B-166457, APR. 8, 1969

B-166457, APR. 8, 1969

TO MR. FLEGONTES C. TAMBOT:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 24, 1969, IN EFFECT REQUESTING REVIEW OF THE ACTION HERETOFORE TAKEN ON YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE ARMY OF THE UNITED STATES IN 1946.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED SEPTEMBER 9, 1968, AND JANUARY 8, 1969, IN WHICH YOU WERE ADVISED THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT READS IN PERTINENT PART:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

IN CONNECTION WITH THE ABOVE-QUOTED ACT, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

YOU EXPRESS THE BELIEF THAT THE ACT OF OCTOBER 9, 1940, DOES NOT BAR CONSIDERATION OF YOUR CLAIM SINCE PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, EXTENDED THE TIME FOR FILING CERTAIN CLAIMS FOR MUSTERING-OUT PAYMENTS UNDER CHAPTER 42 (43) OF TITLE 38, U.S.C.

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

"NOTWITHSTANDING THE FIRST SENTENCE OF THIS 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 PAYMENT TO THOSE PERSONS WHO SERVED ON ACTIVE DUTY DURING THE KOREAN CONFLICT. INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE ON JANUARY 31, 1946, AND DID NOT SERVE IN THE KOREAN CONFLICT, NEITHER CHAPTER 43 OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89-50, HAS ANY APPLICATION IN YOUR CASE.

ANY MUSTERING-OUT PAYMENT TO WHICH YOU MAY HAVE BEEN ENTITLED ACCRUED TO YOU BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.). CLAIMS UNDER THAT ACT ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT SUCH CLAIMS BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DATE THE CLAIM FIRST ACCRUED. SINCE YOU WERE DISCHARGED FROM THE SERVICE ON JANUARY 31, 1946, THAT IS THE DATE YOUR CLAIM FIRST ACCRUED AND IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM ON OR BEFORE JANUARY 31, 1956, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS RECEIVED HERE ON AUGUST 1, 1968, MORE THAN 22 YEARS AFTER THE DATE OF YOUR DISCHARGE.

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