B-150722, MAR. 20, 1963

B-150722, MAR. 20, 1963

TO MR. JACK B. FISHER:

REFERENCE IS MADE TO YOUR LETTERS TO THIS OFFICE OF DECEMBER 22, 23 AND 31, 1962, AND MARCH 7, 1963, YOUR LETTER OF FEBRUARY 23, 1963, TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER, WHICH HAS BEEN REFERRED HERE FOR CONSIDERATION. YOU REQUEST A REVIEW OF THE ACTION TAKEN BY OUROFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, AS MODIFIED BY SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, BARRING YOUR CLAIM FOR $190.80 REPRESENTING COMMUTATION OF SUBSISTENCE WHICH YOU REFUNDED AFTER YOUR WITHDRAWAL FROM AN ADVANCED COURSE OF THE AIR RESERVE OFFICERS' TRAINING CORPS AT WASHBURN MUNICIPAL UNIVERSITY, TOPEKA, KANSAS.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JULY 11, 1962, AND ON DECEMBER 19, 1962, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIM ACCRUED AS OF JANUARY 31, 1950, THE DATE ON WHICH YOU MADE REFUND, AND WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, SUPRA, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES (QUOTING FROM 31 U.S.C. 71A) IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN YOUR LETTERS YOU QUESTION THE STATEMENT THAT YOUR CLAIM FIRST ACCRUED AS OF JANUARY 31, 1950.

IT APPEARS FROM THE INFORMATION OF RECORD THAT SHORTLY AFTER MAKING APPLICATION ON SEPTEMBER 16, 1948, FOR ENROLLMENT IN THE ADVANCED COURSE OF AIR RESERVE OFFICERS' TRAINING CORPS AT WASHBURN MUNICIPAL UNIVERSITY, YOU WERE ENROLLED IN THE COURSE AND AGREED THAT IN CONSIDERATION OF SUCH ENROLLMENT AND COMMUTATION OF SUBSISTENCE TO BE FURNISHED IN ACCORDANCE WITH LAW (SECTION 47C OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 9387), YOU WOULD COMPLETE THE COURSE AND ATTEND SUCH SUMMER TRAINING ENCAMPMENTS HELD IN CONNECTION THEREWITH. IT FURTHER APPEARS THAT IT WAS ADMINISTRATIVELY DETERMINED THAT YOU WERE IN DEFAULT OF YOUR AGREEMENT INASMUCH AS YOU DID NOT ATTEND THE 1949 AIR RESERVE OFFICERS' TRAINING CORPS SUMMER ENCAMPMENT AND WERE WITHDRAWN FROM THE COURSE. ON JANUARY 31, 1950, YOU REFUNDED THE AMOUNT PAID YOU AS COMMUTATION OF SUBSISTENCE ($190.80) AND, THEREAFTER, ON SEPTEMBER 19, 1950, YOUR APPLICATION FOR REINSTATEMENT IN THE AIR RESERVE OFFICERS' TRAINING CORPS PROGRAM WAS APPROVED. YOU SUCCESSFULLY COMPLETED THE PROGRAM ON JUNE 3, 1951, IN ACCORDANCE WITH EXISTING REGULATIONS.

AS SUGGESTED IN YOUR COMMUNICATIONS, SINCE THE REFUND, WHICH WAS PROPERLY DUE THE UNITED STATES BY REASON OF YOUR DEFAULT, WAS MADE WHILE YOU WERE SEPARATED FROM THE TRAINING PROGRAM, ANY ENTITLEMENT TO RETURN OF THE REFUND WAS NECESSARILY DEPENDENT UPON THE HAPPENING OF SUBSEQUENT EVENTS AND YOUR CLAIM MAY NOT REASONABLY BE VIEWED AS HAVING ACCRUED SIMULTANEOUSLY WITH THE REFUND.

ARMY REGULATIONS NO. 145-10, DATED MAY 28, 1931, ISSUED BY ORDER OF THE SECRETARY OF WAR TO IMPLEMENT THE AUTHORITY CONTAINED IN SECTIONS 40-47 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 9382-9387, FOR ADMINISTRATION OF THE RESERVE OFFICERS' TRAINING CORPS PROGRAMS IN CIVIL EDUCATIONAL INSTITUTIONS, PROVIDES IN PARAGRAPH 23B AS FOLLOWS:

"CORPS AREA COMMANDERS ARE AUTHORIZED TO ADJUST CASES INVOLVING THE WITHDRAWAL OF MEMBERS OF THE RESERVE OFFICERS' TRAINING CORPS FROM, OR RETURN TO, ADVANCED COURSE CONTRACTS UPON THE MERITS OF THE INDIVIDUAL CASES. EXCEPT IN CASES WHERE WITHDRAWAL FROM THE CONTRACT IS FOR THE CONVENIENCE OF THE GOVERNMENT, THE STUDENT SHOULD BE REQUIRED TO REFUND TO THE GOVERNMENT ANY SUMS PREVIOUSLY PAID TO HIM AS COMMUTATION OF SUBSISTENCE.'

HENCE, SINCE THE PERTINENT REGULATION AUTHORIZED THE CORPS AREA COMMANDERS TO ADJUST CASES INVOLVING THE RETURN OF RESERVE OFFICERS' TRAINING CORPS MEMBERS TO THEIR ADVANCED COURSE CONTRACTS, IT NECESSARILY FOLLOWS THAT PURSUANT TO THAT PROVISION YOU COULD HAVE APPLIED FOR SUCH AN ADJUSTMENT UPON YOUR REINSTATEMENT IN THE AIR RESERVE OFFICERS' TRAINING CORPS PROGRAM AND WHATEVER CLAIM YOU HAD MUST BE REGARDED AS HAVING FIRST ACCRUED WITHIN THE CONTEMPLATION OF THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, ON SEPTEMBER 19, 1950, THE DATE YOUR REINSTATEMENT WAS APPROVED.

INASMUCH AS YOUR CLAIM WAS RECEIVED IN THIS OFFICE ON JULY 11, 1962, AND YOU HAD ONLY ONE YEAR, NINE MONTHS AND TWELVE DAYS OF MILITARY SERVICE FOR EXCLUSION UNDER THE PROVISIONS OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, SUPRA, IN THE COMPUTATION OF THE 10 YEAR PERIOD, MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE YOUR CLAIM FIRST ACCRUED AND THE DATE WHEN IT WAS RECEIVED HERE.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION OF RETURNING YOUR CLAIM TO YOU TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, SUPRA, IS SUSTAINED.

REGARDING THE REQUEST CONTAINED IN YOUR RECENT LETTER FOR A COPY OF THE CONTRACT WHICH YOU WERE REQUIRED TO SIGN UPON ENROLLMENT IN THE ADVANCED COURSE OF TRAINING, YOU ARE ADVISED THAT INASMUCH AS SUCH CONTRACT WAS NOT INCLUDED WITH THE MATERIAL FORWARDED HERE BY THE DEPARTMENT OF THE AIR FORCE WE ARE UNABLE TO FURNISH YOU A COPY AS REQUESTED.