B-158965, MAY 13, 1966

B-158965, MAY 13, 1966

TO MR. DONALD C. GOEWEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1966, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 1, 1950, THROUGH MARCH 5, 1951, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION BY LETTER DATED MARCH 18, 1966, BECAUSE OF THE PROVISIONS OF THE 10-YEAR BARRING ACT 31 U.S.C. 71A, 237.

THE RECORD BEFORE US SHOWS THAT YOU WERE DISCHARGED FROM YOUR COMMISSION AS CAPTAIN, UNITED STATES AIR FORCE, ON MARCH 5, 1951, UNDER CONDITIONS OTHER THAN HONORABLE BY REASON OF ACCEPTANCE OF YOUR RESIGNATION FOR THE GOOD OF THE SERVICE, AND YOUR TEMPORARY APPOINTMENT AS MAJOR, AIR FORCE OF THE UNITED STATES, WAS TERMINATED THE SAME DATE. THEREAFTER, YOU APPEALED TO THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS AND ON DECEMBER 3, 1965, THE ASSISTANT SECRETARY OF THE AIR FORCE, UNDER THE AUTHORITY OF 10 U.S.C. 1552, APPROVED THE RECOMMENDATIONS OF THAT BOARD AND DIRECTED THAT:

"1. THE PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR FORCE, RELATING TO DONALD C. GOEWEY, 8179A, BE CORRECTED TO SHOW THAT ON 19 JANUARY 1951 HE SUBMITTED AN UNQUALIFIED RESIGNATION UNDER THE PROVISIONS OF PARAGRAPH 5A, AFR 36-12, DATED 5 JUNE 1950, AS AMENDED, FROM ALL COMMISSIONS HELD BY HIM AS AN OFFICER OF THE UNITED STATES AIR FORCE WHICH RESIGNATION WAS ACCEPTED AND THE SAID DONALD C. GOEWEY, 8179A, WAS DISCHARGED EFFECTIVE 5 MARCH 1951 AND FURNISHED AN HONORABLE DISCHARGE CERTIFICATE.

"2. ALL NECESSARY AND APPROPRIATE ACTION BE TAKEN IN CONSONANCE WITH THIS DIRECTIVE.'

ON THE BASIS OF THE ABOVE CORRECTION, THE DEPARTMENT OF THE AIR FORCE ALLOWED YOU THE NET AMOUNT OF $467.10, REPRESENTING TRAVEL ALLOWANCES ON DISCHARGE FOR YOU AND YOUR DEPENDENTS FROM BOLLING AIR FORCE BASE, WASHINGTON, D.C., TO HOME OF RECORD, PALM BEACH, FLORIDA, PLUS BASE PAY, BASIC ALLOWANCE FOR SUBSISTENCE AND BASIC ALLOWANCE FOR QUARTERS FOR 30 DAYS ACCRUED LEAVE AT THE DATE OF SEPARATION (PAID MARCH 14, 1966, ON VOUCHER NO. P 9014).

YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 1, 1950, THROUGH MARCH 5, 1951, WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 4, 1966. OUR CLAIMS DIVISION DISALLOWED THAT CLAIM BY LETTER OF MARCH 18, 1966, ON THE BASIS OF THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237. UNDER THE PROVISIONS OF THAT ACT WE ARE PRECLUDED FROM CONSIDERING THE CLAIM OF ANY PERSON AGAINST THE UNITED STATES WHICH IS COGNIZABLE BY OUR OFFICE, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE, UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE IT FIRST ACCRUED. SINCE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 4, 1966, OR MORE THAN TEN YEARS AFTER IT FIRST ACCRUED, YOU WERE PROPERLY ADVISED THAT UNDER THE LAW WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM.

YOU CONTEND THAT YOUR RIGHT TO BACK PAY AND ALLOWANCES FROM OCTOBER 10 (1) 1950, THROUGH MARCH 5, 1951, DID NOT ARISE OR ACCRUE UNTIL THE ISSUANCE OF THE DIRECTIVE OF THE SECRETARY OF THE AIR FORCE (ASSISTANT SECRETARY OF THE AIR FORCE) DATED DECEMBER 3, 1965 (COPY OF WHICH YOU ENCLOSED) AND, THEREFORE, YOU FEEL THAT YOUR CLAIM IS NOT BARRED.

IT IS WELL SETTLED THAT UPON CORRECTION OF RECORDS PURSUANT TO 10 U.S.C. 1552, A MEMBER'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO THE PAY, ALLOWANCES AND OTHER BENEFITS PURSUANT TO THE PAY AND OTHER APPLICABLE STATUTES WHEN APPLIED TO THE FACTS IN HIS CASE AS THEY APPEAR FROM THE CORRECTED RECORD. 34 COMP. GEN. 7, AND 40 COMP. GEN. 502. WHILE THE TEN-YEAR LIMITATION PERIOD OF THE ACT OF OCTOBER 9, 1940, GENERALLY IS CONSIDERED AS COMMENCING TO RUN FROM THE DATE THE CORRECTION ACTION IS TAKEN IN SUCH CASES (39 COMP. GEN. 20, 21), THAT ACTION HAS EFFECT FOR PAY AND ALLOWANCE PURPOSES ONLY TO THE EXTENT THAT THE CORRECTION BOARD CHANGES THE FACTS OF RECORD SO AS TO GIVE THE MEMBER FINANCIAL RIGHTS HE DID NOT HAVE BEFORE. CF. HAISLIP V. UNITED STATES, 152 CT.CL. 339 (1961) AND B-154873, DECEMBER 17, 1964. YOU WERE ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 1, 1950, TO MARCH 5, 1951, EVEN BEFORE YOU RECEIVED AN HONORABLE DISCHARGE FROM SERVICE AND THE CORRECTION BOARD ACTION DID NOT CHANGE ANY MATERIAL FACTS EXISTING IN YOUR MILITARY RECORD WITH RESPECT TO YOUR RIGHT TO SUCH PAY AND ALLOWANCES. SINCE YOU HAD A RIGHT TO FILE A CLAIM ON AND AFTER MARCH 6, 1951, FOR ANY UNPAID PAY AND ALLOWANCES DUE YOU AT THAT TIME AND YOU FILED NO CLAIM WITH THIS OFFICE WITHIN TEN YEARS AFTER THAT DATE, YOUR CLAIM IS NOW BARRED UNDER THE PROVISIONS OF 31 U.S.C. 71A, 237.

IT SHOULD BE NOTED IN THIS CONNECTION THAT UNDER THE PROVISIONS OF SECTION 4 (D) OF THE ARMED FORCES LEAVE ACT OF 1946, CH. 961, 60 STAT. 964, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, CH. 475, 61 STAT. 749, AND PARAGRAPHS 4157-5 AND 5301, JOINT TRAVEL REGULATIONS, YOU WERE NOT ENTITLED TO PAYMENT FOR ACCRUED LEAVE OR MILEAGE ALLOWANCE FOR TRAVEL TO YOUR HOME BECAUSE YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS ON MARCH 5, 1951. THE CHANGE EFFECTED BY THE CORRECTION BOARD THUS ENTITLED YOU TO PAYMENT FOR SUCH ITEMS AND THE PAYMENT ON VOUCHER NO. P 9014 WAS MADE ON THAT BASIS.

ACCORDINGLY, ON THE RECORD BEFORE US, THE ACTION TAKEN ON YOUR CLAIM BY OUR CLAIMS DIVISION IN LETTER OF MARCH 18, 1966, WAS PROPER AND IS SUSTAINED.