B-165585, FEB. 20, 1969

B-165585, FEB. 20, 1969

TO MR. NAZARIO U. QUINTO:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1969, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE UNITED STATES ARMY ON OCTOBER 16, 1946, WHICH WAS THE SUBJECT OF OUR DECISION OF NOVEMBER 26, 1968, B-165585, TO YOU.

IT APPEARS TO BE YOUR BELIEF THAT THE ACT OF JUNE 24, 1965, PUBLIC LAW 89 -50, 79 STAT. 173, AMENDS THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, AS AMENDED, TO EXTEND THE PERIOD IN WHICH CERTAIN VETERANS MAY FILE CLAIMS FOR AMOUNTS DUE THEM. YOU THEREFORE REQUEST THAT YOUR CLAIM FOR MUSTERING-OUT PAY WHICH WAS FIRST RECEIVED IN OUR OFFICE ON APRIL 18, 1968, BE GIVEN CONSIDERATION. IT IS YOUR CONTENTION THAT THE ACT OF OCTOBER 9, 1940, IS ONLY APPLICABLE TO VETERANS OF WORLD WAR I.

YOU WERE ADVISED IN THE DECISION OF NOVEMBER 26, 1968, AND ALSO BY OUR CLAIMS DIVISION, THAT SINCE MORE THAN 10 FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE ON OCTOBER 16, 1946, AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON APRIL 18, 1968, THE CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940. YOU WERE FURTHER ADVISED THAT OUR OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THIS ACT AND, THEREFORE, WE MAY MAKE NO EXCEPTION TO ITS PROVISIONS.

THE ACT OF OCTOBER 9, 1940 PROVIDES IN MATERIAL PART AS FOLLOWS:

"* * * THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * * *" THUS, IT IS APPLICABLE TO ALL CLAIMS COGNIZABLE BY OUR OFFICE INCLUDING ANY CLAIM FOR MUSTERING-OUT PAY INCIDENT TO SERVICE IN EITHER WORLD WAR I OR II.

THE ACT OF JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT. 173, PROVIDES:

"* * * NOTWITHSTANDING THE FIRST SENTENCE OF THIS SECTION (38 U.S.C. 2104) 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 * * *.' THIS LAW, AS IT WAS POINTED OUT TO YOU IN OUR DECISION OF NOVEMBER 26, 1968, WAS ENACTED TO AUTHORIZE MUSTERING-OUT PAY TO A SMALL NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE PREVIOUS STATUTORY DEADLINE DATE OF JULY 17, 1959. IT PLAINLY DOES NOT AMEND THE ACT OF OCTOBER 9, 1940, IN SUCH A WAY AS TO PERMIT YOUR CLAIM FOR MUSTERING-OUT PAY TO BE CONSIDERED ON ITS MERITS BY OUR OFFICE.

YOUR LETTER OF JANUARY 27, 1969, PRESENTS NO PERTINENT INFORMATION NOT CONSIDERED IN THE DECISION OF NOVEMBER 26, 1968, TO YOU, AND CONSEQUENTLY PROVIDES NO BASIS FOR A CONCLUSION CONTRARY TO THAT REACHED IN THAT DECISION. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS AGAIN SUSTAINED.