B-146502, AUG. 29, 1961

B-146502: Aug 29, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LEONARD CONNORS: REFERENCE IS MADE TO YOUR LETTER OF JULY 15. IS BARRED BY THE ACT OF OCTOBER 9. IN YOUR LETTER YOU CONCEDE THAT THE DATE YOU SUBMITTED YOUR CLAIM TO THIS OFFICE FOR MUSTERING-OUT PAY WAS LONG SUBSEQUENT TO THE 10-YEAR PERIOD DURING WHICH A CLAIM MUST BE SUBMITTED HERE UNDER THE ACT OF OCTOBER 9. AS YOU HAVE BEEN ADVISED IN OUR PREVIOUS LETTERS. THE CLAIM MUST BE RECEIVED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. FOR THE PURPOSE OF THAT ACT PEACE WAS ESTABLISHED JULY 25. ANOTHER EXCEPTION IS PROVIDED IN SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940. MILITARY SERVICE" IS DEFINED AS SIGNIFYING FEDERAL SERVICE ON ACTIVE DUTY WITH ANY BRANCH OF SERVICE MENTIONED IN THAT SECTION.

B-146502, AUG. 29, 1961

TO MR. LEONARD CONNORS:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1961, WITH WHICH YOU RETURNED OUR LETTER OF JULY 14, 1961, FILE REFERENCE 2-2121255, WHICH SUSTAINED OUR PREVIOUS ACTION ADVISING THAT YOUR CLAIM FOR MUSTERING OUT PAY, INCIDENT TO YOUR SERVICE IN THE ARMY AT DATE OF DISCHARGE SEPTEMBER 1, 1945, IS BARRED BY THE ACT OF OCTOBER 9, 1940. YOU REQUEST FURTHER CONSIDERATION OF OUR ACTION ON THE BASIS THAT THE TIME SPENT AS A SERVICE CONNECTED PATIENT AT VETERANS ADMINISTRATION HOSPITALS SHOULD BE COUNTED TO STOP THE RUNNING OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237.

IN YOUR LETTER YOU CONCEDE THAT THE DATE YOU SUBMITTED YOUR CLAIM TO THIS OFFICE FOR MUSTERING-OUT PAY WAS LONG SUBSEQUENT TO THE 10-YEAR PERIOD DURING WHICH A CLAIM MUST BE SUBMITTED HERE UNDER THE ACT OF OCTOBER 9, 1940. HOWEVER, YOU BELIEVE THAT YOU CAN AVAIL YOURSELF OF AN EXCEPTION IN THE ACT RELATIVE TO MILITARY SERVICE. YOU SAY SUCH SERVICE CONSISTED OF TIME AS A SERVICE CONNECTED PATIENT IN VETERANS ADMINISTRATION HOSPITALS.

AS YOU HAVE BEEN ADVISED IN OUR PREVIOUS LETTERS, THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PRECLUDES OUR OFFICE FROM CONSIDERING ANY CLAIM UNLESS RECEIVED HERE WITHIN 10 YEARS AFTER THE DATE IT FIRST ACCRUED WITH THE EXCEPTION THAT IF WAR INTERVENES, THE CLAIM MUST BE RECEIVED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. FOR THE PURPOSE OF THAT ACT PEACE WAS ESTABLISHED JULY 25, 1947, AND YOUR CLAIM DOES NOT COME WITHIN THAT EXCEPTION. ANOTHER EXCEPTION IS PROVIDED IN SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, 50 U.S.C. APP. 525, WHICH STATES THAT THE "PERIOD OF MILITARY SERVICE" SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY ANY LAW FOR BRINGING OF ANY ACTION BY OR AGAINST ANY "PERSON IN MILITARY SERVICE.' SECTION 101 OF THAT ACT, 54 STAT. 1179, 50 U.S.C. APP. 511, DEFINES "PERSONS IN MILITARY SERVICE" AS USED IN THAT ACT, TO INCLUDE ONLY MEMBERS OF THE ARMY OF THE UNITED STATES, THE UNITED STATES NAVY, THE MARINE CORPS, THE COAST GUARD AND ALL OFFICERS OF THE PUBLIC HEALTH SERVICE DETAILED BY PROPER AUTHORITY FOR DUTY EITHER WITH THE ARMY OR THE NAVY. THE TERM ,MILITARY SERVICE" IS DEFINED AS SIGNIFYING FEDERAL SERVICE ON ACTIVE DUTY WITH ANY BRANCH OF SERVICE MENTIONED IN THAT SECTION, AS WELL AS TRAINING OR EDUCATION UNDER THE SUPERVISION OF THE UNITED STATES, PRELIMINARY TO INDUCTION INTO THE MILITARY SERVICE.

IT MAY BE SEEN, THEREFORE, THAT THE TIME SPENT AS A SERVICE CONNECTED PATIENT IN VETERANS ADMINISTRATION HOSPITALS MAY NOT BE CONSIDERED SUCH SERVICE AS TO TOLL THE RUNNING OF THE BARRING ACT. ACCORDINGLY, THIS OFFICE IS PRECLUDED FROM CONSIDERING YOUR CLAIM BY THE EXPRESS TERMS OF THE ACT OF OCTOBER 9, 1940.

IT APPEARS THAT YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY IS BASED ON THE FACT THAT IN 1943 YOU CROSSED THE BORDER INTO CANADA WHILE BEING TRANSFERRED BETWEEN DUTY STATIONS IN THE UNITED STATES. IN A DECISION DATED DECEMBER 31, 1948, 28 COMP. GEN. 386, WE HELD THAT MEMBERS WHO TRAVELED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES INCIDENT TO A CHANGE OF DUTY STATION FROM ONE POINT IN THE UNITED STATES TO ANOTHER POINT IN THE UNITED STATES, ONLY, MAY NOT BE REGARDED AS HAVING PERFORMED "SERVICE" OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHIN THE MEANING OF THE MUSTERING-OUT PAYMENT ACT OF 1944, IN THE ABSENCE OF A "DECISION" BY THE SECRETARY CONCERNED TO THE CONTRARY UNDER SECTION 5 (B) OF THAT ACT. THUS, IT IS DOUBTFUL THAT YOU WOULD HAVE BEEN ENTITLED TO ADDITIONAL MUSTERING-OUT PAY EVEN IF YOUR CLAIM HAD BEEN TIMELY PRESENTED.