B-157867, DEC. 14, 1965, 45 COMP. GEN. 335

B-157867: Dec 14, 1965

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HOLDING RESERVISTS SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER (WITHOUT COMPONENT) STATUS ARE ENTITLED TO MUSTERING OUT PAY INCIDENT TO AN APPOINTMENT IN A REGULAR COMPONENT. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5. WHEN UNDER APPLICABLE REGULATIONS YOU WERE HONORABLY DISCHARGED IN ORDER TO ENLIST IN THE ARMY THE FOLLOWING DAY. YOU WERE HONORABLY DISCHARGED FROM THE ARMY IN ORDER TO ACCEPT AN APPOINTMENT AS A SECOND LIEUTENANT IN THE ARMY RESERVE AND SINCE THAT DATE YOU HAVE SERVED CONTINUOUSLY ON ACTIVE DUTY IN THAT COMPONENT AND IN THE ARMY OF THE UNITED STATES. YOU WERE NEVER PAID MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE ON JANUARY 9. WAS FORWARDED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER.

B-157867, DEC. 14, 1965, 45 COMP. GEN. 335

GRATUITIES - MUSTERING-OUT PAY - TIME FOR FILING CLAIMS THE CLAIM OF AN OFFICER OF THE UNIFORMED SERVICES HONORABLY DISCHARGED AS AN ENLISTED MAN FROM THE AIR FORCE TO ENLIST IN THE REGULAR ARMY PRIOR TO JULY 16, 1952, WHO FAILED TO FILE AN APPLICATION FOR MUSTERING-OUT PAY PRIOR TO THE PRESCRIBED DEADLINE, MIDNIGHT JULY 16, 1959, MAY NOT BE CONSIDERED EITHER ON THE BASIS OF PUBLIC LAW 89 50, APPROVED JUNE 24, 1965 (38 U.S.C. 2104), AUTHORIZING OFFICERS INTEGRATED INTO A REGULAR COMPONENT OF AN ARMED FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, WHO FAILED TO MAKE APPLICATION FOR MUSTERING-OUT PAY BEFORE THE STATUTORY DEADLINE TO FILE FOR SUCH PAY BEFORE JANUARY 31, 1966, OR ON THE BASIS OF DOWLING V. UNITED STATES, 156 CT.CL. 282 (1962), HOLDING RESERVISTS SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER (WITHOUT COMPONENT) STATUS ARE ENTITLED TO MUSTERING OUT PAY INCIDENT TO AN APPOINTMENT IN A REGULAR COMPONENT, AND THE OFFICER HAVING BEEN DISCHARGED FROM THE AIR FORCE IN AN ENLISTED STATUS ON JANUARY 9, 1952, NEITHER PUBLIC LAW 89-50 NOR THE DOWLING CASE, APPLICABLE TO OFFICERS, OVERCOMES HIS FAILURE TO TIMELY CLAIM MUSTERING OUT PAY.

TO MAJOR ROBERT SANABRIA, DECEMBER 14, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1965, IN EFFECT REQUESTING A REVIEW OF THE ACTION TAKEN ON YOUR CLAIM FOR MUSTERING-OUT PAYMENT INCIDENT TO YOUR HONORABLE DISCHARGE FROM THE AIR FORCE ON JANUARY 9, 1952, TO ENLIST IN THE REGULAR ARMY.

