B-174370, FEB 22, 1972

B-174370, FEB 22, 1972

MILITARY PERSONNEL - MUSTERING-OUT PAY - STATUTE OF LIMITATIONS DECISION DENYING CLAIM OF STAFF SGT. NICK N. VRETTOS, JR., USA, RETIRED, FOR CHECKS IN PAYMENT OF MUSTERING-OUT PAY INCIDENT TO CLAIMANT'S SERVICE WITH THE ARMY DURING THE KOREAN CONFLICT. CONSIDERATION OF THE CLAIM IS NOT PRECLUDED BY THE PROVISIONS OF 31 U.S.C. 122, SINCE IT WAS RECEIVED WITHIN SIX YEARS OF CLAIMANT'S RETIREMENT, PURSUANT TO THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, 50 U.S.C. APP. 525. HOWEVER, THE RECORD INDICATES THAT THE SUBJECT CHECKS WERE MAILED IN CARE OF CLAIMANT'S PARENTS AND THEY FAIL TO BE LISTED ON THE DISBURSING OFFICER'S OUTSTANDING CHECK LIST. ABSENT EVIDENCE TO THE CONTRARY, IT MUST BE PRESUMED THAT THE CHECKS WERE NEGOTIATED IN DUE COURSE. ACCORDINGLY, THE CLAIM IS DENIED.

TO STAFF SERGEANT NICK N. VRETTOS, JR.:

BY LETTER DATED MAY 14, 1971, WHICH WAS RECEIVED IN THIS OFFICE ON AUGUST 5, 1971, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FORWARDED FOR APPROPRIATE ACTION A LETTER DATED APRIL 27, 1971, FROM THE DEPARTMENT OF THE ARMY, UNITED STATES ARMY SUPPORT ELEMENT, PHILIPPINES, APO SAN FRANCISCO 96528, FURNISHING CORRESPONDENCE PERTAINING TO YOUR CLAIM FOR THE PROCEEDS OF MUSTERING-OUT PAY CHECKS NOS. 487,406 AND 487,407, EACH FOR $100, DRAWN TO YOUR ORDER ON MARCH 16, 1956, AND APRIL 16, 1956, RESPECTIVELY, OVER DISBURSING OFFICER SYMBOL D215576A, AND REQUESTING THAT YOU BE ADVISED IN THE MATTER.

THE RECORD SHOWS THAT SOMETIME IN 1968 YOU INITIALLY PRESENTED A CLAIM TO THE ARMY FINANCE CENTER FOR THE SECOND AND THIRD INSTALLMENTS OF MUSTERING -OUT PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY DURING THE KOREAN CONFLICT. ON JANUARY 30, 1969, THE ARMY FINANCE CENTER DENIED YOUR CLAIM ON THE BASIS THAT PAYMENT PREVIOUSLY HAD BEEN MADE TO YOU, AS EVIDENCED BY YOUR FINAL MILITARY PAY RECORD WHICH SHOWED THAT TWO CHECKS COVERING THE SEPARATE PAYMENTS OF $100 EACH HAD BEEN ISSUED AND THAT THERE WAS NO RECORD OF SUCH CHECKS BEING RETURNED AND CANCELLED.

IN A LETTER DATED MARCH 19, 1969, YOU QUESTIONED THE ACTION TAKEN ON YOUR CLAIM. YOU ADVISED THAT THE SUBJECT CHECKS WERE MAILED TO YOU AT THE ADDRESS OF YOUR PARENTS, BUT THAT THEY WERE NEVER RECEIVED BY YOU. ALSO YOU STATED THAT IF THE CHECKS WERE RECEIVED BY YOUR PARENTS THEY WOULD HAVE GIVEN THEM TO YOU. THAT LETTER WAS FORWARDED TO OUR CLAIMS DIVISION, WHICH RECEIVED IT ON SEPTEMBER 3, 1969. BY LETTER DATED OCTOBER 20, 1969, THE CLAIMS DIVISION ADVISED YOU THAT NO ACTION COULD BE TAKEN ON YOUR CLAIM PENDING THE RECEIPT OF INFORMATION SHOWING A COMPLETE DESCRIPTION OF THE CHECKS.

