B-166168, MAR. 18, 1969

B-166168, MAR. 18, 1969

TO MR. FLORENCIO O. MERCADO:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1968, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE UNITED STATES ARMY ON FEBRUARY 12, 1946.

YOUR CLAIM FOR MUSTERING-OUT PAY, FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 21, 1968, WAS RETURNED TO YOU BY CLAIMS DIVISION LETTER OF JULY 3, 1968, WHICH ALSO ENCLOSED A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. THIS ACT FOREVER BARS CONSIDERATION OF ANY CLAIM AGAINST THE UNITED STATES WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THAT CLAIM FIRST ACCRUED.

BY LETTER DATED NOVEMBER 21, 1968, OUR CLAIMS DIVISION EXPLAINED TO YOU THAT THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, AS AMENDED, BARS CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED, WITH CERTAIN EXCEPTIONS RELATIVE TO MEMBERS REMAINING IN THE MILITARY SERVICE, WHICH ARE NOT APPLICABLE IN YOUR CASE.

YOU WERE ADVISED THAT SINCE MORE THAN 10 FULL YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE ON FEBRUARY 12, 1946, TO THE DATE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JUNE 21, 1968, IT WAS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940. YOU WERE ALSO ADVISED THAT OUR OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THAT ACT AND, THEREFORE, WE MAY MAKE NO EXCEPTION TO ITS PROVISIONS.

IN YOUR LETTER OF DECEMBER 30, 1968, YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM, CONTENDING IN EFFECT THAT THE ACT OF JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT. 173, EXTENDED THE TIME FOR FILING MUSTERING OUT PAYMENT CLAIMS.

THE SECTION OF PUBLIC LAW 89-50 TO WHICH YOU REFER PROVIDES IN PERTINENT PART:

"NOTWITHSTANDING THE FIRST SENTENCE OF THIS SECTION (SECTION 2104 OF TITLE 38, U.S. CODE) 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. * * *"

PUBLIC LAW 89-50 IS AN AMENDMENT TO CHAPTER 43 OF TITLE 38, U.S. CODE, WHICH PROVIDED FOR MUSTERING-OUT PAYMENTS TO THOSE PERSONS WHO SERVED DURING THE KOREAN CONFLICT. IT PERTAINS ONLY TO CERTAIN MEMBERS WHO WERE DISCHARGED OR RELIEVED FROM ACTIVE DUTY PRIOR TO JULY 16, 1952, IN ORDER TO BE APPOINTED A WARRANT OR COMMISSIONED OFFICER IN A REGULAR COMPONENT OF AN ARMED FORCE. SINCE YOU WERE DISCHARGED FROM MILITARY SERVICE PRIOR TO THE KOREAN CONFLICT, NEITHER CHAPTER 43 OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89-50 IS FOR APPLICATION IN YOUR CASE.

ANY MUSTERING-OUT PAY TO WHICH YOU MAY HAVE BEEN ENTITLED WOULD HAVE ACCRUED TO YOU BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 EDITION). CLAIMS UNDER THAT ACT ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9,1940, WHICH ACT REQUIRES THAT SUCH CLAIMS BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DATE THE CLAIM FIRST ACCRUED. YOUR CLAIM WAS RECEIVED IN THIS OFFICE FOR THE FIRST TIME ON JUNE 21, 1968, WHICH IS MORE THAN 22 YEARS AFTER FEBRUARY 12, 1946, THE DATE OF YOUR DISCHARGE AND THE DATE ON WHICH IT ACCRUED.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE 1940 BARRING ACT, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION WAS PROPER AND IS SUSTAINED.