OUR RECORD SHOWS THAT ON JANUARY 3, 1951, YOU ENLISTED IN THE AIR FORCE AND SERVED UNTIL JANUARY 9, 1952, WHEN UNDER APPLICABLE REGULATIONS YOU WERE HONORABLY DISCHARGED IN ORDER TO ENLIST IN THE ARMY THE FOLLOWING DAY. ON MARCH 19, 1953, YOU WERE HONORABLY DISCHARGED FROM THE ARMY IN ORDER TO ACCEPT AN APPOINTMENT AS A SECOND LIEUTENANT IN THE ARMY RESERVE AND SINCE THAT DATE YOU HAVE SERVED CONTINUOUSLY ON ACTIVE DUTY IN THAT COMPONENT AND IN THE ARMY OF THE UNITED STATES. APPARENTLY, YOU WERE NEVER PAID MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE ON JANUARY 9, 1952, AND CONSEQUENTLY YOU PRESENTED A CLAIM THEREFORE WITH THE ARMY AND LATER WITH THE AIR FORCE. AFTER DENIAL OF YOUR CLAIMS, YOUR APPEAL, CONTAINED IN A LETTER DATED JUNE 2, 1964, WAS FORWARDED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, TO OUR CLAIMS DIVISION FOR DISPOSITION. BY SETTLEMENT DATED SEPTEMBER 25, 1964, THE CLAIMS DIVISION DISALLOWED THE CLAIM FOR THE REASON THAT YOUR APPLICATION FOR MUSTERING-OUT PAY WAS NOT FILED WITH THE ADMINISTRATIVE OFFICE PRIOR TO MIDNIGHT, JULY 16, 1959, THE DEADLINE DATE, AS SET FORTH IN THE LAW AND GOVERNING REGULATIONS, FOR APPLICATIONS FOR MUSTERING-OUT PAY FOR SERVICE PRIOR TO JULY 16, 1952.

BY LETTER DATED SEPTEMBER 2, 1965, YOU REQUESTED OUR CLAIMS DIVISION TO RECONSIDER YOUR CLAIM FOR MUSTERING-OUT PAY ON THE BASIS OF PUBLIC LAW 89- 50, APPROVED JUNE 24, 1965. IN RESPONSE, YOU WERE ADVISED ON SEPTEMBER 22, 1965, THAT PUBLIC LAW 89-50 IS NOT APPLICABLE IN YOUR CASE SINCE THAT LAW EXTENDS THE TIME FOR THE FILING OF CLAIMS FOR MUSTERING-OUT PAY BY CERTAIN CLASSES OF OFFICERS WHEREAS YOU WERE HONORABLY DISCHARGED AS AN ENLISTED MEMBER.

YOU SAY IN YOUR LETTER OF OCTOBER 5, 1965, THAT IT IS OBVIOUS, EXCEPT FOR THE TIME LIMITATION, THAT YOUR CLAIM FOR MUSTERING-OUT PAY IS VALID AND THAT IT IS CLEAR THAT THE INTENT OF THE CONGRESS IN PASSING PUBLIC LAW 89- 50 WAS TO ENABLE THOSE MEN WHO WERE OTHERWISE QUALIFIED TO RECEIVE THE PAYMENTS DUE THEM.

PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, 38 U.S.C. 2104, ON WHICH YOU BASE YOUR CLAIM, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 2. SECTION 2104 OF TITLE 38, U.S.C. IS AMENDED BY INSERTING THE FOLLOWING NEW SENTENCE AFTER THE FIRST SENTENCE THEREOF: "NOTWITHSTANDING THE FIRST SENTENCE OF THIS SECTION OR SECTION 71A OF TITLE 31, A MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO WAS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE AS AN OFFICER OF AN ARMED FORCE UNDER HONORABLE CONDITIONS BEFORE JULY 16, 1952, FOR THE PURPOSE OF APPOINTMENT AS A WARRANT OFFICER OR COMMISSIONED OFFICER IN A REGULAR COMPONENT OF AN ARMED FORCE, SHALL, IF APPLICATION IS MADE BEFORE JANUARY 31, 1966, BE PAID MUSTERING-OUT PAYMENT BY THE SECRETARY CONCERNED BEGINNING WITHIN ONE MONTH AFTER APPLICATION HAS BEEN RECEIVED AND APPROVED.'

