B-144072, NOV. 4, 1966

B-144072, NOV. 4, 1966

TO MR. ROMEO H. BON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 26, 1966, TO THE SETTLEMENT DIVISION, FINANCE CENTER, U.S. ARMY, RELATIVE TO YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE MILITARY SERVICE AS A PHILIPPINE SCOUT ON MARCH 9, 1949. YOUR LETTER WAS REFERRED HERE FOR REPLY.

YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 29, 1959, AND ON JANUARY 19, 1960, THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE RETURNED THE CLAIM TO YOU FOR THE REASON THAT IT WAS NOT TIMELY RECEIVED AND CONSEQUENTLY WAS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A. ALSO, OUR CLAIMS DIVISION SENT YOU A COPY OF THE ACT OF OCTOBER 9, 1940.

IN OUR DECISION OF OCTOBER 11, 1960, B-144072 TO YOU, COPY HEREWITH, WE SET FORTH THE FACTS AND THE LAW APPLICABLE TO THE CLAIM. WE EXPLAINED THAT SINCE THE CLAIM WAS NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER IT FIRST ACCRUED ON MARCH 9, 1949, THE DATE OF YOUR DISCHARGE, THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, BARRED OUR CONSIDERATION OF THE CLAIM. POINTED OUT THAT THE 1940 ACT IS NOT A MERE STATUTE OF LIMITATION BUT MAKES TIMELY RECEIPT HERE A CONDITION PRECEDENT TO HAVING CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE AND THAT OUR OFFICE CAN MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE NOR GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. FURTHER, WE POINTED OUT THAT THE LAW REQUIRES THAT THE CLAIM BE FILED HERE WITHIN 10 FULL YEARS AFTER IT FIRST ACCRUED, AND THEREFORE, THE FACT THAT IN 1953 YOU MAY HAVE FILED A CLAIM WITH THE ARMY WOULD NOT SATISFY THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940.

IN YOUR PRESENT LETTER YOU REFER TO PUBLIC LAW 89-50 WHICH YOU SAY EXTENDED THE TIME FOR FILING A CLAIM FOR MUSTERING-OUT PAY UNTIL JULY 1966. APPARENTLY, YOU BELIEVE THAT THIS STATUTE IS APPLICABLE TO YOUR CLAIM AND THAT YOU ARE ENTITLED TO MUSTERING-OUT PAY.

THE ACT OF JUNE 24, 1965, PUB.L. 89-50, 79 STAT. 173, 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 ARE 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 WAS A PART OF CHAPTER 43, 38 U.S. CODE, WHICH RELATED 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 THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, CH. 9, 58 STAT. 8, AS AMENDED, AND INVOLVES SERVICE DURING WORLD WAR II, IT IS CLEAR THAT THE 1965 ACT HAS NO APPLICATION IN YOUR CASE. SEE 45 COMP. GEN. 335, COPY ENCLOSED.

ACCORDINGLY, THERE IS NO LEGAL BASIS UPON WHICH WE MAY ALLOW YOUR CLAIM. IN THESE CIRCUMSTANCES THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.