B-129554, DEC. 4, 1956

B-129554, DEC. 4, 1956

TO MR. JAMES A. SIMMONS, NO. 29772:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 9, 1956, IN WHICH YOU REQUEST THAT WE GIVE FURTHER CONSIDERATION TO YOUR CLAIM (NO. Z1 679-593) FOR MUSTERING-OUT PAY BELIEVED TO BE DUE YOU FEBRUARY 5, 1942, THE DATE YOU WERE DISCHARGED.

BY OUR SETTLEMENT DATED APRIL 12, 1956, THAT CLAIM WAS DISALLOWED BECAUSE OF THE PROVISION IN THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED (38 U.S.C. 691C), THAT ALL PERSONS SEPARATED FROM THE SERVICE BEFORE FEBRUARY 3, 1944, MUST MAKE APPLICATION FOR MUSTERING-OUT PAY NOT LATER THAN FEBRUARY 3, 1950--- YOUR CLAIM NOT HAVING BEEN PRESENTED UNTIL SEPTEMBER 1955.

YOU REFER TO 28 U.S.C. 2501 WHICH, YOU STATE, PROVIDES "THAT A PETITION ON THE CLAIM OF A PERSON UNDER LEGAL DISABILITY OR BEYOND THE SEAS AT THE TIME THE CLAIM ACCRUES MAY BE FILED WITHIN THREE YEARS AFTER THE DISABILITY CEASES.' WHILE YOU INDICATE THAT THE PROVISION MENTIONED DOES NOT APPLY TO THE GENERAL ACCOUNTING OFFICER, IT HAVING SPECIFIC REFERENCE TO THE FILING OF PETITIONS IN THE COURT OF CLAIMS, YOU SUGGEST THAT PERHAPS THERE IS A SIMILAR PROVISIONS WHEREBY YOUR CLAIM FOR MUSTERING-OUT PAY CAN BE GIVEN FURTHER CONSIDERATION.

THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, AS CODIFIED IN 38 U.S.C. 691C, PROVIDES--- IN PERTINENT PART--- AS FOLLOWS:

"ANY MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO SHALL HAVE BEEN DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BEFORE FEBRUARY 3, 1944 SHALL, IF APPLICATION THEREFOR IS MADE NOT LATER THAN FEBRUARY 3, 1950, BE PAID SUCH MUSTERING-OUT PAYMENT * *

THAT STATUTE DOES NOT INCLUDE A PROVISION WHICH WOULD AUTHORIZE A MUSTERING-OUT PAYMENT UNDER THE CIRCUMSTANCES OF YOUR CASE AND WE KNOW OF NO GENERAL LAW WHICH COULD BE CONSIDERED AS EXTENDING THE TIME LIMITATION PRESCRIBED IN THAT STATUTE FOR FILING CLAIMS. ACCORDINGLY, WE HAVE NO BASIS UPON WHICH WE MAY AUTHORIZE PAYMENT OF YOUR CLAIM.