B-166984, JUN. 5, 1969

B-166984: Jun 5, 1969

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SORENSEN: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 1. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT WAS NOT FILED WITH THE ARMY PRIOR TO FEBRUARY 3. AT THAT TIME THE CIRCUMSTANCES OF YOUR DISCHARGE WERE NOT KNOWN TO THIS OFFICE. IN THAT LETTER IT IS STATED THAT THE RECORDS DISCLOSE THAT YOU WERE DISCHARGED UNDER THE PROVISIONS OF SECTION II. IT IS STATED THAT MEMBERS OF THE ARMY DISCHARGED UNDER THE ABOVE CONDITIONS ARE NOT ENTITLED TO RECEIVE MUSTERING-OUT PAY UNLESS THEY HAD FOREIGN SERVICE. YOU DID NOT HAVE FOREIGN SERVICE. YOU BELIEVE YOU ARE ENTITLED TO PAYMENT OF YOUR CLAIM FOR MUSTERING-OUT PAY. WERE ISSUED UNDER SUCH AUTHORITY CONTAINED IN SECTION 5 OF THE MUSTERING-OUT PAYMENT ACT AND THE WORDING OF SECTION I.

B-166984, JUN. 5, 1969

TO MR. HENRY V. SORENSEN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 1, 1969, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF SETTLEMENT DATED APRIL 21, 1969, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAYMENT OF $200 INCIDENT TO YOUR DISCHARGE FROM THE ARMY ON FEBRUARY 27, 1943.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT WAS NOT FILED WITH THE ARMY PRIOR TO FEBRUARY 3, 1950, AS REQUIRED BY THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8. AT THAT TIME THE CIRCUMSTANCES OF YOUR DISCHARGE WERE NOT KNOWN TO THIS OFFICE.

WITH YOUR PRESENT LETTER YOU ENCLOSED A COPY OF LETTER DATED JANUARY 18, 1950, FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY. IN THAT LETTER IT IS STATED THAT THE RECORDS DISCLOSE THAT YOU WERE DISCHARGED UNDER THE PROVISIONS OF SECTION II, WAR DEPARTMENT CIRCULAR 39, 1943, TO ACCEPT EMPLOYMENT IN ESSENTIAL WAR INDUSTRY. FURTHER, IT IS STATED THAT MEMBERS OF THE ARMY DISCHARGED UNDER THE ABOVE CONDITIONS ARE NOT ENTITLED TO RECEIVE MUSTERING-OUT PAY UNLESS THEY HAD FOREIGN SERVICE. APPARENTLY, YOU DID NOT HAVE FOREIGN SERVICE.

IN YOUR LETTER YOU SAY THAT THE ENCLOSED COPY OF THE LETTER OF JANUARY 18, 1950, FROM THE ARMY, ESTABLISHES THAT YOU DID FILE YOUR CLAIM WITH THE ARMY BEFORE FEBRUARY 3, 1950. THEREFORE, YOU BELIEVE YOU ARE ENTITLED TO PAYMENT OF YOUR CLAIM FOR MUSTERING-OUT PAY.

SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, 58 STAT. 8, EXPRESSLY PROVIDES THAT:

"/B) NO MUSTERING-OUT PAYMENT SHALL BE MADE TO --

"/3) ANY MEMBER OF THE ARMED FORCES FOR ANY ACTIVE SERVICE PERFORMED PRIOR TO THE DATE OF HIS DISCHARGE OR RELIEF FROM ACTIVE SERVICE ON HIS OWN INITIATIVE TO ACCEPT EMPLOYMENT OR, IN THE CASE OF ANY MEMBER SO RELIEVED FROM ACTIVE SERVICE, FOR ANY ACTIVE SERVICE PERFORMED PRIOR TO THE DATE OF HIS DISCHARGE WHILE IN SUCH INACTIVE STATUS, UNLESS HE HAS SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA; " SECTION 5 OF THE ACT PROVIDES:

"/B) THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL MAKE SUCH REGULATIONS NOT INCONSISTENT WITH THIS ACT AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT THE PROVISIONS THEREOF, AND THE DECISIONS OF THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL.'

ARMY REGULATIONS 35-2490, DATED JUNE 15, 1944, WERE ISSUED UNDER SUCH AUTHORITY CONTAINED IN SECTION 5 OF THE MUSTERING-OUT PAYMENT ACT AND THE WORDING OF SECTION I, PARAGRAPH 2C, OF THE REGULATIONS IS IDENTICAL TO SECTION 1 (B) (3) OF THE ACT, QUOTED ABOVE. SECTION II, PARAGRAPH 9N, OF THE REGULATIONS READS:

"N. CERTAIN DISCHARGES UNDER SECTION X, AR 615-360. -- PERSONNEL DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BECAUSE OF THEIR IMPORTANCE TO NATIONAL HEALTH, SAFETY, OR INTEREST, OR BY REASON OF BEING FORMER KEY IN INDUSTRY ARE NOT ENTITLED TO MUSTERING-OUT PAYMENT.'

AS THE EXPRESS PROVISION IN SECTION 5 (B) OF THE ACT MAKING THE DECISIONS OF THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY THEREUNDER FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL NECESSARILY MUST BE VIEWED AS PRECLUDING CONSIDERATION BY THIS OFFICE OF YOUR RIGHT TO RECEIVE THE MUSTERING-OUT PAYMENT, THERE IS NO ACTION WE MAY TAKE IN THE MATTER.

THEREFORE, WHILE THE RECORD NOW SHOWS THAT YOU FILED A CLAIM WITH THE ARMY FOR MUSTERING-OUT PAY PRIOR TO FEBRUARY 3, 1950, IT FURTHER IS SHOWN THAT YOU WERE NOT ELIGIBLE FOR MUSTERING-OUT PAY SINCE YOU WERE DISCHARGED TO ACCEPT EMPLOYMENT IN ESSENTIAL WAR INDUSTRY.

SINCE THERE IS NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF APRIL 21, 1969, IS SUSTAINED.