B-168131, NOV. 13, 1969

B-168131, NOV. 13, 1969

GRATUITIES--MUSTERING-OUT PAY--TIME FOR FILING CLAIMS FORMER MEMBER DISCHARGED IN 1943, WHO WAS INDUCTED IN 1944, DISCHARGED OVERSEAS IN JUNE 1945 TO ENLIST NEXT DAY, AND LAST DISCHARGED IN 1946, PRESUMABLY WAS FOUND NOT ENTITLED TO MUSTERING-OUT PAY INCIDENT TO 1946 DISCHARGE BECAUSE IT SEEMS LIKELY CLAIMANT WAS PAID INCIDENT TO 1945 DISCHARGE, WHICH OCCURRED SUBSEQUENT TO LEGISLATION AMENDING MUSTERING-OUT PAYMENT ACT OF 1944, SO AS TO AUTHORIZE PAYMENT IF DISCHARGE WERE FOR PURPOSES OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT, AS WELL AS FOR SEPARATION. BUT EVEN HAD PAYMENT NOT BEEN MADE, CLAIM IS BARRED BECAUSE NOT PRESENTED WITHIN 10 YEARS FROM DATE IT ACCRUED -- NOV. 23, 1946 -- AT THE LATEST (ACT OF OCT. 9, 1940).

TO MR. DWIGHT E. FRAME, 124884:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1969, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY DURING WORLD WAR II.

YOUR CLAIM FOR MUSTERING-OUT PAY WAS THE SUBJECT OF LETTERS DATED APRIL 26, 1968, JUNE 25, 1968, AND SEPTEMBER 22, 1969, TO YOU FROM OUR CLAIMS DIVISION. THAT DIVISION ALSO ADDRESSED LETTERS DATED MAY 24, 1968, TO MR. DONALD R. CRAIGO, A.C.S.W., DIRECTOR, SOCIAL SERVICE DEPARTMENT, CHILLICOTHE CORRECTIONAL INSTITUTE, CHILLICOTHE, OHIO 45601, AND OCTOBER 11, 1968, TO YOUR ATTORNEY, MR. RICHARD G. WARD, ROOM 203, CITIZENS NATIONAL BANK BUILDING, CHILLICOTHE, OHIO 45601, CONCERNING YOUR CLAIM.

THE RECORDS YOU SUBMITTED SHOW THAT YOU WERE HONORABLY DISCHARGED FROM THE ARMY ON MAY 12, 1943, AFTER ONE MONTH OF SERVICE. YOU WERE INDUCTED INTO THE ARMY ON OCTOBER 23, 1944, AND HONORABLY DISCHARGED OVERSEAS ON NOVEMBER 23, 1945, IN ORDER TO ENLIST IN THE REGULAR ARMY THE FOLLOWING DAY, AND YOU WERE AGAIN DISCHARGED ON NOVEMBER 23, 1946.

THE RIGHT TO MUSTERING-OUT PAY OF MEMBERS OF THE ARMED FORCES WHO WERE DISCHARGED OR RELIEVED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS ON OR AFTER DECEMBER 7, 1941, AND PRIOR TO FEBRUARY 3, 1944, WAS GOVERNED BY THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, 58 STAT. 8, WHICH AUTHORIZED A PAYMENT OF $100 FOR ACTIVE SERVICE OF LESS THAN 60 DAYS. THIS ACT AS AMENDED BY THE ACT OF MAY 19, 1948, 62 STAT. 241, 38 U.S.C. 691C (1946 ED., SUPP. V), CONTAINED A TIME LIMITATION WITHIN WHICH APPLICATIONS FOR SUCH PAYMENTS WERE REQUIRED TO BE MADE AS FOLLOWS:

"ANY MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO SHALL HAVE BEEN DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BEFORE FEBRUARY 3, 1944 SHALL, IF APPLICATION THEREFOR IS MADE NOT LATER THAN FEBRUARY 3, 1950, BE PAID SUCH MUSTERING-OUT PAYMENT BY THE DEPARTMENT OF THE ARMY OR THE NAVY DEPARTMENT, AS THE CASE MAY BE, BEGINNING WITHIN ONE MONTH AFTER APPLICATION HAS BEEN RECEIVED AND APPROVED BY SUCH DEPARTMENT: * * *.'

