B-143345, AUG. 12, 1960

B-143345: Aug 12, 1960

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ACISCLO VARGAS GONZALEZ: REFERENCE IS MADE TO YOUR LETTER OF MAY 29. PROVIDED APPLICATION THEREFOR WAS RECEIVED PRIOR TO FEBRUARY 3. YOU WERE ALSO ADVISED THAT IF YOU WERE DISCHARGED PRIOR TO DECEMBER 7. THERE WAS NO AUTHORITY FOR PAYMENT OF MUSTERING-OUT PAY TO YOU. THAT IF YOU WERE DISCHARGED SUBSEQUENT TO THAT DATE. PAYMENT OF SUCH PAY WAS NOT AUTHORIZED. SINCE APPLICATION THEREFOR WAS NOT RECEIVED PRIOR TO FEBRUARY 3. YOU WERE LIKEWISE ADVISED THAT YOUR CLAIM FOR ACTIVE DUTY PAY WAS BARRED PURSUANT TO THE ACT OF OCTOBER 9. WHICH ACT PROVIDES THAT ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER SUCH CLAIM FIRST ACCRUED IS BARRED. REFERENCE ALSO WAS MADE TO YOUR APPLICATION ON FEBRUARY 3.

B-143345, AUG. 12, 1960

TO MR. ACISCLO VARGAS GONZALEZ:

REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1960, CONCERNING YOUR CLAIM FOR AMOUNTS BELIEVED TO BE DUE YOU INCIDENT TO YOUR ENLISTED SERVICE IN THE UNITED STATES ARMY.

AFTER THE RECEIPT HERE FROM THE DEPARTMENT OF THE ARMY, ON FEBRUARY 2, 1960, OF YOUR CLAIM, OUR CLAIMS DIVISION BY SETTLEMENT DATED MARCH 4, 1960, ADVISED YOU, WITH RESPECT TO YOUR CLAIM FOR MUSTERING-OUT PAY, THAT THE ACT OF FEBRUARY 3, 1944, 58 STAT. 8, AS AMENDED, PROVIDED FOR A PAYMENT OF SUCH MUSTERING-OUT PAY ONLY TO MEMBERS DISCHARGED ON OR AFTER DECEMBER 7, 1941, PROVIDED APPLICATION THEREFOR WAS RECEIVED PRIOR TO FEBRUARY 3, 1950. YOU WERE ALSO ADVISED THAT IF YOU WERE DISCHARGED PRIOR TO DECEMBER 7, 1941, THERE WAS NO AUTHORITY FOR PAYMENT OF MUSTERING-OUT PAY TO YOU, AND THAT IF YOU WERE DISCHARGED SUBSEQUENT TO THAT DATE, PAYMENT OF SUCH PAY WAS NOT AUTHORIZED, SINCE APPLICATION THEREFOR WAS NOT RECEIVED PRIOR TO FEBRUARY 3, 1950.

YOU WERE LIKEWISE ADVISED THAT YOUR CLAIM FOR ACTIVE DUTY PAY WAS BARRED PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH ACT PROVIDES THAT ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER SUCH CLAIM FIRST ACCRUED IS BARRED. LATER, AFTER THE RECEIPT OF YOUR LETTER OF MARCH 17, 1960, THE CLAIMS DIVISION, BY LETTER DATED APRIL 8, 1960, ADVISED YOU TO THE SAME EFFECT. REFERENCE ALSO WAS MADE TO YOUR APPLICATION ON FEBRUARY 3, 1960, TO THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS FOR A CORRECTION IN THE CHARACTER OF DISCHARGE AND THE DENIAL OF THAT APPLICATION ON THE SAME DATE. IN THE LETTER OF MAY 29, 1960, IT IS INDICATED THAT YOU ARE REFERRING TO A 1957 LAW AND NOT TO THE LAW PROVIDING FOR A CORRECTION IN THE CHARACTER OF DISCHARGE, AND THAT YOU BELIEVE THAT, SINCE YOU SERVED 90 DAYS OR LONGER SINCE 1940, YOU ARE ENTITLED TO THE SAME RIGHTS AS THOSE WHO SERVED SINCE DECEMBER 7, 1941.

WE ARE NOT AWARE OF ANY LAW WHICH AUTHORIZED FAVORABLE CONSIDERATION OF YOUR CLAIMS. IN THE ABSENCE OF A MORE SPECIFIC REFERENCE TO THE 1957 LAW BY DATE OF ENACTMENT AND NUMBER, WE CANNOT ADVISE YOU AS TO THE EFFECT, IF ANY, SUCH LAW HAS WITH RESPECT TO YOUR CLAIM. HOWEVER, IN CONNECTION WITH YOUR CLAIM FOR MUSTERING-OUT PAY, THE CITED ACT OF FEBRUARY 3, 1944, AS AMENDED, AUTHORIZES PAYMENT OF MUSTERING-OUT PAY ONLY TO THOSE HONORABLY DISCHARGED FROM THE SERVICE. IN VIEW OF YOUR APPLICATION FOR A CORRECTION OF THE CHARACTER OF DISCHARGE, IT APPEARS THAT YOU MAY NOT HAVE BEEN HONORABLY DISCHARGED. IN THAT EVENT YOU WOULD NOT BE ENTITLED TO MUSTERING-OUT PAY REGARDLESS OF THE PERIOD OF YOUR SERVICE. LIKEWISE, AS YOU HAVE BEEN ADVISED, SINCE YOUR CLAIM FOR ACTIVE DUTY PAY WAS NOT RECEIVED HERE UNTIL FEBRUARY 2, 1960, LONG AFTER THE EXPIRATION OF THE 10- YEAR PERIOD WITHIN WHICH CLAIMS MAY BE FILED, FURTHER CONSIDERATION OF YOUR CLAIM FOR SUCH ACTIVE DUTY PAY IS NOT AUTHORIZED.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN THE SETTLEMENT OF MARCH 4, 1960, AND IN THE LETTER OF APRIL 8, 1960, DISALLOWING YOUR CLAIM, IS SUSTAINED.