B-175346, JUN 20, 1972

B-175346: Jun 20, 1972

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CONSIDERATION OF HIS CLAIM IS BARRED BY THE ACT OF OCTOBER 9. IN WHICH YOU HAVE. YOUR CLAIM FOR THE TERMINAL LEAVE PAY AND MUSTERING-OUT PAY WAS FIRST RECEIVED IN THIS OFFICE ON APRIL 9. WHEN YOUR LETTER WRITTEN IN MARCH 1970 WAS RECEIVED IN OUR CLAIMS DIVISION. THAT YOU WERE NOT PLACED ON LEAVE DURING THIS PERIOD AND THAT YOU HAD OVER 56 DAYS OF TERMINAL LEAVE DUE YOU PRIOR TO ENLISTMENT IN THE ARMY ON MARCH 6. YOU ALSO STATED THAT YOU WERE PLACED ON TERMINAL LEAVE BY THE ARMY ON DECEMBER 22. WERE NOT PAID FOR SUCH LEAVE AND THAT WHEN YOU WERE DISCHARGED ON FEBRUARY 17. YOU WERE NOT PAID MUSTERING-OUT PAY. THAT CERTIFICATE SHOWS THAT YOUR PRIOR MILITARY SERVICE WAS DURING THE PERIOD NOVEMBER 15.

B-175346, JUN 20, 1972

MILITARY PERSONNEL - TERMINAL LEAVE AND MUSTERING OUT PAY - ENTITLEMENT BARRING ACT OF 1940 CONCERNING THE CLAIM OF EASTON CALVIN HALL FOR TERMINAL LEAVE PAY AND MUSTERING OUT PAY BELIEVED DUE UPON HIS DISCHARGE FROM THE ARMY IN 1947. NOTHING IN THE RECORD SUPPORTS MR. HALL'S CONTENTION THAT HE FAILED TO RECEIVE MUSTERING OUT PAY OR CREDIT FOR TERMINAL LEAVE. IN ANY EVENT, CONSIDERATION OF HIS CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, 237, WHICH REQUIRES THAT CLAIMS BE FILED WITH GAO WITHIN TEN YEARS AFTER THEY FIRST ACCRUE.

TO MR. EASTON CALVIN HALL:

WE AGAIN REFER TO YOUR LETTERS OF JANUARY 3 AND 10, 1972, IN WHICH YOU HAVE, IN EFFECT, REQUESTED RECONSIDERATION OF YOUR CLAIM FOR TERMINAL LEAVE PAY AND MUSTERING-OUT PAY BELIEVED TO BE DUE YOU ON FEBRUARY 17, 1947, DATE OF YOUR DISCHARGE FROM THE UNITED STATES ARMY.

YOUR CLAIM FOR THE TERMINAL LEAVE PAY AND MUSTERING-OUT PAY WAS FIRST RECEIVED IN THIS OFFICE ON APRIL 9, 1970, WHEN YOUR LETTER WRITTEN IN MARCH 1970 WAS RECEIVED IN OUR CLAIMS DIVISION, HAVING BEEN REFERRED HERE BY THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA. YOU STATED IN A SUBSEQUENT LETTER DATED DECEMBER 13, 1970, THAT YOU HAD SERVED 2 YEARS, 1 MONTH, AND 12 DAYS IN THE NAVY DURING WORLD WAR II, THAT YOU WERE NOT PLACED ON LEAVE DURING THIS PERIOD AND THAT YOU HAD OVER 56 DAYS OF TERMINAL LEAVE DUE YOU PRIOR TO ENLISTMENT IN THE ARMY ON MARCH 6, 1946. YOU ALSO STATED THAT YOU WERE PLACED ON TERMINAL LEAVE BY THE ARMY ON DECEMBER 22, 1946, BUT WERE NOT PAID FOR SUCH LEAVE AND THAT WHEN YOU WERE DISCHARGED ON FEBRUARY 17, 1947, YOU WERE NOT PAID MUSTERING-OUT PAY. ALSO, YOU ENCLOSED A COPY OF THE REVERSE SIDE OF YOUR HONORABLE DISCHARGE CERTIFICATE FROM THE ARMY. THAT CERTIFICATE SHOWS THAT YOUR PRIOR MILITARY SERVICE WAS DURING THE PERIOD NOVEMBER 15, 1943, TO DECEMBER 19, 1945, AND THAT YOU WERE ON TERMINAL LEAVE FROM DECEMBER 20, 1946, TO FEBRUARY 17, 1947, OR A PERIOD OF 60 DAYS.

SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE YOUR CLAIM HAD ACCRUED, THAT IS, THE DATE OF YOUR DISCHARGE (FEBRUARY 17, 1947), THE CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AND IN AN ACCOMPANYING LETTER DATED MARCH 10, 1971, ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, 237, PROVIDES IN PERTINENT PART AS FOLLOWS:

"(1) EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: ***

(2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION."

ON DECEMBER 28, 1971, THE CLAIMS DIVISION, IN RESPONSE TO YOUR FURTHER CORRESPONDENCE IN THIS MATTER, ADVISED YOU THAT YOUR MILITARY PAY RECORDS FOR THE PERIODS OF YOUR SERVICE HAVE BEEN DESTROYED PURSUANT TO LAW AND AGAIN EXPLAINED THAT INASMUCH AS YOUR INITIAL CLAIM WAS NOT RECEIVED HERE WITHIN 10 FULL YEARS FROM THE DATE YOU WERE SEPARATED FROM THE ARMY, IT MAY NOT BE CONSIDERED SINCE IT IS BARRED BY LAW.

IN YOUR LETTER OF JANUARY 3, 1972, YOU SAY YOU HAVE FURNISHED US WITH ALL THE INFORMATION PERTAINING TO YOUR CLAIM AND THAT THE GOVERNMENT OWES YOU A CHECK TO COVER PAYMENT OF YOUR TERMINAL LEAVE AND MUSTERING OUT PAY. YOUR LETTER OF JANUARY 10, 1972, YOU AGAIN MENTION THAT YOU DID NOT TAKE ANY LEAVE DURING YOUR WORLD WAR II SERVICE AND THAT THE ARMY PERMITTED YOU TO TAKE 60 DAYS OF TERMINAL LEAVE WHEN YOU WERE SEPARATED WITHOUT MAKING PAYMENT THEREFOR.

ANY MUSTERING-OUT PAY DUE YOU INCIDENT TO YOUR SERVICE IN WORLD WAR II WOULD HAVE BEEN PAID TO YOU AT THE TIME OF YOUR DISCHARGE FROM THE NAVY. IN THIS REGARD THERE IS NOTHING IN THE RECORD TO SHOW THAT THERE IS AN AMOUNT DUE YOU FROM THE GOVERNMENT REPRESENTING UNPAID MUSTERING OUT PAY. INASMUCH AS YOU SAY YOU WERE HONORABLY DISCHARGED FROM THE NAVY ON DECEMBER 19, 1945, IT MUST BE PRESUMED THAT YOU WERE PAID THE INITIAL INSTALLMENT OF MUSTERING-OUTPAY OF $100 AT THAT TIME, THE SECOND INSTALLMENT OF $100 30 DAYS LATER AND THE THIRD INSTALLMENT OF $100 60 DAYS AFTER YOUR DISCHARGE. YOUR HONORABLE DISCHARGE CERTIFICATE FROM THE NAVY MAY REFLECT PAYMENTS OF MUSTERING-OUT PAY.

HOWEVER, IF YOU DID NOT RECEIVE THOSE INSTALLMENTS, THE RIGHT TO PRESENT CLAIM THEREFOR ACCRUED NOT LATER THAN FEBRUARY 19, 1946, AND UNDER THE ABOVE-MENTIONED 1940 LAW SUCH RIGHT CONTINUED FOR A PERIOD OF 10 YEARS. ALSO, IN VIEW OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, APPROVED OCTOBER 17, 1940, CH. 888, 54 STAT. 1181, 50 U.S.C. APP. 525, SUCH 10-YEAR PERIOD WAS EXTENDED 10 MONTHS AND 10 DAYS, THE PERIOD OF YOUR ARMY SERVICE. IN OTHER WORDS, ORDER THAT YOUR CLAIM FOR MUSTERING-OUT PAY COULD BE CONSIDERED ON ITS MERITS, IT WAS NECESSARY FOR SUCH CLAIM TO HAVE BEEN RECEIVED HERE PRIOR TO DECEMBER 29, 1956. CONSIDERATION MAY NOT BE GIVEN TO THE CLAIM FOR SUCH PAY SINCE IT IS NOW BARRED BY THE 1940 LAW.