SINCE THE RECORD DOES NOT SHOW THAT YOU FILED APPLICATION FOR MUSTERING- OUT PAY WITH THE DEPARTMENT OF THE ARMY ON OR BEFORE FEBRUARY 3, 1950, THERE IS NO AUTHORITY TO AUTHORIZE THE PAYMENT OF SUCH PAY TO YOU INCIDENT TO YOUR SERVICE WHICH WAS TERMINATED BY YOUR DISCHARGE FROM THE ARMY ON MAY 12, 1943.

THE PRIMARY PURPOSE OF THE MUSTERING-OUT PAYMENT ACT OF 1944 WAS TO AID MEMBERS OF THE ARMED FORCES IN THEIR READJUSTMENT TO CIVILIAN LIFE UPON THEIR FINAL RELEASE OR DISCHARGE FROM ACTIVE MILITARY SERVICE. SECTION 3 OF THE ACT PROVIDED IN PART:

"THAT NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT UNDER THIS ACT MORE THAN ONCE, AND SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE.'

THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, 59 STAT. 538, AMENDED SECTION 3 OF THE 1944 ACT BY INSERTING BEFORE THE PERIOD AT THE END OF THE ABOVE-QUOTED PROVISION, THE PHRASE "OR, AT THE OPTION OF SUCH MEMBER, FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT.' SINCE THIS AMENDMENT WAS MADE APPLICABLE WITH RESPECT TO ENLISTMENTS, REENLISTMENTS OR APPOINTMENTS IN THE CASE OF THE MILITARY ESTABLISHMENT ON AND AFTER JUNE 1, 1945, IT SEEMS LIKELY THAT YOU WERE PAID MUSTERING-OUT PAY IN THE AMOUNT OF $300 INCIDENT TO YOUR DISCHARGE ON NOVEMBER 23, 1945, FOR THE PURPOSE OF ENLISTING IN THE REGULAR ARMY, PAYMENT OF THAT AMOUNT BEING AUTHORIZED TO PERSONS OTHERWISE QUALIFIED WHO PERFORMED ACTIVE SERVICE FOR 60 DAYS OR MORE INCLUDING SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

PRESUMABLY, IT WAS BECAUSE OF SUCH A PAYMENT THAT A NOTATION WAS PLACED ON YOUR ENLISTED RECORD AND REPORT OF SEPARATION ON NOVEMBER 23, 1946, INDICATING THAT YOU WERE NOT ENTITLED TO MUSTERING-OUT PAY INCIDENT TO THAT DISCHARGE SINCE, AS STATED ABOVE, ONLY ONE PAYMENT OF SUCH PAY WAS AUTHORIZED UNDER THE 1944 ACT. AND, IF SUCH A PAYMENT WAS MADE TO YOU IN 1945, NO FURTHER PAYMENT WAS AUTHORIZED INCIDENT TO YOUR DISCHARGE IN 1943.

IF YOU ARE OF THE OPINION, HOWEVER, THAT YOU DID NOT RECEIVE MUSTERING- OUT PAY INCIDENT TO YOUR ARMY SERVICE, YOUR ATTENTION IS INVITED TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WHICH PROVIDES IN 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 * * *.'

CLAIMS FOR MUSTERING-OUT PAY ARE SUBJECT TO THE ABOVE-QUOTED PROVISION OF LAW WHICH REQUIRES THAT EVERY CLAIM BE RECEIVED IN THIS OFFICE BEFORE THE 10-YEAR PERIOD HAS ELAPSED IN ORDER FOR SUCH CLAIM TO BE RECOGNIZED AND CONSIDERED ON ITS MERITS. THIS OFFICE MAY NEITHER WAIVE ANY OF THE PROVISIONS OF THAT ACT, NOR GRANT ANY EXTENSION OF THE TIME LIMITATION IMPOSED THEREBY.

ANY CLAIM YOU HAD TO MUSTERING-OUT PAY ACCRUED NOT LATER THAN THE DATE OF YOUR DISCHARGE ON NOVEMBER 23, 1946. THEREFORE, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM WITHIN 10 YEARS OF THAT DATE, THAT IS, BEFORE NOVEMBER 24, 1956, IN ORDER TO CONSIDER IT. OUR RECORDS SHOW THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED IN THIS OFFICE ON MARCH 21, 1968.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY LAW, THERE IS NO FURTHER ACTION OUR OFFICE MAY TAKE IN THE MATTER.

YOUR DISCHARGE FROM THE ARMY AND OTHER PAPERS YOU SUBMITTED TO OUR OFFICE WITH YOUR LETTER OF MAY 3, 1969, WERE RETURNED TO YOU BY OUR CLAIMS DIVISION WITH THEIR LETTER OF SEPTEMBER 22, 1969.