B-169769, MAY 22, 1970

B-169769, MAY 22, 1970

TO MR. JUAN D. ABRERA:

THE FINANCE CENTER, U. S. ARMY, INDIANAPOLIS, INDIANA, HAS FORWARDED TO THIS OFFICE YOUR LETTER OF NOVEMBER 14, 1969, CLAIMING MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR MILITARY SERVICE DURING WORLD WAR II.

OUR FILE SHOWS THAT ON AUGUST 7, 1968, YOU WROTE TO THE FINANCE CENTER CLAIMING MUSTERING-OUT PAY IN THE SUM OF $300 BASED ON YOUR MILITARY SERVICE FROM AUGUST 28, 1941, TO JULY 6, 1946. THAT CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION AND WAS RECEIVED ON AUGUST 26, 1968.

ON AUGUST 26, 1968, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE FROM THE MILITARY SERVICE. THEREFORE, AND SINCE THE FILE DID NOT SHOW THAT YOU HAD FILED AN EARLIER CLAIM FOR MUSTERING- OUT PAY, THE CLAIMS DIVISION ADVISED YOU IN A LETTER DATED OCTOBER 21, 1968, THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, A COPY OF WHICH WAS FURNISHED TO YOU. ALSO, AS REQUIRED BY THAT ACT, THE CLAIM WAS RETURNED TO YOU.

THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, READS IN PERTINENT PART AS FOLLOWS:

"(1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"(2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION."

BY LETTER DATED DECEMBER 20, 1968, YOU REQUESTED RECONSIDERATION OF THE CLAIM. AS A BASIS FOR SUCH REQUEST YOU REFERRED TO THE 1952 MUSTERING-OUT PAYMENT LAW, PUBLIC LAW 550, APPROVED JULY 16, 1952, CH. 875, AS RECODIFIED IN 38 U.S.C. 2101 TO 2105, AND PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173. IN REPLY, OUR CLAIMS DIVISION EXPLAINED TO YOU IN A LETTER DATED FEBRUARY 13, 1969, THE EFFECT OF THE ACT OF OCTOBER 9, 1940, AND WHY PUBLIC LAW 89-50--WHICH AUTHORIZES MUSTERING-OUT PAY TO A RELATIVELY SMALL NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE OF THE UNITED STATES DURING A CERTAIN PERIOD AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING SUCH PAY BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE DATE OF JULY 17, 1959--DOES NOT APPLY IN YOUR CASE.

IN YOUR LETTER OF NOVEMBER 14, 1969, YOU URGE FAVORABLE ACTION ON YOUR CLAIM ON THE BASIS OF "ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9, 1963 APPROVED SEPTEMBER 30, 1965, DEADLINE SEPTEMBER 30, 1965."

WE ARE UNABLE TO IDENTIFY "ACT NO. 263." PUBLIC LAW 88-263 WAS ENACTED ON JANUARY 31, 1964, AND DOES NOT RELATE TO MUSTERING-OUT PAY. ALSO, NO LAW WAS ENACTED ON JANUARY 9, 1963, AND THE THREE SEPARATE LAWS WHICH WERE ENACTED ON SEPTEMBER 30, 1965, DEAL WITH SUBJECTS OTHER THAN MUSTERING-OUT PAY. THE LAW WHICH AUTHORIZED PAYMENT OF MUSTERING OUT PAY TO MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO WERE ENGAGED IN ACTIVE SERVICE DURING WORLD WAR II, WAS THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED JANUARY 3, 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.).

THE SOLE PROVISION OF LAW WHICH GOVERNS THE DISPOSITION OF YOUR CLAIM FOR MUSTERING-OUT PAY IS THE ACT OF OCTOBER 9, 1940. THAT ACT SPECIFICALLY PRECLUDES THIS OFFICE FROM CONSIDERING CLAIMS AGAINST THE UNITED STATES IF THOSE CLAIMS ARE NOT RECEIVED HERE WITHIN THE PRESCRIBED 10-YEAR LIMITATION PERIOD AFTER THE CLAIM FIRST ACCRUED.

YOUR CLAIM ACCRUED ON JULY 6, 1946, THE DATE OF YOUR SEPARATION FROM THE MILITARY SERVICE, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED THE CLAIM PRIOR TO JULY 6, 1956. SINCE IT WAS RECEIVED HERE ON AUGUST 26, 1968, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO ADVISE YOU THAT CONSIDERATION THEREOF WAS BARRED. ACCORDINGLY, THERE IS NO FURTHER ACTION WE MAY TAKE ON YOUR CLAIM.