B-174994, FEB 18, 1972

B-174994, FEB 18, 1972

MILITARY PERSONNEL - MUSTERING-OUT PAY - ENTITLEMENT DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF CARLTON K. GOULD, JR., FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO HIS DISCHARGE FROM THE ARMY. THE CLAIM IS WITHOUT MERIT, NOTWITHSTANDING THE PROVISIONS OF 31 U.S.C. 71A, WHICH BAR CONSIDERATION OF ALL CLAIMS NOT RECEIVED BY GAO WITHIN 10 FULL YEARS AFTER THE DATE OF ACCRUAL. SUBSECTION 9E OF AR 35 2490 SPECIFICALLY PROVIDES THAT MEMBERS RECEIVING A "BLUE" DISCHARGE ARE NOT DISCHARGED UNDER HONORABLE CONDITIONS AND, THEREFORE, NOT ENTITLED TO MUSTERING-OUT PAY. ACCORDINGLY, THE PRIOR DENIAL OF THIS CLAIM MUST BE AFFIRMED.

TO MR. CARLTON K. GOULD, JR.:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER RECEIVED HERE ON SEPTEMBER 29, 1971, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 1, 1971, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE ARMY OF THE UNITED STATES ON AUGUST 8, 1945.

OUR FILE SHOWS THAT BY LETTER FROM OUR CLAIMS DIVISION DATED DECEMBER 8, 1970, YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM FOR MUSTERING-OUT PAY AS 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 DATE OF ACCRUAL. YOU WERE ALSO ADVISED THAT SUCH LIMITATION PERIOD HAD EXPIRED A NUMBER OF YEARS BEFORE YOUR CLAIM FOR SUCH PAY WAS FIRST RECEIVED IN OUR OFFICE.

IN APRIL 1971 WE RECEIVED A LETTER FROM YOU DATED APRIL 25, 1971, IN WHICH YOU ASSERTED THAT THE CHARACTER OF THE DISCHARGE WHICH YOU RECEIVED HAD BEEN CHANGED AND YOU FURNISHED OUR OFFICE WITH COPIES OF CORRESPONDENCE YOU RECEIVED FROM THE STATE OF ILLINOIS SERVICE RECOGNITION BOARD AND THE WAR DEPARTMENT, OFFICE OF THE ADJUTANT GENERAL, IN SUPPORT OF YOUR CLAIM. IN RESPONSE, OUR CLAIMS DIVISION LETTER DATED JULY 1, 1971, ADVISED YOU THAT THE RECORD BEFORE THIS OFFICE SHOWS THAT YOU WERE DISCHARGED FROM THE ARMY ON AUGUST 8, 1945, UNDER OTHER THAN HONORABLE CONDITIONS AND THAT THERE WAS NOTHING IN THE FILE OR IN THE MATERIAL WHICH YOU SUBMITTED TO SHOW THAT THE TYPE OF DISCHARGE GIVEN YOU WAS EVER CHANGED.

YOU NOW STATE THAT THE DISCHARGE WHICH YOU RECEIVED WAS OF A MEDICAL NATURE AND THAT WE SEEMED TO HAVE IMPLIED THAT SUCH A MEDICAL DISCHARGE WAS CONSIDERED DISHONORABLE. FURTHER, YOU STATE THAT SINCE YOU RECEIVED A WORLD WAR II BONUS FROM THE STATE OF ILLINOIS, THAT FACT SHOULD ESTABLISH YOUR ELIGIBILITY FOR MUSTERING-OUT PAY.

THE PROVISIONS OF LAW GOVERNING A SERVICE MEMBER'S ENTITLEMENT TO WORLD WAR II MUSTERING-OUT PAY WERE CONTAINED IN 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(A) OF THAT ACT PROVIDED IN PERTINENT PART THAT:

"*** EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE IN THE PRESENT WAR, AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS ON OR AFTER DECEMBER 7, 1941, SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT."

ARMY REGULATIONS ISSUED PURSUANT TO THE 1944 ACT AND IN EFFECT ON THE DATE OF YOUR DISCHARGE ARE CONTAINED IN AR 35-2490, DATED JUNE 15, 1944. SUBSECTION 9E OF THOSE REGULATIONS PROVIDE IN PERTINENT PART:

"(1) ENLISTED PERSONNEL RECEIVING *** A 'BLUE' DISCHARGE FROM THE ARMY OF THE UNITED STATES (W.D., A.G.O. FORM NO. 56) *** AT THE TIME OF THEIR DISCHARGE FROM ACTIVE SERVICE ARE NOT DISCHARGED UNDER HONORABLE CONDITIONS AND ARE NOT ENTITLED TO MUSTERING-OUT PAYMENT."

OUR FILE CONTAINS A COPY OF YOUR DISCHARGE CERTIFICATE (WD AGO FORM 53- 56), WHICH SHOWS THAT YOU WERE DISCHARGED FROM THE ARMY OF THE UNITED STATES ON AUGUST 8, 1945, UNDER THE PROVISIONS OF ARMY REGULATION 615-368; THAT YOU WERE NOT ELIGIBLE FOR REENLISTMENT, INDUCTION OR REINDUCTION AND THAT YOU WERE NOT ENTITLED TO MUSTERING OUT PAY.

THE REGULATION UNDER WHICH YOU RECEIVED YOUR DISCHARGE (AR 615-368, MARCH 7, 1945), CONCERNS ITSELF WITH DISCHARGES GIVEN ENLISTED MEN WHO MANIFEST CERTAIN UNDESIRABLE HABITS OR TRAITS OF CHARACTER AND PROVIDES THE PROCEDURES BY WHICH IT IS DETERMINED WHETHER THE ENLISTED MAN CAN BE REHABILITATED OR IS TO BE DISCHARGED. A DISCHARGE ISSUED UNDER THESE PROVISIONS IS NEITHER AN HONORABLE DISCHARGE NOR IS IT A DISHONORABLE DISCHARGE. IT IS CHARACTERIZED AS BEING A DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS AND AS SUCH DOES NOT QUALIFY THE RECIPIENT TO RECEIVE MUSTERING-OUT PAY. AS A CLASS, ONLY THE RECIPIENTS OF HONORABLE DISCHARGE CERTIFICATES ARE ENTITLED TO THIS PAYMENT.

AS TO YOUR RECEIPT OF A WORLD WAR II BONUS FROM THE STATE OF ILLINOIS AS POSSIBLY SERVING AS A BASIS FOR YOUR ENTITLEMENT TO MUSTERING-OUT PAY UNDER THE 1944 ACT, THERE IS NO PROVISION IN FEDERAL LAW REGARDING MUSTERING-OUT PAY THAT RECOGNIZES SUCH BONUS PAYMENT BY A STATE AS IN ANY WAY CONTROLLING THAT ENTITLEMENT. ONLY BY ADMINISTRATIVE ACTION BY THE DEPARTMENT OF THE ARMY CHANGING YOUR DISCHARGE TO AN HONORABLE ONE COULD YOU BECOME ELIGIBLE FOR MUSTERING-OUT PAY. IN THIS REGARD, IT IS OBSERVED THAT YOUR APPLICATION TO THE SECRETARY OF WAR'S DISCHARGE REVIEW BOARD FOR SUCH A CHANGE WAS DENIED IN 1946.

ACCORDINGLY, EVEN IF THE BARRING ACT WAS NOT APPLICABLE IN YOUR CASE, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE ACTION TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.