B-168864, FEB. 27, 1970

B-168864: Feb 27, 1970

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WHICH BAR CONSIDERATION BY THIS OFFICE OF ANY CLAIM WHICH IS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THAT ACT. YOU WERE ADVISED ALSO THAT WE ARE WITHOUT AUTHORITY TO WAIVE ANY PROVISION OF THAT ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION THERE IMPOSED. THE RECORD SHOWS THAT YOU WERE SEPARATED FROM YOUR CIVILIAN POSITION FOR INEFFICIENCY EFFECTIVE OCTOBER 7. IT APPEARS THAT THE DEPARTMENT OF THE ARMY LATER DETERMINED THAT THE GROUND OF REMOVAL WAS NOT JUSTIFIED AND DIRECTED THAT YOU BE RESTORED TO DUTY EFFECTIVE AUGUST 21. RETROACTIVE SALARY PAYMENT WAS MADE TO YOU FOR THE PERIOD OCTOBER 7. UNTIL YOU WERE RESTORED TO DUTY ON AUGUST 21. IT APPEARING THAT YOUR CLAIM WAS RECEIVED IN THIS OFFICE LESS THAN 10 YEARS AFTER THE DEPARTMENT OF THE ARMY ACTED ON YOUR APPEAL.

B-168864, FEB. 27, 1970

MILITARY--MUSTERING-OUT PAY--BACK PAY DECISION TO CLAIMANT SUSTAINING SETTLEMENT DISALLOWING CLAIMS FOR BACK COMPENSATION AND MUSTERING-OUT PAY. SINCE MEMBER BECAME ENTITLED TO RETIREMENT PAY NO RIGHT TO MUSTERING-OUT PAY ACCRUED INCIDENT TO RELEASE.

TO MR. BEN F. FERGUSON:

THIS REFERS TO YOUR LETTER OF DECEMBER 11, 1969, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENTS OF JUNE 24, 1966, WHICH DISALLOWED YOUR CLAIM FOR $300 MUSTERING-OUT PAY, AND OF DECEMBER 20, 1966, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY FOR THE PERIOD FEBRUARY 1, 1956, TO OCTOBER 8, 1956.

THE SETTLEMENT LETTERS ADVISED YOU OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH BAR CONSIDERATION BY THIS OFFICE OF ANY CLAIM WHICH IS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THAT ACT. YOU WERE ADVISED ALSO THAT WE ARE WITHOUT AUTHORITY TO WAIVE ANY PROVISION OF THAT ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION THERE IMPOSED.

WITH REFERENCE TO YOUR CLAIM FOR BACK COMPENSATION, THE RECORD SHOWS THAT YOU WERE SEPARATED FROM YOUR CIVILIAN POSITION FOR INEFFICIENCY EFFECTIVE OCTOBER 7, 1956, FEBRUARY 1, 1956, BEING THE LAST DAY YOU ACTUALLY PERFORMED DUTY. IT APPEARS THAT THE DEPARTMENT OF THE ARMY LATER DETERMINED THAT THE GROUND OF REMOVAL WAS NOT JUSTIFIED AND DIRECTED THAT YOU BE RESTORED TO DUTY EFFECTIVE AUGUST 21, 1957. RETROACTIVE SALARY PAYMENT WAS MADE TO YOU FOR THE PERIOD OCTOBER 7, 1956, TO AUGUST 20, 1957, UNDER SECTION 6 OF THE ACT OF AUGUST 12, 1912, 37 STAT. 555, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354.

SINCE YOU PERFORMED NO DUTY IN YOUR CIVILIAN POSITION FROM FEBRUARY 2, 1956, UNTIL YOU WERE RESTORED TO DUTY ON AUGUST 21, 1957, YOU EARNED NO PAY FOR THE INTERVENING PERIOD AND NO RIGHT TO PAY FOR THAT PERIOD ACCRUED TO YOU UNTIL THE DEPARTMENT OF THE ARMY ACTED FAVORABLY ON YOUR APPEAL FROM THE SEPARATION PROCEEDINGS. IT APPEARING THAT YOUR CLAIM WAS RECEIVED IN THIS OFFICE LESS THAN 10 YEARS AFTER THE DEPARTMENT OF THE ARMY ACTED ON YOUR APPEAL, IT IS CLEAR THAT THE ACT OF OCTOBER 9, 1940, IS NOT FOR APPLICATION IN CONSIDERING YOUR CLAIM FOR SALARY FOR THE PERIOD FEBRUARY 2, 1956, TO OCTOBER 6, 1956.

SECTION 6 (B) OF THE 1912 ACT, AS AMENDED, PROVIDES THAT THERE MUST BE DEDUCTED FROM THE COMPENSATION PAYABLE TO A PERSON UNDER THAT SECTION, FOR THE PERIOD HE WAS REMOVED OR SUSPENDED, "ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD." FURTHER CONSIDERATION OF YOUR CLAIM WILL BE HELD INABEYANCE PENDING RECEIPT OF A STATEMENT FROM YOU CERTIFYING TO THE AMOUNTS EARNED BY YOU FROM OTHER EMPLOYMENT DURING THE PERIOD FEBRUARY 2 TO OCTOBER 6, 1956.

CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY, IT IS NOTED THAT YOU WERE RETIRED FOR DISABILITY ON SEPTEMBER 21, 1944. SECTION 1 (B) (2) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, PROVIDED THAT NO MUSTERING- OUT PAY SHOULD BE PAID TO ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF HIS DISCHARGE OR RELIEF FROM ACTIVE DUTY "IS TRANSFERRED * * * TO THE RETIRED LIST WITH RETIREMENT PAY OR TO A STATUS IN WHICH HE RECEIVES RETIREMENT PAY." SINCE YOU BECAME ENTITLED TO RETIREMENT PAY INCIDENT TO YOUR RETIREMENT IN 1944, NO RIGHT TO MUSTERING-OUT PAY ACCRUED TO YOU INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AT THAT TIME.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR MUSTERING-OUT PAY IS SUSTAINED.