B-165756, APR. 21, 1969

B-165756, APR. 21, 1969

TO SERGEANT DWIGHT C. GARREN, SR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1969, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR SERVICE IN THE ARMY.

YOUR CLAIM WAS DENIED BY THE DEPARTMENT OF THE ARMY, BY THE TREASURY DEPARTMENT, AND BY THE GENERAL ACCOUNTING OFFICE FOR THE REASON THAT THE RECORDS SHOW THAT A CLAIM IN THE AMOUNT OF $300, REPRESENTING MUSTERING- OUT PAY WAS PAID BY CHECK NO. 262228, DATED OCTOBER 1, 1952, SYMBOL NO. 215-142, WHICH CHECK WAS MAILED TO "DWIGHT C. GARREN" AT "1400 S. 3D STREET, PARIS, ARKANSAS," AND WAS PAID BY THE TREASURY DEPARTMENT AND DESTROYED PURSUANT TO LAW.

YOU SAY THAT YOU HAD NEVER MADE ANY CLAIM FOR MUSTERING-OUT PAY PRIOR TO YOUR RETIREMENT IN 1967; THAT TIME LIMITATIONS ON MAKING CLAIMS FOR BENEFITS PROVIDED BY LAW ARE INAPPLICABLE TO MEMBERS OF THE ARMED SERVICES SERVING ON ACTIVE DUTY; THAT IT HAS NOT BEEN ESTABLISHED THAT A CHECK IN PAYMENT OF YOUR MUSTERING-OUT PAY HAS IN FACT BEEN ISSUED AND PAID; THAT IF ISSUED IT WAS LOST, MISPLACED, STOLEN, OR DESTROYED IN TRANSIT; OR THAT SOMEONE CASHED IT ILLEGALLY; AND YOU REITERATE THAT TO THE BEST OF YOUR KNOWLEDGE YOU HAVE NOT RECEIVED THE CHECK IN QUESTION.

THE RECORDS OF THE ARMY FINANCE CENTER CLEARLY ESTABLISH THAT THE CHECK IN PAYMENT OF YOUR MUSTERING-OUT PAY WAS IN FACT ISSUED, AND THE RECORDS OF THE TREASURY DEPARTMENT CLEARLY ESTABLISH THE FACT THAT SUCH CHECK WAS HONORED AND PAID BY THE TREASURY DEPARTMENT. PURSUANT TO LAW THAT CHECK AND THE VOUCHER PURSUANT TO WHICH IT WAS PAID HAVE BEEN DESTROYED.

THE ARMY FINANCE CENTER HAS FORWARDED HERE A COPY OF AN "APPLICATION FOR MUSTERING-OUT PAYMENT UNDER VETERANS READJUSTMENT ASSISTANCE ACT OF 1952" IN WHICH IT IS STATED THAT "I ENCLOSE MY REPORT OF SEPARATION FROM THE ARMED FORCES OF THE UNITED STATES (DD FORM 214) FROM THE ARMY AND REQUEST THE MUSTERING-OUT PAYMENT AUTHORIZED BY LAW.'

THAT APPLICATION RECITES THAT YOU SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA AFTER JUNE 26, 1950, THAT YOU ARRIVED IN THE UNITED STATES ON JANUARY 6, 1951, THAT YOU HAD NOT RECEIVED MUSTERING- OUT PAYMENT FOR SERVICES AFTER JUNE 26, 1950, AND REQUESTED RETURN OF ,REPORT OF SEPARATION AND MAIL MY CHECK TO ME AT THE FOLLOWING ADDRESS: DWIGHT CEDRIC GARREN RA 38 258 132, 1400 SOUTH 3RD ST. PARIS ARKANSAS.' THAT APPLICATION IS SIGNED "DWIGHT CEDRIC REN," CONTAINS A WRITTEN FIGURE "30000 AND THE STAMPED ENDORSEMENT "MOP ACT OF 1952 PAID VOUCHER NUMBER 2746" IN THE ACCOUNTS OF H. D. LLOYD, SYMBOL NO. 215-142. THE SIGNATURE THEREON IS SIMILAR TO YOUR SIGNATURE AS IT APPEARS ON NUMEROUS PIECES OF CORRESPONDENCE WITH THE GOVERNMENT. A COPY OF SUCH APPLICATION IS ENCLOSED.