BY YOUR LETTER DATED NOVEMBER 22, 1969, YOU FURNISHED COPIES OF YOUR PAY ACCOUNT FOR THE PERIOD JANUARY 1 TO FEBRUARY 16, 1956, DATE OF YOUR DISCHARGE. THOSE PAPERS REVEAL THAT THE ABOVE DESCRIBED CHECKS WERE ISSUED TO COVER PAYMENT OF THE SECOND AND THIRD INSTALLMENTS OF MUSTERING- OUT PAY EACH FOR $100. IN THE LETTER OF NOVEMBER 22, 1969, YOU MENTIONED THAT THE CHECKS WERE SUPPOSED TO HAVE BEEN SENT TO YOU AT YOUR PARENTS' ADDRESS, 2452 NORTH HARDING AVENUE, CHICAGO, ILLINOIS, AND YOU SAID THAT FOR SOME REASON OR OTHER THE CHECKS WERE NEVER SENT TO YOU.

IN RESPONSE TO A REQUEST FOR A CHECK STATUS REPORT, THE TREASURER OF THE UNITED STATES ON JANUARY 19, 1970, ADVISED THE CLAIMS DIVISION THAT THE SUBJECT CHECKS WERE NOT ON THE OUTSTANDING LIST (IF THE CHECKS WERE OUTSTANDING AND UNPAID THEY WOULD BE REFLECTED ON THE DISBURSING OFFICER'S OUTSTANDING CHECK LIST). SINCE THE EXAMINATION OF SUCH LIST REVEALED THAT THE CHECKS WERE NOT INCLUDED THEREON, THE INDICATION IS THAT ON A PRIOR DATE THEY WERE EITHER PAID BY THE TREASURER OF THE UNITED STATES OR A SUBSTITUTE CHECK IN LIEU THEREOF HAD BEEN ISSUED. ACCORDINGLY, OUR CLAIMS DIVISION IN A LETTER DATED FEBRUARY 1, 1971, TO YOU, QUOTED THE PERTINENT PART OF 31 U.S.C. 122 AND ADVISED YOU THAT, SINCE YOUR INITIAL CLAIM WAS NOT RECEIVED IN THIS OFFICE WITHIN 6 YEARS FROM THE DATE OF THE ISSUANCE OF THE CHECKS, YOUR CLAIM IS BARRED BY THE PLAIN TERMS OF THAT PROVISION OF LAW AND CANNOT BE CONSIDERED.

SECTION 122 OF TITLE 31, U.S. CODE, MENTIONED ABOVE, PROVIDES IN PERTINENT PART AS FOLLOWS:

"HEREAFTER ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR WARRANTS APPEARING FROM THE RECORDS OF THE GENERAL ACCOUNTING OFFICE OR THE TREASURY DEPARTMENT TO HAVE BEEN PAID, SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED. *** ."

IN VIEW OF THE STATEMENT IN YOUR LETTER OF NOVEMBER 22, 1969, THAT YOU WERE RETIRED ON JANUARY 1, 1967, AFTER 20 YEARS OF ARMY SERVICE, WE MUST ALSO GIVE EFFECT TO THE PROVISIONS OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, 50 U.S.C. APP. 525, WHICH TOLLS THE RUNNING OF STATUTES OF LIMITATIONS, SUCH AS 31 U.S.C. 122, FOR THE PERIOD A MILITARY MEMBER IS ON ACTIVE DUTY. ACCORDINGLY, 31 U.S.C. 122 IS NOT FOR APPLICATION IN YOUR CASE, SINCE YOUR CLAIM WAS RECEIVED WITHIN 6 YEARS AFTER THE DATE OF YOUR RETIREMENT. HOWEVER, THE FACT THAT YOUR CLAIM IS NOT BARRED BY LAW DOES NOT NECESSARILY IMPLY THAT AUTOMATICALLY THE GOVERNMENT IS OBLIGATED TO TAKE FAVORABLE ACTION THEREON. IN OTHER WORDS, THE MERE SUSPENSION OR TOLLING OF A STATUTE OF LIMITATIONS DOES NOT PERFECT AN OTHERWISE UNSUPPORTED CLAIM.

YOUR CORRESPONDENCE AS WELL AS THE RECORD BEFORE US FAILS TO SHOW THAT SUBJECT CHECKS WERE NOT MAILED TO THE ADDRESS MENTIONED BY YOU. IN THIS REGARD IT MAY BE NOTED THAT THE ABOVE-MENTIONED COPY OF THE PAY ACCOUNT LISTS THE ADDRESS "2452 N. HARDING AVE, CHICAGO, ILL." A FEW LINES ABOVE THE DESCRIPTION OF THE SUBJECT CHECKS. IT MUST BE PRESUMED, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT THE CHECKS WERE IN FACT MAILED TO THAT ADDRESS AND WERE NEGOTIATED IN DUE COURSE.

IN VIEW OF THE FOREGOING THERE IS NO FURTHER ACTION WHICH THIS OFFICE MAY TAKE ON YOUR CLAIM.