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B-143197, MAR. 15, 1965

B-143197 Mar 15, 1965
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MOSES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9. IT WAS POINTED OUT IN SUCH SETTLEMENT THAT THE RECORDS SHOW THAT. YOU WERE RELEASED FROM ACTIVE DUTY DUE TO PHYSICAL DISABILITY. THAT NO ACTIVE DUTY ORDERS WERE ISSUED TO YOU AFTER MARCH 28. YOU WERE ADVISED. FOREVER BARS EVERY CLAIM AGAINST THE UNITED STATES UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. THAT SINCE YOUR CLAIM WAS NOT RECEIVED UNTIL OCTOBER 2. YOU WERE FURTHER ADVISED THAT. THERE IS NO AUTHORITY FOR THE ALLOWANCE OF THE ACTIVE DUTY PAY AND ALLOWANCES CLAIMED BY YOU. IS BARRED BY THE 1940 ACT. YOU THEN SAY THAT YOU WISH TO HAVE YOUR LETTER CONSIDERED AS A CLAIM FOR PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES AS A FIRST LIEUTENANT FOR THE PERIOD OCTOBER 2.

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B-143197, MAR. 15, 1965

TO MR. WALTER E. MOSES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1965, REQUESTING REVIEW OF THE ACTION TAKEN IN OUR SETTLEMENT OF JANUARY 6, 1965, RELATING TO YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES WHICH YOU BELIEVE TO BE DUE YOU AS LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, FROM MARCH 28, 1946, TO "CURRENT DATE.'

IT WAS POINTED OUT IN SUCH SETTLEMENT THAT THE RECORDS SHOW THAT, PURSUANT TO THE PROVISIONS OF ARMY REGULATIONS 605-250 AND WAR DEPARTMENT CIRCULAR 313, ISSUED IN 1945, YOU WERE RELEASED FROM ACTIVE DUTY DUE TO PHYSICAL DISABILITY, EFFECTIVE MARCH 28, 1946, AT WHICH TIME YOU REVERTED TO AN INACTIVE STATUS; THAT NO ACTIVE DUTY ORDERS WERE ISSUED TO YOU AFTER MARCH 28, 1946; AND THAT YOUR ARMY OF THE UNITED STATES APPOINTMENT AS LIEUTENANT COLONEL TERMINATED BY OPERATION OF LAW AS OF APRIL 1, 1953. YOU WERE ADVISED, GENERALLY, THAT THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, FOREVER BARS EVERY CLAIM AGAINST THE UNITED STATES UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED, AND THAT SINCE YOUR CLAIM WAS NOT RECEIVED UNTIL OCTOBER 2, 1964, SUCH STATUTORY PROVISIONS PRECLUDE OUR CONSIDERATION OF THE PORTION OF YOUR CLAIM FOR THE PERIOD PRIOR TO OCTOBER 2, 1954. YOU WERE FURTHER ADVISED THAT, IN THE ABSENCE OF FORMAL ORDERS CALLING YOU TO ACTIVE DUTY AFTER YOUR RELEASE FROM AN ACTIVE DUTY STATUS ON MARCH 28, 1946, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF THE ACTIVE DUTY PAY AND ALLOWANCES CLAIMED BY YOU, MEANING THE ACTIVE DUTY PAY AND ALLOWANCES CLAIMED BY YOU FOR THE PERIOD BEGINNING WITH OCTOBER 2, 1954.

IN YOUR LETTER OF JANUARY 9, 1965, YOU SAY THAT YOU INTERPRET THE SETTLEMENT OF JANUARY 6, 1965, TO MEAN (1) THAT YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD PRIOR TO OCTOBER 2, 1954, IS BARRED BY THE 1940 ACT, AND (2) THAT AFTER APRIL 1, 1953, YOU COULD NO LONGER CLAIM PAY AND ALLOWANCES AS A LIEUTENANT COLONEL BECAUSE YOUR RANK AS SUCH HAD BEEN TAKEN AWAY BY LAW. YOU THEN SAY THAT YOU WISH TO HAVE YOUR LETTER CONSIDERED AS A CLAIM FOR PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES AS A FIRST LIEUTENANT FOR THE PERIOD OCTOBER 2, 1954, TO OCTOBER 2, 1964. YOU ENCLOSED AN EXTRACT COPY OF SPECIAL ORDERS NO. 228, DATED NOVEMBER 24, 1954, ISSUED BY HEADQUARTERS TENNESSEE MILITARY DISTRICT, AND YOU SAY THAT SUCH ORDERS DIRECTED THAT YOU BE TRANSFERRED FROM THE NATIONAL GUARD OF THE UNITED STATES AND THE ARMY OF THE UNITED STATES TO THE "ARMY RESERVE (READY RESERVE, ACTIVE DUTY STATUS), EFFECTIVE APRIL 1, 1953, IN THE GRADE OF FIRST LIEUTENANT, WHICH WAS YOUR PERMANENT RANK. YOU STATE THAT THIS WOULD REMOVE ANY DOUBT THAT THE ARMY STILL CONSIDERED YOU AS FIT FOR THIS APPOINTMENT AND ONLY ALTERS THE CLAIM AS TO RANK.

