B-172191, APR 9, 1971

B-172191: Apr 9, 1971

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BECAUSE DECEASED WAS SEPARATED FROM THE SERVICE BY DEATH RATHER THAN DISCHARGE. VDA DE BERNABE: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30. WHICH WAS FORWARDED TO THIS OFFICE FOR REPLY. 600 WHICH YOU BELIEVE IS DUE INCIDENT TO THE SERVICE OF YOUR DECEASED HUSBAND. YOU WERE ADVISED IN A LETTER FROM OUR CLAIMS DIVISION DATED OCTOBER 7. THAT INASMUCH AS YOUR HUSBAND WAS SEPARATED FROM THE MILITARY SERVICE BY DEATH RATHER THAN BY DISCHARGE. SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944 PROVIDED THAT ONLY THOSE MEMBERS OF THE ARMED FORCES WHO WERE ENGAGED IN ACTIVE SERVICE DURING WORLD WAR II AND WHO WERE "DISCHARGED OR RELIEVED FROM ACTIVE SERVICE" WERE ELIGIBLE TO RECEIVE MUSTERING-OUT PAY UNDER THAT ACT.

B-172191, APR 9, 1971

MUSTERING OUT PAY SUSTAINING PRIOR DECISION WHICH DISALLOWED CLAIM FOR $3,600 MUSTERING OUT PAY BELIEVED DUE INCIDENT TO THE SERVICE OF CLAIMANT'S DECEASED HUSBAND. BECAUSE DECEASED WAS SEPARATED FROM THE SERVICE BY DEATH RATHER THAN DISCHARGE, HE HAD NO ENTITLEMENT TO MUSTERING-OUT PAY UNDER THE MUSTERING- OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. THEREFORE, THE CLAIM MUST BE DISALLOWED.

TO MRS. RITA Q. VDA DE BERNABE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30, 1970, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO THIS OFFICE FOR REPLY. IN THAT LETTER YOU CLAIMED MUSTERING- OUT PAY IN THE AMOUNT OF $3,600 WHICH YOU BELIEVE IS DUE INCIDENT TO THE SERVICE OF YOUR DECEASED HUSBAND, PEDRO S. BERNABE, AS A MEMBER OF THE PHILIPPINE SCOUTS, WHICH SERVICE TERMINATED UPON HIS DEATH ON JUNE 12, 1945.

YOU WERE ADVISED IN A LETTER FROM OUR CLAIMS DIVISION DATED OCTOBER 7, 1969, THAT INASMUCH AS YOUR HUSBAND WAS SEPARATED FROM THE MILITARY SERVICE BY DEATH RATHER THAN BY DISCHARGE, HE HAD NO ENTITLEMENT TO MUSTERING-OUT PAY UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.).

SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944 PROVIDED THAT ONLY THOSE MEMBERS OF THE ARMED FORCES WHO WERE ENGAGED IN ACTIVE SERVICE DURING WORLD WAR II AND WHO WERE "DISCHARGED OR RELIEVED FROM ACTIVE SERVICE" WERE ELIGIBLE TO RECEIVE MUSTERING-OUT PAY UNDER THAT ACT. THE DEATH OF YOUR HUSBAND WHILE ON ACTIVE DUTY WAS NOT A DISCHARGE OR RELIEF FROM ACTIVE SERVICE FOR THE PURPOSES OF THAT ACT AND THUS DID NOT GIVE RISE TO A RIGHT TO MUSTERING-OUT PAY. SUCH PAY COULD BE PAID TO THE HEIRS OF A MEMBER ONLY IF HE DIED AFTER A RIGHT THERETO ACCRUED UPON HIS DISCHARGE FROM THE SERVICE.

CONCERNING YOUR APPARENT BELIEF THAT MUSTERING-OUT PAY IS "AUTHORIZED UNDER THE PROVISIONS OF ACT NO. 263 OF THE 88TH CONGRESS, DATED JANUARY 9, 1963, APPROVED SEPTEMBER 30, 1965," YOU ARE ADVISED THAT NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31, 1964, AND IN NO WAY RELATES TO MUSTERING-OUT PAY), NOR ANY OTHER LAW OF WHICH WE ARE AWARE AUTHORIZES THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.