IN UNITED STATES V RIPLEY, 7 PET. (U.S.) 18, 25, THE SUPREME COURT OF THE UNITED STATES ID,"IT IS PRESUMED THAT EVERY PERSON WHO HAS BEEN ENGAGED IN THE PUBLIC SERVICE, HAS RECEIVED THE COMPENSATION ALLOWED BY LAW, UNTIL THE CONTRARY SHALL BE MADE TO APPEAR.' IN THE LIGHT OF THE RECORDS AVAILABLE IN YOUR CASE WE MAY NOT CONCLUDE THAT YOU HAVE NOT RECEIVED PAYMENT OF YOUR MUSTERING-OUT PAY TO WHICH YOU WERE ENTITLED UNDER THE ABOVE-CITED 1952 LAW.

WHILE THE PROVISIONS OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, 50 U.S.C. (APP.) 525, EXCLUDE THE PERIOD OF ACTIVE MILITARY SERVICE IN COMPUTING ANY PERIOD OF LIMITATIONS PROVIDED BY LAW FOR FILING CLAIMS AGAINST THE GOVERNMENT, IF IN FACT YOU DID NOT RECEIVE THAT CHECK YOUR LONG DELAY IN FILING CLAIM HAS DEPRIVED THE GOVERNMENT OF ANY RIGHT TO RECOURSE AGAINST ANY ENDORSERS WHO MAY HAVE WRONGFULLY NEGOTIATED YOUR MUSTERING-OUT PAY CHECK, WHICH WAS IN FACT ISSUED.

IN CLAIMS AGAINST THE GOVERNMENT THE BURDEN IS UPON THE CLAIMANT TO SHOW THAT HE IS ENTITLED TO THE AMOUNT CLAIMED. YOUR LETTER PROVIDES NO BASIS FOR QUESTIONING THE ACCURACY OF THE PUBLIC RECORDS WHICH SHOW PAYMENT OF MUSTERING-OUT PAY OF $300 AUTHORIZED IN YOUR CASE IN 1952 BY CHECK NO. 262228. WHILE YOU STATED IN YOUR LETTER OF JANUARY 10, 1968, THAT YOU HAD NOT LIVED AT 1400 SOUTH THIRD STREET IN PARIS, ARKANSAS,"SINCE 1949," YOU DIRECTED THAT THE MUSTERING-OUT CHECK BE MAILED TO YOU AT THAT ADDRESS SHORTLY BEFORE THAT CHECK WAS ISSUED. YOUR APPLICATION WAS NOT FILED UNTIL AFTER JULY 16, 1952, SINCE THE LAW UNDER WHICH YOU WERE PAID WAS NOT APPROVED UNTIL THAT DATE.

A CLAIM BASED ON A MERE DENIAL OF RECEIPT OF AMOUNTS WHICH ARE CLEARLY SHOWN BY OFFICIAL GOVERNMENT RECORDS TO HAVE BEEN PAID CURRENTLY, MADE LONG AFTER THE QUALIFYING SERVICE WAS RENDERED AND PAYMENT PRESUMED TO HAVE BEEN RECEIVED BY THE PARTY ENTITLED, IS OF TOO DOUBTFUL LEGALITY TO SUPPORT THE PAYMENT FROM PUBLIC FUNDS OF THE AMOUNT CLAIMED. IT HAS BEEN THE LONGSTANDING RULE OF THE COURTS THAT DOUBTFUL CLAIMS AGAINST THE GOVERNMENT SHOULD BE DISALLOWED BY THE ACCOUNTING OFFICERS AND THE CLAIMANTS LEFT TO THEIR REMEDY IN THE COURTS. SEE LONGWILL V UNITED STATES, 17 CT. CL. 288 (1881), AND CHARLES V UNITED STATES, 19 CT. CL. 316 (1884).

IN THE CIRCUMSTANCES, WE MUST INFORM YOU THAT THERE IS NO BASIS FOR THE PAYMENT OF YOUR CLAIM.