YOU SAY THAT YOU WERE RELIEVED FROM ACTIVE DUTY AS A RESULT OF FINDINGS OF PHYSICAL DISABILITY MADE BY AN ARMY RETIRING BOARD CONVENED UNDER ARMY REGULATIONS 605-250. YOU STATE THAT THE FINDINGS AND RECOMMENDATIONS ON WHICH YOUR RELEASE WAS EFFECTED WERE DISAPPROVED BY ORDER OF THE SECRETARY OF WAR ON JUNE 14, 1946, AND YOU CONTEND THAT THERE WAS NO LEGAL BASIS FOR YOUR RELEASE UNDER THE CITED REGULATIONS BECAUSE THEY SPECIFICALLY PROVIDED THAT, IN SUCH CASES, THE OFFICER'S STATUS REMAINED THE SAME AS IT WAS BEFORE HIS APPEARANCE BEFORE THE RETIRING BOARD. FOR THAT REASON, YOU FURTHER CONTEND THAT YOU CONTINUED TO SERVE IN AN ACTIVE DUTY STATUS; THAT SUCH STATUS COULD ONLY BE TERMINATED BY PROPER ORDERS; AND THAT NO SUCH ORDERS WERE EVER ISSUED.

THE RECORDS DO NOT SHOW THAT ANY ORDERS WERE ISSUED CALLING YOU TO ACTIVE DUTY AFTER MARCH 28, 1946, AND AN EXAMINATION OF THE ORDERS OF NOVEMBER 24, 1954, DISCLOSES THAT, EFFECTIVE APRIL 1, 1953, YOU WERE TRANSFERRED TO THE "ARMY RESERVE (READY RESERVE, ACTIVE STATUS)," AND NOT TO THE ,ARMY RESERVE (READY RESERVE, ACTIVE DUTY STATUS).' THE TERM "ACTIVE DUTY" IS DEFINED IN ARMY REGULATIONS 140-305, DECEMBER 5, 1952, AS: "FULL TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES OTHER THAN ACTIVE DUTY FOR TRAINING.' IN THE SAME REGULATIONS, THE DEFINITION OF THE TERM "ACTIVE STATUS" READS AS FOLLOWS: "ALL MEMBERS OF THE READY RESERVE AND MEMBERS OF THE STANDBY RESERVE, EXCEPT THOSE ON THE INACTIVE STATUS LIST, ARE IN AN ACTIVE STATUS.' IT IS CLEAR THAT THE ORDERS OF NOVEMBER 24, 1954, DID NOT EFFECT YOUR RECALL TO AN ACTIVE DUTY STATUS.

IT HAS BEEN HELD THAT THE CONTINUANCE OR DISCONTINUANCE OF THE ACTIVE DUTY STATUS OF OFFICERS OF THE ARMY OF THE UNITED STATES IS A MATTER WITHIN THE DISCRETION OF THE SECRETARY OF THE ARMY, AND THAT THERE IS NO AUTHORIZATION FOR PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES FOR A PERIOD DURING WHICH SUCH AN OFFICER IS IN AN INACTIVE STATUS. KILBANKS V. UNITED STATES, 139 CT.CL. 128, 133 (1957). PARAGRAPH 57, SPECIAL ORDERS NO. 295, ISSUED AT CAMP BLANDING, FLORIDA, ON DECEMBER 17, 1945, DIRECTED YOU TO PROCEED TO YOUR HOME AND "REVERT TO INACTIVE STATUS DUE TO PHYSICAL DISABILITY" (APPARENTLY REGARDED AS NOT BEING SERVICE CONNECTED) ON MARCH 28, 1946. WE CONSIDER THAT, IN THE ABSENCE OF A JUDICIAL DETERMINATION THAT THE ORDERS OF DECEMBER 17, 1945, EFFECTING YOUR RELEASE FROM ACTIVE DUTY ARE INVALID, WE HAVE NO JURISDICTION TO AUTHORIZE THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO YOU AFTER THE DATE OF SUCH RELEASE FROM ACTIVE DUTY.

ACCORDINGLY, WE FIND NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM, AND, UPON REVIEW, THE SETTLEMENT OF JANUARY 6, 1965, IS SUSTAINED. YOUR ARMY OF THE UNITED STATES CERTIFICATE OF SERVICE IS RETURNED HEREWITH.

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