B-152539, NOV. 29, 1963

B-152539, NOV. 29, 1963

TO MAJOR ANTHONY B. PETRUZZI:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1963, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF JULY 12, 1963, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO THE TERMINATION OF YOUR ACTIVE SERVICE AS A RESERVE OFFICER UPON INTEGRATION IN THE REGULAR ARMY ON SEPTEMBER 18, 1951.

OUR FILE SHOWS THAT PURSUANT TO DEPARTMENT OF THE ARMY CIRCULAR NO. 35-5, DATED JULY 20, 1962, WHICH WAS ISSUED ON THE BASIS OF OUR DECISION OF JUNE 21, 1962, B-139107, 41 COMP. GEN. 812, AND THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF DOWLING V. UNITED STATES, CT.CL.NO. 174-60, DECIDED FEBRUARY 7, 1962, YOU PRESENTED A CLAIM TO THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, ON SEPTEMBER 4, 1962, FOR THE MUSTERING-OUT PAY BELIEVED TO BE DUE UNDER TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, APPROVED JULY 16, 1952, CH. 875, 66 STAT. 688, AS AMENDED (REENACTED AND CODIFIED AS 38 U.S.C. 2101-2105). DECEMBER 28, 1962, YOU FURNISHED INFORMATION TO THE EFFECT THAT ON OR ABOUT APRIL 18, 1958, YOU APPLIED FOR THE MUSTERING-OUT PAY THROUGH THE ADJUTANT GENERAL SECTION, HEADQUARTERS USCONARC, FORT MONROE, VIRGINIA, AND THAT WHILE YOU RECALLED THE DENIAL OF THE CLAIM BY REASON OF AN EARLIER DECISION OF OUR OFFICE, NEITHER THE FILES OF THAT SECTION NOR YOUR PERSONAL FILE CONTAINS A COPY OF THE APPLICATION.

IN VIEW OF THE PROVISION IN 38 U.S.C. 2104 PRECLUDING PAYMENT OF MUSTERING-OUR PAY UNDER THE 1952 ACT, AS AMENDED, UNLESS APPLICATION FOR PAYMENT WAS MADE PRIOR TO JULY 17, 1959, AND THE LACK OF ANY EVIDENCE SUPPORTING YOUR STATEMENT THAT AN APPLICATION FOR THE MUSTERING-OUT PAY WAS FILED BY YOU PRIOR TO THAT DATE, YOU WERE ADVISED THAT NO FAVORABLE ACTION COULD BE TAKEN ON YOUR CLAIM. WHEN YOU SUBMITTED THE MATTER TO THIS OFFICE FOR CONSIDERATION YOU ASSERTED THAT UNDER PARAGRAPH 11, ARMY REGULATIONS 640-10, WHICH PROVIDES FOR THE WITHDRAWAL AND DESTRUCTION OF TEMPORARY DOCUMENTS FROM THE "201 FILE" WHEN THAT FILE IS FORWARDED, THE RECORDS PERTAINING TO YOUR CLAIM HAVE SINCE BEEN DESTROYED. ON JULY 12, 1963, OUR CLAIMS DIVISION ADVISED YOU THAT IN THE ABSENCE OF EVIDENCE FROM OFFICIAL SOURCES THAT YOU MADE APPLICATION TO THE SECRETARY OF THE ARMY FOR THE MUSTERING-OUT PAYMENT BEFORE JULY 17, 1959, AS REQUIRED BY 38 U.S.C. 2104, NO AUTHORITY EXISTED FOR THE ALLOWANCE OF YOUR CLAIM. YOU NOW EXPRESS THE BELIEF THAT THE DENIAL OF YOUR CLAIM BY THE POST ADMINISTRATION OFFICER AT FORT MONROE, VIRGINIA, WAS DUE TO CONFUSION ALLEGED TO HAVE BEEN CAUSED BY OUR DECISIONS AND YOU MAINTAIN, THEREFORE, THAT YOU SHOULD NOT BE DEPRIVED OF THE MUSTERING-OUT PAYMENT ON THIS ACCOUNT.

IT IS CLEAR THAT AS A PREREQUISITE TO YOUR ENTITLEMENT TO THE MUSTERING- OUT PAY UNDER THE 1952 LAW, AS AMENDED, THERE MUST BE A SHOWING THAT YOU HAD FILED AN APPLICATION THEREFOR PRIOR TO JULY 17, 1959. WHILE YOU STATE THAT YOU INITIALLY FILED A CLAIM FOR THE MUSTERING-OUT PAY ON OR ABOUT APRIL 18, 1958, SUCH STATEMENT DOES NOT FURNISH SUFFICIENT BASIS FOR ALLOWANCE OF YOUR CLAIM IN THE ABSENCE OF CORROBORATING EVIDENCE FROM AN OFFICIAL SOURCE. THE RULE IS WELL ESTABLISHED THAT THOSE ASSERTING CLAIMS AGAINST THE UNITED STATES HAVE THE BURDEN OF ESTABLISHING THEIR VALIDITY AND THAT THE ACCOUNTING OFFICERS ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS NOT SO ESTABLISHED. SEE 18 COMP. GEN. 980; LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1882) AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884).

CONCERNING YOUR INQUIRY AS TO THE "TITLE AND ADDRESS WHERE I MAY SUBMIT RENEWAL OF MY CLAIM," YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ARE FINAL AND CONCLUSIVE ON ALL OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 74. YOU MAY, OF COURSE, FILE SUIT AGAINST THE GOVERNMENT FOR THE AMOUNT INVOLVED, IN THE UNITED STATES COURT OF CLAIMS.

IN CONNECTION WITH THIS MATTER, IT IS CONSIDERED APPROPRIATE TO MENTION THAT ON SEPTEMBER 10, 1963, THERE WAS INTRODUCED IN THE HOUSE OF REPRESENTATIVES A BILL, H.R. 8374, TO AMEND 38 U.S.C. 2104 TO EXTEND THE TIME FOR THE FILING OF APPLICATIONS FOR MUSTERING-OUT PAY UNDER THE 1952 LAW, AS AMENDED, TO JANUARY 31, 1965.