B-91253, AUG. 15, 1966

B-91253, AUG. 15, 1966

TO CAPTAIN CHESTER V. JONES, USAF, RETIRED:

YOUR LETTER OF JULY 15, 1966, REQUESTS RECONSIDERATION OF SETTLEMENT DATED MAY 17, 1966, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR DISCHARGE ON NOVEMBER 17, 1945, FROM THE ARMY OF THE UNITED STATES TO ACCEPT AN APPOINTMENT IN THE REGULAR ARMY.

THE RECORD DISCLOSES THAT YOU HAD VARIOUS SERVICE IN THE NATIONAL GUARD, THE ARMY AND THE AIR FORCE FROM MARCH 14, 1916, TO SEPTEMBER 30, 1951, DATE OF YOUR RETIREMENT FROM THE AIR FORCE IN THE GRADE OF WARRANT OFFICER, JUNIOR GRADE. BY LETTER DATED SEPTEMBER 20, 1965, YOU PRESENTED A CLAIM FOR MUSTERING-OUT PAYMENT BASED ON YOUR SERVICE FROM DECEMBER 20, 1940, TO NOVEMBER 17, 1945, THE DATE ON WHICH YOU WERE DISCHARGED AS CAPTAIN, ARMY OF THE UNITED STATES, TO ACCEPT AN APPOINTMENT AS WARRANT OFFICER, JUNIOR GRADE, IN THE REGULAR ARMY. YOUR CLAIM WAS DENIED BY THE AIR FORCE ON FEBRUARY 4, 1966, BECAUSE MORE THAN 10 YEARS HAD ELAPSED SINCE THE DATE OF ACCRUAL OF YOUR CLAIM AND/OR THE DATE OF YOUR RETIREMENT. YOUR LETTER DATED FEBRUARY 23, 1966, REQUESTING RECONSIDERATION OF YOUR CLAIM UNDER THE ACT OF JUNE 24, 1965, PUB.L. 89- 50, 79 STAT. 173, WAS RECEIVED IN THIS OFFICE ON APRIL 4, 1966. SETTLEMENT DATED MAY 17, 1966, OUR CLAIMS DIVISION DENIED YOUR CLAIM.

THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, CH. 9, 58 STAT. 8, AUTHORIZED MUSTERING-OUT PAYMENTS TO MEMBERS WHO WERE DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS ON OR AFTER DECEMBER 7, 1941. THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 538, PROVIDED IN SECTION 7 (B) THAT SUCH MUSTERING-OUT PAYMENTS WOULD ACCRUE, AT THE OPTION OF THE MEMBER, UPON DISCHARGE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, FOREVER BARS EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES (WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE), UNLESS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUED. THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF OCTOBER 17, 1940, CH. 888, 54 STAT. 1181, PROVIDES THAT THE PERIOD OF MILITARY SERVICE SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY LAW FOR THE BRINGING OF ANY ACTION OR PROCEEDING BY OR AGAINST ANY PERSON IN MILITARY SERVICE, WHETHER THE CAUSE OF ACTION OR RIGHT ACCRUED PRIOR TO OR DURING THE PERIOD OF SUCH SERVICE. THUS, YOUR CLAIM FOR MUSTERING-OUT PAY, WHICH ACCRUED NOVEMBER 17, 1945, AT THE TIME OF YOUR INTEGRATION INTO THE REGULAR ARMY, FIRST RECEIVED IN THIS OFFICE ON APRIL 4, 1966, IS BARRED BY THE ACT OF OCTOBER 9, 1940, AS EXTENDED BY THE ACT OF OCTOBER 17, 1940, SINCE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS FROM SEPTEMBER 30, 1951, THE DATE OF YOUR RETIREMENT FROM ACTIVE MILITARY SERVICE.

THE ACT OF JULY 24, 1965, PUB.L. 89-50, 79 STAT. 173, ON WHICH YOU BASE YOUR CLAIM PROVIDES IN PERTINENT PART AS FOLLOWS:

"SEC. 2. SECTION 2104 OF TITLE 38, U.S.C. IS AMENDED BY INSERTING THE FOLLOWING NEW SENTENCE AFTER THE FIRST SENTENCE THEREOF: "NOTWITHSTANDING THE FIRST SENTENCE OF THIS SECTION OR SECTION 71A OF TITLE 31, A MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO WAS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE AS AN OFFICER OF AN ARMED FORCE UNDER HONORABLE CONDITIONS BEFORE JULY 16, 1952, FOR THE PURPOSE OF APPOINTMENT AS A WARRANT OFFICER OR COMMISSIONED OFFICER IN A REGULAR COMPONENT OF AN ARMED FORCE, SHALL, IF APPLICATION IS MADE BEFORE JANUARY 31, 1966, BE PAID MUSTERING-OUT PAYMENT BY THE SECRETARY CONCERNED BEGINNING WITHIN ONE MONTH AFTER APPLICATION HAS BEEN RECEIVED AND APPROVED.'"

THE LEGISLATIVE HISTORY OF H.R. 214 WHICH WAS SUBSEQUENTLY ENACTED AS PUB.L. 89-50, CLEARLY SHOWS THAT IT HAD REFERENCE TO A RELATIVELY SMALL NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, WHO WERE PRECLUDED FROM RECEIVING MUSTERING-OUT PAYMENT AS A RESULT OF FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO JULY 17, 1959, THE STATUTORY DEADLINE FIXED IN SECTION 2104. THAT SECTION IS A PART OF CHAPTER 43, 38 U.S. CODE, WHICH RELATES TO THE PAYMENT OF MUSTERING OUT PAY TO MEMBERS OF THE ARMED SERVICES "WHO SERVED ON ACTIVE DUTY DURING THE KOREAN CONFLICT.' SINCE YOUR CLAIM IS BASED ON ANOTHER LAW AND INVOLVES SERVICE DURING WORLD WAR II, IT IS CLEAR THAT THE 1965 ACT HAS NO APPLICATION IN YOUR CASE.

IN VIEW OF THE FOREGOING THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.