B-166058, FEB. 26, 1969

B-166058: Feb 26, 1969

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EUCAPOR: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 24. OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MAY 27. IN EACH OF WHICH YOU WERE ADVISED THAT YOUR CLAIM FOR MUSTERING OUT PAY WAS BARRED BY THE ACT OF OCTOBER 9. IS NOT APPLICABLE TO YOUR CLAIM ON THE BASIS THAT THAT ACT REFERS ONLY TO CLAIMS ARISING OUT OF WORLD WAR I SERVICE AND THAT YOUR CLAIM ARISES BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944. 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. IF APPLICATION IS MADE BEFORE JANUARY 31.

B-166058, FEB. 26, 1969

TO MR. GUILLERMO S. EUCAPOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 24, 1968, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE ARMY IN 1946.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MAY 27, 1968, AUGUST 27, 1968, AND OCTOBER 25, 1968, IN EACH OF WHICH YOU WERE ADVISED THAT YOUR CLAIM FOR MUSTERING OUT PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT READS IN PERTINENT PART:

"/1) EVERY CLAIM OR DEMAND * * * 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 * * *.'

IN CONNECTION WITH THE ABOVE-QUOTED ACT, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

YOU NOW CONTEND THAT THE BARRING ACT OF OCTOBER 9, 1940, IS NOT APPLICABLE TO YOUR CLAIM ON THE BASIS THAT THAT ACT REFERS ONLY TO CLAIMS ARISING OUT OF WORLD WAR I SERVICE AND THAT YOUR CLAIM ARISES BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944. YOU ALSO INVITE ATTENTION TO PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, WHICH EXTENDS THE TIME FOR FILING CERTAIN CLAIMS FOR MUSTERING-OUT PAYMENTS UNDER CHAPTER 43 OF TITLE 38 U.S.C.

THE SECTION OF PUBLIC LAW 89-50 TO WHICH YOU REFER PROVIDES IN PERTINENT PART:

"NOTWITHSTANDING THE FIRST SENTENCE OF THIS SECTION (2104 OF TITLE 38, U.S. CODE) 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 * * *.'

PUBLIC LAW 89-50 IS AN AMENDMENT TO CHAPTER 43 OF TITLE 38, U.S. CODE, WHICH PROVIDED FOR MUSTERING-OUT PAYMENTS TO THOSE PERSONS WHO SERVED ON ACTIVE DUTY DURING THE KOREAN CONFLICT. INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE ON FEBRUARY 28, 1946, WHICH WAS PRIOR TO THE KOREAN CONFLICT, NEITHER CHAPTER 43 OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89-50, IS FOR APPLICATION IN YOUR CASE.

ANY MUSTERING-OUT PAY TO WHICH YOU MAY HAVE BEEN ENTITLED ACCRUED TO YOU BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.). CLAIMS UNDER THAT ACT ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WHICH ACT REQUIRES THAT SUCH CLAIMS BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DATE THE CLAIM FIRST ACCRUED. THE RECORD SHOWS THAT YOU WERE DISCHARGED FROM THE SERVICE ON FEBRUARY 28, 1946. SINCE THAT WAS THE DATE YOUR CLAIM FIRST ACCRUED, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM ON OR BEFORE FEBRUARY 28, 1956, IN ORDER TO AVOID THE BAR OF THE ACT. OUR FILE SHOWS THAT YOUR CLAIM CONCERNING MUSTERING-OUT PAY WAS RECEIVED HERE ON MAY 13, 1968, MORE THAN 22 YEARS AFTER THE DATE OF YOUR DISCHARGE.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE 1940 BARRING ACT, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.