B-156036, MAR. 15, 1965

B-156036: Mar 15, 1965

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YOUNG: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17. RELATIVE TO YOUR CLAIM FOR ACTIVE DUTY PAY FOR PERIODS IN 1951 AND 1952 BELIEVED BY YOU TO HAVE ACCRUED ON A PAY RECORD WHICH WAS OPENED IN SEPTEMBER 1950 AND NOT PAID TO YOU AT ANY TIME PRIOR TO YOUR DISCHARGE FROM THE NATIONAL GUARD OF THE UNITED STATES UNDER CONDITIONS OTHER THAN HONORABLE ON MAY 18. YOUR MILITARY SERVICE WAS PERFORMED UNDER THE NAME ALLEN LADD TILLIE. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON JANUARY 12. YOU WERE IN AN ACTUAL ACTIVE DUTY STATUS FROM SEPTEMBER 5. WHEN YOU WERE AGAIN BROUGHT UNDER MILITARY CONTROL AND PLACED IN CONFINEMENT PENDING COURT-MARTIAL. YOU WERE DISCHARGED FROM THE SERVICE ACCORDINGLY ON MAY 18.

B-156036, MAR. 15, 1965

TO MR. ALAN L. YOUNG:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1965, RELATIVE TO YOUR CLAIM FOR ACTIVE DUTY PAY FOR PERIODS IN 1951 AND 1952 BELIEVED BY YOU TO HAVE ACCRUED ON A PAY RECORD WHICH WAS OPENED IN SEPTEMBER 1950 AND NOT PAID TO YOU AT ANY TIME PRIOR TO YOUR DISCHARGE FROM THE NATIONAL GUARD OF THE UNITED STATES UNDER CONDITIONS OTHER THAN HONORABLE ON MAY 18, 1962. YOUR MILITARY SERVICE WAS PERFORMED UNDER THE NAME ALLEN LADD TILLIE. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON JANUARY 12, 1965, AND YOU REQUEST REVIEW OF THAT ACTION.

THE RECORD FURNISHED THIS OFFICE BY THE DEPARTMENT OF THE ARMY SHOWS THAT YOU LAST ENLISTED IN THE NATIONAL GUARD ON MAY 27, 1950, AND REPORTED FOR ACTIVE DUTY ON SEPTEMBER 5, 1950, FOR A 2-YEAR TERM OF SERVICE. YOU WERE IN AN ACTUAL ACTIVE DUTY STATUS FROM SEPTEMBER 5, 1950, TO DECEMBER 16, 1950, FROM JUNE 11, 1951, TO JULY 1, 1951, AND FROM AUGUST 5, 1952, TO AUGUST 8, 1952, AND ABSENT WITHOUT AUTHORITY OR IN CONFINEMENT DURING ALL INTERIM PERIODS AND FROM AUGUST 9, 1952, UNTIL OCTOBER 27, 1961, WHEN YOU WERE AGAIN BROUGHT UNDER MILITARY CONTROL AND PLACED IN CONFINEMENT PENDING COURT-MARTIAL. THE APPROVED SENTENCE OF A GENERAL COURT-MARTIAL, CONVENED DECEMBER 4, 1961, REVIEWED MAY 7, 1962, WHICH FOUND YOU GUILTY OF UNAUTHORIZED ABSENCE FROM MARCH 30, 1952, TO AUGUST 5, 1952, INCLUDED A BAD CONDUCT DISCHARGE, TOTAL FORFEITURES AND CONFINEMENT AT HARD LABOR FOR 6 MONTHS. YOU WERE DISCHARGED FROM THE SERVICE ACCORDINGLY ON MAY 18, 1962.

THE ACT OF OCTOBER 9, 1940, CH. 788. 54 STAT. 1061, PROVIDES THAT CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

ACTIVE DUTY PAY ACCRUES ON A DAY TO DAY BASIS. SINCE YOUR LAST DAY IN AN ACTIVE DUTY STATUS WAS AUGUST 8, 1952, ANY CLAIM FOR PAY FOR THAT DAY WOULD HAVE HAD TO BE FILED IN THE GENERAL ACCOUNTING OFFICE ON OR BEFORE AUGUST 8, 1962, IN ORDER TO BE CONSIDERED FOR PAYMENT AND CLAIM FOR PAY FOR ANY DAY OR DAYS IN AN ACTIVE DUTY STATUS BEFORE AUGUST 8, 1952, WOULD HAVE HAD TO BE FILED NOT LATER THAN 10 YEARS FOLLOWING THE DATE OF SUCH SERVICE.

SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, APPROVED OCTOBER 17, 1940, CH. 888, 54 STAT. 1181, AS AMENDED, 50 APP. U.S.C. 525, PROVIDES THAT IN DETERMINING ANY PERIOD OF LIMITATION FOR THE BRINGING OF ANY ACTION OR PROCEEDING IN A COURT OR AGENCY OF THE GOVERNMENT, THE INDIVIDUAL'S MILITARY SERVICE SHALL NOT BE COUNTED. EFFECT, THEREFORE, THE 10-YEAR PERIOD WITHIN WHICH CLAIMS MUST BE FILED IN GENERAL ACCOUNTING OFFICE IS EXTENDED BY THE PERIOD OF MILITARY SERVICE OCCURRING AFTER ACCRUAL OF THE CLAIM. MILITARY SERVICE IS DEFINED IN SECTION 101 OF THE ACT, 50 APP. U.S.C. 511 AS:

"FEDERAL SERVICE ON ACTIVE DUTY WITH ANY BRANCH OF SERVICE HERETOFORE REFERRED TO OR MENTIONED AS WELL AS TRAINING OR EDUCATION UNDER THE SUPERVISION OF THE UNITED STATES PRELIMINARY TO INDUCTION INTO THE MILITARY SERVICE. THE TERMS "ACTIVE SERVICE" OR "ACTIVE DUTY" SHALL INCLUDE THE PERIOD DURING WHICH A PERSON IN MILITARY SERVICE IS ABSENT FROM DUTY ON ACCOUNT OF SICKNESS, WOUNDS, LEAVE, OR OTHER LAWFUL CAUSE.'

IT DOES NOT APPEAR THAT THE ABOVE DEFINITION INCLUDES PERIODS WHEN A MEMBER WAS ABSENT WITHOUT LEAVE OR IN CONFINEMENT AWAITING COURT MARTIAL AFTER RETURN TO MILITARY CONTROL FROM AN EXTENDED PERIOD OF ABSENCE WITHOUT LEAVE. ACCORDINGLY, SINCE YOU HAD NO MILITARY SERVICE WITHIN THE MEANING OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT AFTER AUGUST 8, 1952, THAT ACT FURNISHES NO BASIS FOR EXTENSION OF THE 10-YEAR PERIOD WITHIN WHICH YOUR CLAIM SHOULD HAVE BEEN FILED. IT WILL BE NOTED, HOWEVER, THAT EVEN IF THE PERIOD OF CONFINEMENT AFTER RETURN TO MILITARY CONTROL, OCTOBER 27, 1961, TO MAY 18, 1962, WERE A PERIOD OF "MILITARY SERVICE" WITHIN THE MEANING OF THE RELIEF ACT AND THUS EXCLUDED IN DETERMINING THE EXPIRATION OF THE 10-YEAR PERIOD, THE 10 YEARS WOULD HAVE EXPIRED ON FEBRUARY 28, 1963. THE FIRST CLAIM RECEIVED FROM YOU FOR ACTIVE DUTY PAY FOR PERIODS IN 1951 AND 1952 WAS YOUR LETTER OF JANUARY 1, 1964, WHICH WAS RECEIVED HERE ON FEBRUARY 13, 1964.

SINCE YOUR CLAIM WAS NOT RECEIVED WITHIN THE 10-YEAR PERIOD SPECIFIED BY LAW, CONSIDERATION OF SUCH CLAIM IS NOW BARRED. REGARDLESS OF WHETHER OR NOT YOU RECEIVED ALL THE PAY WHICH HAD ACCRUED TO YOU PRIOR TO THE TIME YOU LAST ABSENTED YOURSELF FROM MILITARY CONTROL, AUGUST 9, 1952, THE FACT THAT YOU WAITED UNTIL JANUARY 1964, TO FILE YOUR CLAIM PRECLUDES FAVORABLE CONSIDERATION THEREOF. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.