AT THE TIME YOU WERE DISCHARGED FROM THE NAVY THERE WAS NO LAW IN EFFECT WHICH PROVIDED FOR PAYMENT TO AN ENLISTED MEMBER FOR ACCUMULATED OR ACCRUED LEAVE (UNUSED FURLOUGH TIME). AFTER YOUR ENLISTMENT IN THE ARMY, THAT IS, ON AUGUST 9, 1946, THERE WAS ENACTED THE ARMED FORCES LEAVE ACT OF 1946, CH. 931, 60 STAT. 963, 37 U.S.C. 32, ET SEQ. (1946 ED.), WHICH PROVIDED FOR A UNIFORM SYSTEM OF LEAVE ACCUMULATION AND ACCRUAL BY MEMBERS OF THE ARMED FORCES AND PAYMENT THEREFOR UNDER SPECIFIED CONDITIONS. SECTION 3(A) OF THAT ACT PROVIDED, AMONG OTHER THINGS, FOR THE CREDIT OF LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE AND THAT, EXCEPT IN THE CASE OF LEAVE TO BE SETTLED AND COMPENSATED UNDER SECTION 6 OF THE ACT, LEAVE COULD BE TAKEN BY A MEMBER ON A CALENDAR-DAY BASIS AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS WHICH WERE TO BE ISSUED BY THE SEVERAL SECRETARIES.

SECTION 3(B) OF THE ABOVE 1946 LAW PROVIDED THAT NOTWITHSTANDING ANY OTHER PROVISION OF THE ACT OR OF ANY OTHER LAW OR REGULATION, NO MEMBER OF THE ARMED FORCES SHOULD BE PERMITTED TO ACCUMULATE OR TO HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF 60 DAYS. IMPLEMENTING REGULATIONS OF THE ARMY IN EFFECT AT THE TIME OF YOUR ARMY SERVICE ARE CONTAINED IN ARMY REGULATION NO. 600-115, DATED AUGUST 20, 1946. PARAGRAPH 2 OF THAT REGULATION PROVIDED THAT A MEMBER WOULD BE ENTITLED TO LEAVE WHILE ON ACTIVE DUTY AND DURING SUCH PERIOD OF LEAVE HE WOULD BE ENTITLED TO THE SAME PAY AND ALLOWANCES HE WOULD HAVE RECEIVED IF NOT ON LEAVE.

THUS IT WILL BE SEEN THAT UNDER THE ABOVE 1946 LAW AND REGULATION A MEMBER ON ACTIVE DUTY AFTER THE ENACTMENT OF THAT LAW WAS NOT ENTITLED TO A LUMP-SUM PAYMENT FOR HIS ACCUMULATED AND ACCRUED LEAVE UPON DISCHARGE BUT WAS PERMITTED TO BE IN A TERMINAL LEAVE WITH PAY STATUS FOR A PERIOD NOT IN EXCESS OF 60 DAYS. IN YOUR CASE IT IS APPARENT THAT THE ARMY HAD CREDITED YOUR ACCOUNT WITH THE LEAVE WHICH YOU HAD ACCUMULATED DURING YOUR NAVY SERVICE - 56 DAYS AS YOU SAY - AND THAT IN ACCORDANCE WITH THE LAW AND REGULATIONS YOU WERE GRANTED 60 DAYS OF TERMINAL LEAVE WITH PAY, THE MAXIMUM AUTHORIZED, IMMEDIATELY PRIOR TO YOUR DISCHARGE.

WE FIND NOTHING IN THE RECORD INDICATING THAT YOU WERE NOT PAID PAY AND ALLOWANCES FOR THE PERIOD OF YOUR TERMINAL LEAVE. HOWEVER, IF YOU WERE NOT PAID SUCH PAY AND ALLOWANCES, THE RIGHT TO PRESENT CLAIM THEREFOR ACCRUED ON DATE OF DISCHARGE, FEBRUARY 17, 1947. SINCE THE ACT OF OCTOBER 9, 1940, SUPRA, PRESCRIBES A 10-YEAR TIME LIMITATION FOR THE CONSIDERATION OF COGNIZABLE CLAIMS YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD YOU WERE ON TERMINAL LEAVE COULD BE CONSIDERED ONLY IF IT HAD BEEN FILED AT ANY TIME PRIOR TO FEBRUARY 17, 1957. THE CLAIM WAS RECEIVED HERE ON APRIL 9, 1970, OR MORE THAN 10 YEARS AFTER IT FIRST ACCRUED AND THEREFORE THIS OFFICE IS PRECLUDED BY THE 1940 LAW FROM CONSIDERING IT ON ITS MERITS.

EVEN IF IT WERE ESTABLISHED THAT YOU HAD FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY WITHIN THE 10-YEAR STATUTORY LIMITATION PERIOD, THIS OFFICE WOULD BE WITHOUT AUTHORITY TO ACT ON THE CLAIM SINCE THE 1940 LAW REQUIRES THAT SUCH CLAIM BE TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE IN ORDER THAT IT MAY BE CONSIDERED.

IN VIEW OF THE ABOVE, THERE IS NO FURTHER ACTION WHICH THIS OFFICE LEGALLY MAY TAKE ON YOUR CLAIM.