B-168777, FEB. 10, 1970

B-168777: Feb 10, 1970

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PAULA VDA DE CASTRO REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 29. OUR FILE SHOWS THAT HIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MAY 6. IN WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM SINCE THE ACT OF OCTOBER 9. YOU WERE ALSO ADVISED IN THE LETTER OF AUGUST 15. THAT SINCE YOUR HUSBAND WAS SEPARATED FROM MILITARY SERVICE BY DEATH. NO ENTITLEMENT TO MUSTERING- OUT PAY COULD HAVE ACCRUED AND THAT YOU WOULD NOT HAVE BEEN ENTITLED TO PAYMENT EVEN IF YOUR CLAIM HAD BEEN TIMELY FILED. PROVIDED THAT ONLY THOSE MEMBERS OF THE ARMED FORCES WHO ENGAGED IN ACTIVE SERVICE IN THE "PRESENT WAR" AND WHO "WERE DISCHARGED OR RELIEVED FROM ACTIVE SERVICE.

B-168777, FEB. 10, 1970

MILITARY--MUSTERING-OUT PAY--WORLD WAR II SERVICE DECISION SUSTAINING DISALLOWANCE OF CLAIM FOR MUSTERING-OUT PAY.

TO MRS. PAULA VDA DE CASTRO

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 29, 1969, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE YOUR LATE HUSBAND, CASTOR DE CASTRO, INCIDENT TO MILITARY SERVICE PERFORMED BY HIM DURING WORLD WAR II.

OUR FILE SHOWS THAT HIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MAY 6, 1968 AND AUGUST 15, 1969, IN WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM SINCE THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, BARS CONSIDERATION OF ALL CLAIMS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM ACCRUED. YOU WERE ALSO ADVISED IN THE LETTER OF AUGUST 15, 1969, THAT SINCE YOUR HUSBAND WAS SEPARATED FROM MILITARY SERVICE BY DEATH, RATHER THAN BY DISCHARGE, NO ENTITLEMENT TO MUSTERING- OUT PAY COULD HAVE ACCRUED AND THAT YOU WOULD NOT HAVE BEEN ENTITLED TO PAYMENT EVEN IF YOUR CLAIM HAD BEEN TIMELY FILED.

SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, 38 U.S.C. 691 ET SEQ. (1946 ED.) PROVIDED THAT ONLY THOSE MEMBERS OF THE ARMED FORCES WHO ENGAGED IN ACTIVE SERVICE IN THE "PRESENT WAR" AND WHO "WERE DISCHARGED OR RELIEVED FROM ACTIVE SERVICE," WERE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENTS UNDER THAT ACT. YOUR HUSBAND WAS NEITHER DISCHARGED NOR RELEASED FROM ACTIVE DUTY AND THE TERMINATION OF HIS MILITARY SERVICE BY DEATH IN 1942 OCCURRED UNDER CIRCUMSTANCES WHICH DID NOT GIVE RISE TO A RIGHT TO MUSTERING-OUT PAY.

THERE BEING NO AUTHORITY FOR THE PAYMENT OF MUSTERING-OUT PAY UNDER THE CIRCUMSTANCES HERE INVOLVED, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.