B-162697, NOV. 9, 1967
Highlights
FORMER MEMBER OF ARMY WHO WAS RELEASED FROM ACTIVE DUTY ON OCTOBER 19. TRANSFERRED TO THE ARMY READY RESERVE FROM WHICH HE WAS DISCHARGED IN APRIL 4. MAY NOT HAVE CLAIM FOR COMBAT PAY RECEIVED IN GAO MORE THAN 10 YEARS AFTER DATE OF ACCRUAL CONSIDERED. SINCE CLAIMANT DID NOT HAVE ANY EXTENDED ACTIVE DUTY AFTER TRANSFER TO READY RESERVE. THE CLAIM IS BARRED. MAKL: FURTHER REFERENCE IS MADE TO YOUR RECENT COMMUNICATION IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON MAY 26. IT IS INDICATED THAT YOU WERE TRANSFERRED TO THE ARMY RESERVE AT THAT TIME. WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 20. THE CLAIM WAS RETURNED TO YOU BY LETTER DATED MAY 26.
B-162697, NOV. 9, 1967
ARMED SERVICES - PAY - KOREAN SERVICE DECISION TO FORMER ARMY MEMBER FOR COMBAT PAY INCIDENT TO SERVICE IN KOREA IN 1952. FORMER MEMBER OF ARMY WHO WAS RELEASED FROM ACTIVE DUTY ON OCTOBER 19, 1952, AND TRANSFERRED TO THE ARMY READY RESERVE FROM WHICH HE WAS DISCHARGED IN APRIL 4, 1957, MAY NOT HAVE CLAIM FOR COMBAT PAY RECEIVED IN GAO MORE THAN 10 YEARS AFTER DATE OF ACCRUAL CONSIDERED. ALTHOUGH UNDER 5 U.S.C. APP. 525, MILITARY SERVICE DEFERS CERTAIN CAUSES OF ACTION IT SPECIFICALLY DEFINES ACTIVE MILITARY SERVICE AS "FULL-TIME ACTIVE SERVICE". SINCE CLAIMANT DID NOT HAVE ANY EXTENDED ACTIVE DUTY AFTER TRANSFER TO READY RESERVE, THE CLAIM IS BARRED.
TO MR. ROBERT L. MAKL:
FURTHER REFERENCE IS MADE TO YOUR RECENT COMMUNICATION IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON MAY 26, 1967, DENYING YOUR CLAIM FOR COMBAT PAY INCIDENT TO YOUR SERVICE IN KOREA PRIOR TO YOUR RELEASE FROM ACTIVE DUTY ON OCTOBER 19, 1952. IT IS INDICATED THAT YOU WERE TRANSFERRED TO THE ARMY RESERVE AT THAT TIME.
YOUR CLAIM DATED JULY 26, 1966, WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 20, 1967. IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, THE CLAIM WAS RETURNED TO YOU BY LETTER DATED MAY 26, 1967, WITH A COPY OF THAT ACT WHICH PROVIDES THAT "EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.' YOUR RIGHT TO COMBAT PAY ACCRUED IN 1952.
YOU NOW CALL ATTENTION TO THE FACT THAT YOU WERE NOT DISCHARGED FROM THE ARMY RESERVE (READY RESERVE) UNTIL APRIL 4, 1957, AND THAT YOU HAVE BEEN ADVISED THAT "U.S. ARMY READY RESERVE STATUS IS CONSIDERED AND DEEMED ACTIVE DUTY.' ON THE BASIS OF THOSE FACTS YOU CONTEND THAT YOUR CLAIM RECEIVED IN THIS OFFICE ON FEBRUARY 20, 1967, IS NOT BARRED BY THE 1940 ACT.
IT IS TRUE THAT IN CONSIDERING THE EFFECT OF THE ACT OF OCTOBER 9, 1940, THERE MUST BE CONSIDERED SECTION 205 OF THE SOLDIER'S AND SAILOR'S CIVIL RELIEF ACT OF 1940, APPROVED OCTOBER 17, 1940, CH. 888, 54 STAT. 1181, AS AMENDED, 50 U.S.C. APP. 525, WHICH PROVIDES THAT A 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 THE MILITARY SERVICE, WHETHER THE CAUSE OF ACTION OR RIGHT SHALL HAVE ACCRUED PRIOR TO OR DURING THE PERIOD OF SERVICE. HOWEVER, SECTION 101 (1) OF THE ACT CONTAINS THE FOLLOWING DEFINITION:
"THE TERM -MILITARY SERVICE,- AS USED IN THIS ACT * * * SHALL SIGNIFY FEDERAL SERVICE ON ACTIVE DUTY WITH ANY BRANCH OF SERVICE HERETOFORE REFERRED TO OR MENTIONED AS WELL AS TRAINING OR EDUCATION UNDER THE SUPERVISION OF THE UNITED STATES PRELIMINARY TO INDUCTION INTO THE MILITARY SERVICE.' SECTION 101 (22), TITLE 10, U.S. CODE, DEFINES "ACTIVE DUTY" TO MEAN "FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES.' ALSO, SEE 10 U.S.C. 270 (A). MEMBERS WHO PERFORM SUCH FULL-TIME ACTIVE SERVICE ARE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES.
IT DOES NOT APPEAR THAT YOU PERFORMED ANY PERIOD OF EXTENDED ACTIVE DUTY SUBSEQUENT TO YOUR TRANSFER TO THE READY RESERVE AND SUCH PERIODS OF ACTIVE DUTY FOR TRAINING AS YOU MAY HAVE PERFORMED UNDER 10 U.S.C. 270 (A) WERE NOT OF SUFFICIENT DURATION TO MAKE THE 1940 BARRING ACT INAPPLICABLE IN YOUR CASE.
THE PRIMARY PURPOSE OF THE 1940 ACT WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY OF RETAINING AND GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. NO MATTER HOW MERITORIOUS A BARRED CLAIM MAY BE, THIS OFFICE MAY MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME BE GRANTED WITHIN WHICH CLAIMS MAY BE FILED IN THIS OFFICE. HENCE, CONSIDERATION OF YOUR CLAIM IS PROHIBITED BY LAW AND PAYMENT OF THE AMOUNT CLAIMED IS NOT AUTHORIZED.