B-160665, FEB. 3, 1967

B-160665, FEB. 3, 1967

TO MR. JAMES H. HOLDER:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 20, 1966, AND JANUARY 26, 1967, CONCERNING YOUR CLAIM FOR $345 BELIEVED TO BE DUE INCIDENT TO YOUR DISCHARGE FROM THE ARMY IN 1941. SINCE YOUR CLAIM FOR THE SAME AMOUNT AS "TERMINAL LEAVE PAY" WAS DISALLOWED BY SETTLEMENTS OF OUR CLAIMS DIVISION DATED APRIL 8 AND MAY 13, 1966, YOUR LETTERS WILL BE VIEWED AS A REQUEST FOR REVIEW OF THE ACTION SO TAKEN.

WHILE YOU NOW STATE THAT YOUR CLAIM INVOLVES "MUSTERING OUT PAY," YOUR ATTENTION IS INVITED TO THE FACT THAT UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 10, AS AMENDED, 38 U.S.C. 691 (1952 ED.), MUSTERING-OUT PAYMENTS WERE LIMITED TO "EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE IN THE PRESENT WAR AND WHO IS DISCHARGED * * * ON OR AFTER DECEMBER 7, 1941.' IN VIEW OF THE FACT THAT YOU WERE DISCHARGED ON OCTOBER 27, 1941, NO RIGHT TO MUSTERING-OUT PAY ACCRUED TO YOU.

SINCE YOU STATE THAT YOU ARE ENTITLED TO THE SUM OF $345 AND THE MAXIMUM AMOUNT PAYABLE UNDER THE 1944 ACT WAS $300, IT IS ASSUMED THAT YOUR CLAIM RELATES TO THE TERMINAL LEAVE PAY MENTIONED BY YOU IN EARLIER CORRESPONDENCE.

UNDER THE ARMED FORCES LEAVE ACT OF 1946, CH. 931, 60 STAT. 964, AS AMENDED, 37 U.S.C. 31A (1952 ED.), LEAVE TO WHICH FORMER ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO AUGUST 9, 1946, WERE ENTITLED UNDER THAT ACT WAS PAYABLE (SEE SECTION 5, AS AMENDED), ONLY IN THE EVENT ,APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN JUNE 30, 1951.' THE TERMINAL LEAVE PAY TO WHICH YOU BELIEVE YOU ARE ENTITLED INVOLVED A CLAIM FOR ACCRUED LEAVE UNDER THE 1946 ACT AND UNUSED LEAVE WAS CREDITABLE TO YOU AS OF THE TIME OF YOUR DISCHARGE, PAY FOR SUCH ACCRUED LEAVE WOULD HAVE BEEN PAYABLE UPON THE RECEIPT FROM YOU OF A TIMELY CLAIM AFTER ENACTMENT OF THE 1946 ACT. PRESUMABLY, YOU SUBMITTED A CLAIM SINCE YOU STATE THAT THE NAVY DEPARTMENT ADVISED YOU THAT A CHECK IN THE AMOUNT OF $345 COVERING LEAVE PAY WAS SENT TO YOU IN NOVEMBER 1946. WHILE YOU DENY RECEIVING SUCH CHECK, IT APPEARS THAT IT WAS PAID IN DUE COURSE SINCE YOU STATE THAT THE TREASURY DEPARTMENT HAS ADVISED YOU THAT THE "STATUTE OF LIMITATIONS HAD RUN OUT.' THE STATUTE INVOLVED IS SECTION 2 OF THE ACT OF JUNE 22, 1926, CH. 650, 44 STAT. 761, AS AMENDED, 31 U.S.C. 122, WHICH PROVIDES THAT ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT OR WARRANTS APPEARING TO HAVE BEEN PAID "SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, CHECKS, WARRANT OR WARRANTS INVOLVED.'

WE HAVE NO RECORD OF A CLAIM ON ACCOUNT OF THE INVOLVED CHECK HAVING BEEN RECEIVED FROM YOU IN THIS OFFICE PRIOR TO MARCH 28, 1965. THAT CLAIM WAS NOT PRESENTED WITHIN THE PERIOD SPECIFIED IN THE ABOVE STATUTE AND YOUR LETTERS INDICATE THAT TIMELY INQUIRY CONCERNING THIS MATTER WAS NOT MADE TO THE TREASURER OF THE UNITED STATES. HENCE, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. THE FACT THAT YOU WERE NOT AWARE OF THE ISSUANCE OF SUCH CHECK DOES NOT AFFECT YOUR RIGHTS UNDER THE 1926 ACT IN ANY WAY, SINCE THE LAW CONTAINS NO EXCEPTION APPLICABLE TO SUCH A SITUATION.

IN YOUR LETTER OF DECEMBER 20, 1966, YOU ALSO REFER TO AN ARTICLE IN THE "NAVY TIMES" INVOLVING AN ARMY SERGEANT WHO IS NOW COLLECTING "$5,874 FOR PAY DUE HIM UNDER THE RETIREMENT ACT.' YOU FURTHER STATE THAT THIS ACTION OCCURRED OVER 12 YEARS AGO. WE ARE NOT CERTAIN AS TO THE PERSON YOU HAVE IN MIND. POSSIBLY THE CASE TO WHICH YOU REFER IS THAT OF MASTER SERGEANT CARL H. BUCK, U.S.M.C., WHOSE NAME WAS CLEARED 14 YEARS AFTER HIS WRONGFUL COURT-MARTIAL CONVICTION FOR LARCENY IN 1952. THIS CASE INVOLVED A MATTER OF MISTAKEN IDENTITY. IN 1966 THE SECRETARY OF THE NAVY, VESTED WITH THE AUTHORITY (UNDER 10 U.S.C. 1552) TO CORRECT ANY MILITARY RECORD WHEN HE CONSIDERS IT NECESSARY "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE," CORRECTED SERGEANT BUCK'S RECORD TO SHOW, AMONG OTHER THINGS, THAT HE WAS NOT DISCHARGED IN 1955 BUT WAS RETAINED ON ACTIVE DUTY UNTIL NOVEMBER 30, 1962, AND THEN WAS TRANSFERRED TO THE RETIRED LIST IN THE GRADE OF CHIEF WARRANT OFFICER. THE ADDITIONAL PAY AND ALLOWANCES PAID TO HIM FOR THE PERIOD COMMENCING OCTOBER 31, 1952, WERE AUTHORIZED ON THE BASIS OF THE CORRECTION ACTION TAKEN IN 1966 AND AS A CONSEQUENCE THE STATUTE OF LIMITATIONS HAD NO APPLICATION IN HIS CASE. THE ACTION THERE TAKEN HAS NO BEARING ON YOUR RIGHTS IN THE PREMISES.