B-178320, AUG 9, 1977

B-178320, AUG 9, 1977

1. WHERE THE CORRECTION OF A MILITARY RECORD TO SHOW AN HONORABLE DISCHARGE DID NOT OTHERWISE AFFECT THE COURT-MARTIAL SENTENCE UNDER WHICH DISHONORABLE DISCHARGE WAS ISSUED, THE CORRECTION CREATED NO ENTITLEMENT TO PAYMENT FOR ACCRUED LEAVE AND PAY AND ALLOWANCES FORFEITED PURSUANT TO COURT-MARTIAL ORDER, AND THE STATUTE OF LIMITATIONS (31 U.S.C. 71A (1970)) BARS PAYMENT OF THE CLAIM FILED MORE THAN 10 YEARS AFTER IT ACCRUED. 2. WHILE A CORRECTION IN A MEMBER'S DISCHARGE TO HONORABLE ENTITLED HIM TO MUSTERING OUT PAY, A CLAIM FOR SUCH PAY MAY NOT BE ALLOWED WHERE RECORDS SHOW THAT THE MEMBER WAS PAID THE MAXIMUM AMOUNT OF SUCH PAY.

SECOND LIEUTENANT ALBERT C. HOMCY, AUS:

MR. ALBERT C. HOMCY, A FORMER UNITED STATES ARMY LIEUTENANT, APPEALS FROM AN OCTOBER 24, 1972 SETTLEMENT BY THE CLAIMS DIVISION (FORMERLY THE TRANSPORTATION AND CLAIMS DIVISION) OF THIS OFFICE. THE CLAIMS DIVISION DISALLOWED MR. HOMCY'S CLAIM FOR PAY AND ALLOWANCES FORFEITED PURSUANT TO GENERAL COURT-MARTIAL ORDER WHICH ALSO INCLUDED A DISHONORABLE DISCHARGE, NOTWITHSTANDING CORRECTION OF THE DISHONORABLE DISCHARGE TO AN HONORABLE DISCHARGE.

THE RECORD INDICATES THAT MR. HOMCY WAS TRIED BY A GENERAL COURT MARTIAL ON OCTOBER 19, 1944. HE WAS FOUND GUILTY OF MISBEHAVIOR BEFORE THE ENEMY AND SENTENCED TO BE DISMISSED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR FOR 50 YEARS. THE CONVENING AUTHORITY REDUCED THE CONFINEMENT TO 10 YEARS, AND MR. HOMCY WAS DISHONORABLY DISCHARGED ON DECEMBER 5, 1944. ON JANUARY 7, 1946 AFTER SERVING 14 MONTHS' CONFINEMENT, MR. HOMCY WAS REENLISTED IN THE ARMY AS A PRIVATE. THE ARMY VACATED THE REMAINDER OF HIS SENTENCE, AND HE RECEIVED AN HONORABLE DISCHARGE FROM THIS ENLISTMENT ON AUGUST 24, 1946.

AFTER SEVERAL UNSUCCESSFUL ATTEMPTS AT HAVING HIS DISHONORABLE DISCHARGE OVERTURNED BY THE BOARD FOR CORRECTION OF MILITARY RECORDS, MR. HOMCY SOUGHT A DECLARATORY JUDGMENT IN THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THAT THE COURT-MARTIAL LACKED JURISDICTION AND THAT, AS A RESULT, HIS MILITARY RECORDS SHOULD BE CORRECTED TO SHOW AN HONORABLE DISCHARGE IN 1944.

THE DISTRICT COURT GRANTED MR. HOMCY'S CROSS MOTION FOR SUMMARY JUDGMENT ON THE GROUND THAT THE COURT-MARTIAL WAS SUBJECT TO IMPROPER COMMAND INFLUENCE, AND HELD THAT MR. HOMCY WAS ENTITLED TO HAVE HIS RECORD CORRECTED TO SHOW THAT HIS DISCHARGE FROM THE UNITED STATES ARMY ON DECEMBER 5, 1944, WAS HONORABLE. THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT AFFIRMED. HOMCY V. RESOR, 455 F.2D 1345 (D.C. CIR. 1971). AS A RESULT THE BOARD FOR CORRECTION OF MILITARY RECORDS CORRECTED MR. HOMCY'S RECORDS TO THE EXTENT OF SHOWING THAT MR. HOMCY WAS HONORABLY DISCHARGED ON DECEMBER 5, 1944.

