B-147268, OCT. 9, 1961

B-147268: Oct 9, 1961

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WERE DISCHARGED ON DECEMBER 8. IT WAS AWARDED TO YOU BY THE SECRETARY OF WAR ON JANUARY 31. WAS DELIVERED TO YOU BY LETTER DATED FEBRUARY 21. YOUR CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MAY 28. SINCE THE CLAIM WAS RECEIVED HERE MORE THAN 10 YEARS AFTER IT FIRST ACCRUED IT WAS RETURNED TO YOU BY OUR CLAIMS DIVISION ON JUNE 27. AS YOU HAVE BEEN ADVISED IN LETTERS DATED OCTOBER 15. THE CLAIM MUST BE RECEIVED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. PEACE WAS ESTABLISHED JULY 25. ANOTHER EXCEPTION IS PROVIDED IN SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940. SINCE YOU WERE DISCHARGED IN 1945. SINCE YOUR CLAIM WAS FILED HERE MORE THAN 10 YEARS AFTER IT FIRST ACCRUED THIS OFFICE IS PRECLUDED FROM CONSIDERING IT UNDER THE EXPRESS TERMS OF THE ACT OF OCTOBER 9.

B-147268, OCT. 9, 1961

TO MR. BARTOLOME DE LOS REYES:

YOUR LETTER OF AUGUST 23, 1961, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES RELATIVE TO YOUR CLAIM FOR COMBAT INFANTRYMAN BADGE PAY INCIDENT TO YOUR SERVICE IN THE ARMY OF THE UNITED STATES HAS BEEN REFERRED TO THIS OFFICE FOR CONSIDERATION AND REPLY.

THE RECORD INDICATES THAT YOU ENLISTED IN THE ARMY OF THE UNITED STATES ON JUNE 18, 1945, AND WERE DISCHARGED ON DECEMBER 8, 1945. YOU APPLIED FOR THE COMBAT INFANTRYMAN BADGE ON NOVEMBER 4, 1946. IT WAS AWARDED TO YOU BY THE SECRETARY OF WAR ON JANUARY 31, 1947, AND WAS DELIVERED TO YOU BY LETTER DATED FEBRUARY 21, 1947. BY LETTER OF FEBRUARY 2, 1957, ADDRESSED TO THE DEPARTMENT OF THE ARMY, YOU CLAIMED PAY OF $10 PER MONTH BY REASON OF HAVING BEEN AWARDED THE BADGE. YOUR CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MAY 28, 1957. SINCE THE CLAIM WAS RECEIVED HERE MORE THAN 10 YEARS AFTER IT FIRST ACCRUED IT WAS RETURNED TO YOU BY OUR CLAIMS DIVISION ON JUNE 27, 1957.

AS YOU HAVE BEEN ADVISED IN LETTERS DATED OCTOBER 15, 1957, AND AUGUST 19, 1959, FROM THE CLAIMS DIVISION OF THIS OFFICE, 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 SINCE YOU DID NOT FILE YOUR CLAIM UNTIL 1957, YOU DO 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.' SINCE YOU WERE DISCHARGED IN 1945, THAT EXCEPTION LIKEWISE DOES NOT APPLY TO YOUR CASE, AND NONE OF THE MATTERS MENTIONED IN YOUR LETTER CONSTITUTE AN EXCEPTION UNDER THE LAW.

SINCE YOUR CLAIM WAS FILED HERE MORE THAN 10 YEARS AFTER IT FIRST ACCRUED THIS OFFICE IS PRECLUDED FROM CONSIDERING IT UNDER THE EXPRESS TERMS OF THE ACT OF OCTOBER 9, 1940. THEREFORE, THE ACTION OF OUR CLAIMS DIVISION IN RETURNING THE CLAIM TO YOU IS SUSTAINED. IT MAY BE STATED, HOWEVER, THAT AT THE TIME YOU WERE AWARDED THE COMBAT INFANTRYMAN BADGE, PARAGRAPH 7 OF ARMY REGULATIONS 600-70, DATED AUGUST 6, 1946, PROVIDED THAT THE EFFECTIVE DATE FOR PAY PURPOSES OF SUCH AN AWARD WOULD BE THE DATE OF THE ORDER ANNOUNCING THE AWARD OF THE BADGE UNLESS AN EARLIER EFFECTIVE DATE WAS SPECIFIED IN THE ANNOUNCEMENT. SINCE THE BADGE WAS AWARDED TO YOU AFTER YOUR DISCHARGE FROM THE SERVICE ON DECEMBER 8, 1945, AND AN EARLIER EFFECTIVE DATE WAS NOT SPECIFIED IN THE ORDER OF JANUARY 31, 1947, ANNOUNCING THE AWARD, YOU WOULD NOT HAVE BEEN ENTITLED TO ADDITIONAL PAY ON ACCOUNT OF THE AWARD EVEN IF YOUR CLAIM HAD BEEN RECEIVED HERE WITHIN THE SPECIFIED 10-YEAR PERIOD.