B-168854, FEB. 16, 1970

B-168854: Feb 16, 1970

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VDA DE TALAUE: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 14. WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY. OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED OCTOBER 28. 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 FEBRUARY 14. THAT OUR OFFICE IS NEITHER AUTHORIZED TO MAKE ANY EXCEPTION TO THE SPECIFIC PROVISIONS OF THAT ACT NOR TO GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. YOU WERE FURTHER INFORMED 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 HENCE THAT YOU WOULD NOT HAVE BEEN ENTITLED TO SUCH PAY EVEN IF YOUR CLAIM HAD BEEN TIMELY FILED.

B-168854, FEB. 16, 1970

MILITARY--MUSTERING-OUT PAY--WORLD WAR II DECISION SUSTAINING ACTION OF CLAIMS DIVISION IN DISALLOWING CLAIM, FOR MUSTERING-OUT PAY ON BEHALF OF CLAIMANT'S LATE HUSBAND FOR MILITARY SERVICE IN WORLD WAR II.

TO MRS. SERAPIA C. VDA DE TALAUE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 14, 1969, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $3,000 ON BEHALF OF YOUR LATE HUSBAND, BARTOLOME G. TALAUE, INCIDENT TO MILITARY SERVICE PERFORMED BY HIM DURING WORLD WAR II.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED OCTOBER 28, 1968, AND FEBRUARY 14, 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 ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM ACCRUES. YOU WERE ALSO ADVISED IN THE LETTER OF FEBRUARY 14, 1969, THAT OUR OFFICE IS NEITHER AUTHORIZED TO MAKE ANY EXCEPTION TO THE SPECIFIC PROVISIONS OF THAT ACT NOR TO GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. YOU WERE FURTHER INFORMED 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 HENCE THAT YOU WOULD NOT HAVE BEEN ENTITLED TO SUCH PAY EVEN IF YOUR CLAIM HAD BEEN TIMELY FILED.

SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 48 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 DURING WORLD WAR II WHO "WERE DISCHARGED OR RELIEVED FROM ACTIVE SERVICE," WERE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT UNDER THAT ACT. YOUR HUSBAND WAS NEITHER DISCHARGED NOR RELIEVED FROM ACTIVE DUTY AND THE TERMINATION OF HIS MILITARY SERVICE BY DEATH IN 1945 OCCURRED UNDER CIRCUMSTANCES WHICH DID NOT GIVE RISE TO A RIGHT TO MUSTERING-OUT PAY.

CONCERNING YOUR REFERENCE TO THE "PROVISION OF ACT NO. 263 OF THE 88TH CONGRESS, DATED 9 JANUARY 1963M APPROVED SEPTEMBER 30, 1965," YOU ARE ADVISED THAT WE CANNOT IDENTIFY THE LAW TO WHICH YOU REFER. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED ON JANUARY 31, 1964), NOR ANY LAW ENACTED ON SEPTEMBER 30, 1965, RELATES IN ANY WAY TO MUSTERING-OUT PAY. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9, 1963.

THERE BEING NO AUTHORITY FOR THE PAYMENT OF MUSTERING-OUT PAY UNDER THE CIRCUMSTANCES HERE INVOLVED, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.