ARMY REGULATIONS IMPLEMENTING THE ABOVE LAW ARE CONTAINED IN DEPARTMENT OF THE ARMY CIRCULAR NO. 35-6, DATED JULY 19, 1965, AND EXPRESSLY STATES IN SECTION 2 THEREOF THAT THE PERSONNEL COVERED BY PUBLIC LAW 89-50 ARE OFFICERS WHO WERE SERVING ON ACTIVE DUTY BETWEEN JUNE 27, 1950 AND JULY 16, 1952, AS SET FORTH BELOW:

2. THE PERSONNEL COVERED BY P.L. 89-50 ARE OFFICERS WHO WERE SERVING ON ACTIVE DUTY IN A PAY GRADE BELOW MAJOR AT THE TIME OF INTEGRATION IN THE REGULAR ARMY BETWEEN THE DATES OF 27 JUNE 1950 AND 16 JULY 1952. THESE OFFICERS' ENTITLEMENT TO PAYMENT WAS NOT CONCEDED UNTIL 1962, A DATE SUBSEQUENT TO THE TIME LIMITATION FOR FILING CLAIMS. P.L. 80-50 NOW EXTENDS THE TIME LIMIT FOR THIS GROUP OF OFFICERS TO FILE CLAIMS THROUGH 30 JANUARY 1966.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-50 CLEARLY SHOWS THAT IT WAS ENACTED TO BENEFIT ONLY A RELATIVELY SMALL NUMBER OF OFFICERS WHO BECAME MEMBERS OF REGULAR COMPONENTS AFTER HAVING FIRST BEEN MEMBERS OF THE ARMY OR THE AIR FORCE WITHOUT SPECIFICATION OF COMPONENT AND HAD THEIR ENTITLEMENT TO MUSTERING-OUT PAY ESTABLISHED ONLY AS A RESULT OF A COURT OF CLAIMS DECISION IN 1962. PAYMENT OF MUSTERING-OUT PAY TO SUCH OFFICERS WAS DENIED UNDER THE HOLDING IN OUR DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, IN ANSWER TO QUESTION 1A. SUBSEQUENTLY, THE UNITED STATES COURT OF CLAIMS HELD IN THE CASE OF DOWLING V. UNITED STATES, 156 CT.CL. 282 (1962), THAT UNDER THE APPLICABLE LAW RESERVISTS SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER (WITHOUT COMPONENT) STATUS ARE ENTITLED TO MUSTERING- OUT PAY INCIDENT TO AN APPOINTMENT IN A REGULAR COMPONENT. IN OUR DECISION OF JUNE 21, 1962, 41 COMP. GEN. 812, WE SAID THAT WE WOULD FOLLOW THE RULING IN THE DOWLING CASE. IT WILL BE SEEN FROM THE FOREGOING THAT PUBLIC LAW 89-50 IS APPLICABLE ONLY TO THE RELATIVELY SMALL NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING THE MUSTERING-OUT PAY BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE DATE OF JULY 17, 1959.

INASMUCH AS YOU WERE DISCHARGED FROM THE AIR FORCE ON JANUARY 9, 1952, AS AN ENLISTED MEMBER, NEITHER THE RULING IN THE DOWLING CASE NOR PUBLIC LAW 89-50 IS FOR APPLICATION IN YOUR CASE. THEREFORE, AND SINCE IT IS ESTABLISHED BY THE RECORD THAT YOU DID NOT APPLY FOR THE MUSTERING-OUT PAY PRIOR TO JULY 17, 1959, THERE IS NO LEGAL AUTHORITY FOR PAYMENT OF SUCH PAY TO YOU.

CONCERNING YOUR STATEMENT AS TO WHOM OR WHICH AGENCY OF THE GOVERNMENT YOU MAY APPLY "TO OVERRIDE" OUR DECISION, YOU ARE ADVISED THAT THE DECISIONS OF THE COMPTROLLER GENERAL ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 71, 74. HOWEVER, THE UNITED STATES COURT OF CLAIMS HAS JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF ACTION IS FILED IN THAT COURT WITHIN 6 YEARS FOLLOWING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.