B-142124, APR. 14, 1960

B-142124: Apr 14, 1960

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DAVID: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 6. WHICH WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON FEBRUARY 1. YOU WERE GRANTED LEAVE TO PROCEED TO YOUR HOME AT ADA. YOU WERE CALLED TO ACTIVE DUTY ON JUNE 18. ADVISED YOU THAT AN ENLISTMENT IN THE NAVAL RESERVE IS NOT TANTAMOUNT TO AN ORDER PLACING A MEMBER ON ACTIVE DUTY. A MEMBER IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES ONLY WHEN EMPLOYED ON ACTIVE DUTY PURSUANT TO AN ORDER TO ACTIVE DUTY ISSUED BY COMPETENT AUTHORITY. SINCE THE RECORDS FAILED TO DISCLOSE COMPETENT ACTIVE DUTY ORDERS WERE ISSUED AT THE TIME OF YOUR ENLISTMENT IN THE NAVAL RESERVE ON FEBRUARY 2. IT WAS CONCLUDED THAT THERE WAS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

B-142124, APR. 14, 1960

TO MR. MAX A. DAVID:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 6, 1960, WHICH WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON FEBRUARY 1, 1960, IN DISALLOWING YOUR CLAIM FOR ARREARS OF PAY BELIEVED DUE FOR THE PERIOD FEBRUARY 2 TO JUNE 18, 1942, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVAL RESERVE.

AT THE TIME YOU ENLISTED IN THE NAVAL RESERVE AT THE NAVAL RECRUITING STATION, OKLAHOMA CITY, OKLAHOMA, FEBRUARY 2, 1942, YOU WERE GRANTED LEAVE TO PROCEED TO YOUR HOME AT ADA, OKLAHOMA, AND AWAIT FURTHER ORDERS. YOU WERE CALLED TO ACTIVE DUTY ON JUNE 18, 1942, AND CONTINUED IN AN ACTIVE DUTY STATUS UNTIL NOVEMBER 22, 1945.

THE DISALLOWANCE OF FEBRUARY 1, 1960, ADVISED YOU THAT AN ENLISTMENT IN THE NAVAL RESERVE IS NOT TANTAMOUNT TO AN ORDER PLACING A MEMBER ON ACTIVE DUTY. A MEMBER IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES ONLY WHEN EMPLOYED ON ACTIVE DUTY PURSUANT TO AN ORDER TO ACTIVE DUTY ISSUED BY COMPETENT AUTHORITY. SINCE THE RECORDS FAILED TO DISCLOSE COMPETENT ACTIVE DUTY ORDERS WERE ISSUED AT THE TIME OF YOUR ENLISTMENT IN THE NAVAL RESERVE ON FEBRUARY 2, 1942, IT WAS CONCLUDED THAT THERE WAS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

YOUR LETTER REQUESTS THAT WE CONSIDER YOUR SERVICE RECORD WHICH, YOU STATE, SHOWS THAT YOUR NET SERVICE FOR PAY PURPOSES WAS 3 YEARS, 9 MONTHS AND 21 DAYS, THUS INDICATING THAT YOUR SERVICE FROM FEBRUARY 2, 1942, TO JUNE 18, 1942, WAS IN AN ACTIVE DUTY STATUS. WHILE THE SERVICE RECORD TO WHICH YOU REFER IS NOT AVAILABLE IN THIS OFFICE, YOUR PAY RECORD SHOWS THAT YOU WERE CREDITED WITH THE PAY OF AN ENLISTED MAN HAVING THREE YEARS' SERVICE COMMENCING FEBRUARY 2, 1945. SUCH ACTION WAS IN CONFORMITY WITH THE PROVISIONS OF SECTION 3A AND 9 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 37 U.S.C. 103A, 109 (1946 ED.), WHICH ENTITLED AN ENLISTED MAN OF THE NAVAL RESERVE TO COUNT BOTH ACTIVE AND INACTIVE TIME IN THE NAVAL RESERVE AS FULL TIME FOR (LONGEVITY) PAY PURPOSES UNDER THAT ACT. THERE IS NO INCONSISTENCY BETWEEN YOUR PAY RECORD AND THE CONCLUSION THAT YOUR SERVICE FROM FEBRUARY 2 TO JUNE 18, 1942, WAS NOT ACTIVE DUTY SERVICE.

YOUR ATTENTION IS ALSO INVITED TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, WHICH BAR CONSIDERATION OF ANY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT MATERIAL HEREIN), UNLESS THE CLAIM IS RECEIVED IN SAID OFFICE WITHIN 10 YEARS AFTER THE DATE IT FIRST ACCRUED. WHILE A CLAIM FOR "QUARTERS AND SUBSISTENCE" FOR THE PERIOD INVOLVED WAS RECEIVED FROM YOU ON NOVEMBER 27, 1945, YOUR PRESENT CLAIM FOR "BACK PAY" (ACTIVE DUTY PAY) WAS NOT RECEIVED UNTIL NOVEMBER 30, 1959. EVEN IF SUCH CLAIM WERE OTHERWISE PROPER, FAVORABLE ACTION THEREON WOULD BE BARRED BY THE 1940 ACT.