22, 1968
Highlights
RABILLO: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20. OUR FILE SHOWS THAT YOUR CLAIMS INCIDENT TO YOUR DISCHARGE FROM THE ARMY IN 1919 WERE THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED NOVEMBER 29. IN WHICH YOU WERE ADVISED THAT SUCH CLAIMS WERE BARRED BY THE ACT OF OCTOBER 9. YOU NOW CONTEND THAT YOU WERE UNAWARE OF THIS LAW AND. SINCE YOU WERE NEVER PROVIDED WITH NOTICE OF ITS PROVISIONS. THE FACT THAT YOU WERE NEVER GIVEN NOTICE OF THE ACT OF OCTOBER 9. SINCE THERE IS NO AUTHORITY OF LAW BY WHICH THIS OFFICE MAY WAIVE ANY OF THE PROVISIONS OF THE 1940 ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION IMPOSED. THE MUSTERING-OUT PAYMENT LAW TO WHICH YOU APPARENTLY REFER WAS THE MUSTERING-OUT PAYMENT ACT OF 1944.
B-163261, MAR. 22, 1968
TO MR. GREGORIO E. RABILLO:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20, 1968, WHEREIN YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY OR SIX MONTHS' GRATUITY PAY, WHICH YOU BELIEVE TO BE DUE INCIDENT TO YOUR DISCHARGE FROM THE UNITED STATES ARMY IN 1919. YOU NOW PRESENT A CLAIM FOR THE SAME PAY INCIDENT TO YOUR DISCHARGES FROM THE UNITED STATES NAVY IN 1923 AND 1927.
OUR FILE SHOWS THAT YOUR CLAIMS INCIDENT TO YOUR DISCHARGE FROM THE ARMY IN 1919 WERE THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED NOVEMBER 29, 1966, AND JANUARY 30, 1967, IN WHICH YOU WERE ADVISED THAT SUCH CLAIMS WERE BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AS AMENDED, 31 U.S.C. 71A. THAT ACT READS IN PERTINENT PART:
"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TENFULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'
YOU NOW CONTEND THAT YOU WERE UNAWARE OF THIS LAW AND, SINCE YOU WERE NEVER PROVIDED WITH NOTICE OF ITS PROVISIONS, THAT WE SHOULD GIVE CONSIDERATION TO YOUR CLAIM. THE FACT THAT YOU WERE NEVER GIVEN NOTICE OF THE ACT OF OCTOBER 9, 1940, PROVIDES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY CONSIDER YOUR CLAIMS, SINCE THERE IS NO AUTHORITY OF LAW BY WHICH THIS OFFICE MAY WAIVE ANY OF THE PROVISIONS OF THE 1940 ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION IMPOSED.
WHILE YOU CONTEND THAT THE ACT OF OCTOBER 9, 1940, SHOULD NOT BAR CONSIDERATION OF YOUR CLAIMS UNDER THE CIRCUMSTANCES YOU RELATE, NO PAYMENT COULD BE MADE IN ANY EVENT. THE MUSTERING-OUT PAYMENT LAW TO WHICH YOU APPARENTLY REFER WAS THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8. THAT ACT AUTHORIZED PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO WERE DISCHARGED OR RELEASED FROM ACTIVE DUTY ON OR AFTER DECEMBER 7, 1941. SINCE YOUR SERVICE IN THE UNITED STATES ARMY AND NAVY TERMINATED BEFORE THAT DATE, NO MUSTERING-OUT PAYMENT CAN BE MADE TO YOU BY VIRTUE OF THAT ACT. THE SIX MONTHS' DEATH GRATUITY IS PAYABLE ONLY IN THE CASE OF DEATH AND HENCE COULD NOT BE MADE TO YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY OR NAVY.