B-174751, MAY 15, 1972

B-174751, MAY 15, 1972

MILITARY PERSONNEL - PAY AND ALLOWANCES ENTITLEMENT - BARRING ACT OF 1940 CONCERNING THE CLAIM OF DORIS BERGSTROM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE ON AND SUBSEQUENT TO THE DATE OF HER DISCHARGE FROM THE NAVY. THE SUBJECT CLAIM WAS RECEIVED BY GAO MORE THAN 15 YEARS AFTER THE DATE OF DISCHARGE AND IS BARRED BY 31 U.S.C. 71A. THAT SECTION OF THE BARRING ACT WHICH WOULD EXTEND THE 10-YEAR LIMITATION DURING PERIODS OF WAR IS NOT FOR APPLICATION BECAUSE CLAIMANT WAS NOT ON ACTIVE DUTY DURING THE "VIETNAM WAR." SIMILARLY, NO AUTHORITY EXISTS FOR PAYMENT OF PAY AND ALLOWANCES SUBSEQUENT TO THE DISCHARGE, WHICH TERMINATED MISS BERGSTROM'S MILITARY STATUS. GOLDSTEIN V UNITED STATES, 131 CT. CL. 228 (1955). FINALLY, SINCE CLAIMANT WAS DISCHARGED PRIOR TO THE ENACTMENT OF THE ACT OF JULY 9, 1956, 50 U.S.C. 1016(A), SHE IS NOT ELIGIBLE FOR SEVERANCE OR LUMP-SUM READJUSTMENT PAY.

TO MISS DORIS BERGSTROM:

WE REFER TO YOUR LETTER DATED NOVEMBER 1, 1971, IN WHICH YOU HAVE, IN EFFECT, REQUESTED RECONSIDERATION OF YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE ON AND SUBSEQUENT TO FEBRUARY 10, 1956, DATE OF YOUR DISCHARGE FROM THE U.S. NAVY.

OUR FILES SHOW THAT YOU INITIALLY PRESENTED CLAIM FOR THE PAY AND ALLOWANCES IN AN UNDATED LETTER ADDRESSED TO THE NAVY FINANCE CENTER, CLEVELAND, OHIO, AND RECEIVED BY THEM SOMETIME IN JANUARY 1971. THAT LETTER WAS FORWARDED TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION AND IT WAS RECEIVED ON FEBRUARY 16, 1971. THE FINANCE CENTER ALSO FORWARDED TO THE CLAIMS DIVISION YOUR SUBSEQUENT LETTERS DATED MAY 11 AND JUNE 2, 1971, PERTAINING TO YOUR CLAIM. SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE, 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 OCTOBER 28, 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, 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: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED."

YOU SAY IN YOUR LETTER OF NOVEMBER 1, 1971, AMONG OTHER THINGS, THAT YOU WERE NOT GIVEN THE CUSTOMARY TWO WEEKS NOTICE OR SEVERANCE PAY WHEN YOU WERE DISCHARGED ON FEBRUARY 10, 1956, AND YOU CONTEND THAT YOU ARE STILL ON ACTIVE DUTY WITH THE NAVY. ALSO, YOU EXPRESS THE OPINION THAT BY YOUR BEING IN AN ACTIVE DUTY STATUS DURING THE "VIETNAM WAR" PERIOD YOUR CLAIM IS NOT BARRED BY THE 1940 LAW.

THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT THERE IS DUE YOU MONIES FROM THE UNITED STATES REPRESENTING TERMINAL PAY AND ALLOWANCES. INASMUCH AS YOU WERE DISCHARGED FROM THE NAVY ON FEBRUARY 10, 1956, IT MUST BE PRESUMED THAT YOU RECEIVED THE PAY AND ALLOWANCES TO WHICH YOU WERE NORMALLY ENTITLED ON THAT DATE. HOWEVER, IF YOU DID NOT RECEIVE ALL OF SUCH PAY AND ALLOWANCES, THE RIGHT TO PRESENT CLAIM THEREFOR ACCRUED ON THAT DATE AND UNDER THE ABOVE-MENTIONED 1940 LAW SUCH RIGHT CONTINUED FOR A PERIOD OF 10 YEARS. IN OTHER WORDS, IN ORDER THAT YOUR CLAIM FOR SUCH UNPAID PAY AND ALLOWANCES, IF ANY, COULD BE CONSIDERED ON ITS MERITS, IT WAS NECESSARY FOR SUCH CLAIM TO HAVE BEEN RECEIVED HERE PRIOR TO FEBRUARY 10, 1966.

THE ABOVE-QUOTED PROVISO IN THE 1940 LAW FOR EXTENDING THE 10-YEAR PERIOD IS APPLICABLE ONLY WHEN THE CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ACCRUES IN TIME OF WAR OR WHEN WAR INTERVENES WITHIN 5 YEARS AFTER ITS ACCRUAL. IN SUCH CASES THE CLAIM MAY BE PRESENTED WITHIN 5 YEARS AFTER PEACE IS ESTABLISHED. AS YOU WERE NOT IN THE MILITARY SERVICE AFTER FEBRUARY 10, 1956, THE PROVISO APPLICABLE TO MEMBERS SERVING IN THE MILITARY OR NAVAL SERVICE WHEN THE CLAIM ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, HAS NO APPLICATION IN YOUR CASE.

SINCE YOUR CLAIM WAS RECEIVED HERE ON FEBRUARY 16, 1971, OR MORE THAN 5 YEARS AFTER THE EXPIRATION OF THE 10-YEAR TIME LIMITATION PRESCRIBED IN THE 1940 LAW, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT WE ARE PRECLUDED BY THAT LAW FROM CONSIDERING IT. ACCORDINGLY, THERE IS NO FURTHER ACTION FOR US TO TAKE ON THAT PORTION OF YOUR CLAIM FOR ANY PAY AND ALLOWANCES BELIEVED TO BE DUE ON DATE OF DISCHARGE.

CONCERNING THAT PORTION OF YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD SUBSEQUENT TO DATE OF DISCHARGE NO LEGAL AUTHORITY EXISTS FOR PAYMENT THEREOF SINCE YOUR MILITARY STATUS WAS TERMINATED ON FEBRUARY 10, 1956. UPON SUCH TERMINATION ENTITLEMENT TO ANY ACTIVE DUTY PAY AND ALLOWANCES CEASED. IN THE CASE OF GOLDSTEIN V UNITED STATES, 131 CT. CL. 228 (1955), CERTIORARI DENIED, 350 U.S. 888, THE COURT SAID --

"NOR CAN IT BE HELD THAT THE ISSUANCE OF THE HONORABLE DISCHARGE IN 1952, IN LIEU OF THE DISHONORABLE DISCHARGE PREVIOUSLY ISSUED, HAD THE EFFECT OF ERASING PLAINTIFF'S 1945 SEPARATION AND ENTITLING HIM TO ARMY PAY BEYOND THAT DATE. THE HONORABLE DISCHARGE WAS DATED JULY 9, 1945, AND PLAINTIFF'S RECORDS AS CORRECTED SHOW THIS TO BE HIS DATE OF DISCHARGE. BOTH IN FACT AND OF RECORD, PLAINTIFF WAS SEPARATED FROM THE ARMY ON JULY 9, 1945."

SINCE YOU DID NOT RENDER ANY MILITARY SERVICE AFTER FEBRUARY 10, 1956, AS A MEMBER OF THE NAVY, THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF ANY ADDITIONAL PAY AND ALLOWANCES TO YOU.

SEVERANCE PAY OR LUMP-SUM READJUSTMENT PAY WHICH YOU MENTION WAS PROVIDED FOR BY SECTION 265(A) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, 50 U.S.C. 1016(A) (1952 ED., SUPP. IV), TO ANY ELIGIBLE RESERVE MEMBER WHO AFTER 5 YEARS OF ACTIVE SERVICE WAS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER JULY 9, 1956. THE PROVISIONS OF THAT LAW ARE NOT FOR APPLICATION IN YOUR CASE SINCE YOU WERE DISCHARGED PRIOR TO JULY 9, 1956.