MR. HOMCY THEN SUBMITTED A CLAIM TO THIS OFFICE FOR THE BACK PAY AND ALLOWANCES FORFEITED PURSUANT TO THE COURT-MARTIAL ORDER. OUR CLAIMS DIVISION DENIED THE CLAIM ON OCTOBER 24, 1972, ON THE GROUND THAT THERE WAS NO AUTHORITY FOR PAYMENT, AS MR. HOMCY HAD RECEIVED ALL HE HAD REQUESTED FROM THE DISTRICT COURT. HE HAD NOT SOUGHT A REVERSAL OF THE COURT-MARTIAL CONVICTION, AND THE DISTRICT COURT ORDER MERELY DIRECTED REMOVAL OF THE DISHONORABLE DISCHARGE. MR. HOMCY ATTEMPTED TO REOPEN THE DISTRICT COURT CASE TO OBTAIN A JUDGMENT FOR BACK PAY. THE DISTRICT COURT DENIED HIS MOTION ON OCTOBER 12, 1973.

IN THE UNITED STATES COURT OF CLAIMS, MR. HOMCY BROUGHT AN ACTION CLAIMING BACK PAY, ALLOWANCES AND OTHER BENEFITS SINCE 1944. HE ENTERED A MOTION FOR SUMMARY JUDGMENT CONTENDING THAT DESPITE ANY DELAY IN BRINGING THE ACTION, HE WAS ENTITLED TO MONETARY RELIEF. THE COURT DENIED THE MOTION ON JUNE 16, 1976, AND HELD THAT MR. HOMCY'S CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS, 28 U.S.C. 2501 (1970), APPLICABLE TO ACTIONS BROUGHT IN THAT COURT. HOMCY V. UNITED STATES, CT.CL. NO. 187-74, JUNE 16, 1976.

MR. HOMCY'S CLAIM CONSISTS OF FORFEITED PAY AND ALLOWANCES WHICH HE SAYS HE DID NOT RECEIVE FOR THE PERIOD OF JULY 1944 THROUGH THE DATE OF HIS DISCHARGE, DECEMBER 5, 1944; PAYMENT FOR APPROXIMATELY 60 DAYS OF LEAVE HE INDICATES HE HAD ACCRUED AT THE DATE OF HIS DISCHARGE; AND $300 MUSTERING OUT PAY.

AS THE CLAIMS DIVISION ADVISED HIM PREVIOUSLY, AND AS THE COURT OF CLAIMS ALSO RECOGNIZED, THE CORRECTION OF HIS DISCHARGE, PURSUANT TO THE DISTRICT COURT DECISION, DID NOT ENTITLE HIM TO ANY PAYMENT FOR THE PAY AND ALLOWANCES FORFEITED PURSUANT TO THE COURT-MARTIAL SENTENCE SINCE THAT PART OF THE SENTENCE WAS LEFT UNAFFECTED. THEREFORE, THE PAY AND ALLOWANCES FOR THE PERIOD OF JULY 1944 THROUGH DECEMBER 5, 1944, AND THE ACCRUED LEAVE PAYMENT, WHICH IS ALSO A COMPENSATION FOR ACTIVE SERVICE, REMAIN FORFEITED. SEE 34 COMP.GEN. 95 (1954) AND 52 COMP.GEN. 909 (1973). IN ADDITION, SINCE MR. HOMCY'S ENTITLEMENT TO THOSE AMOUNTS WAS UNAFFECTED BY THE SUBSEQUENT CORRECTION OF HIS DISCHARGE, HIS CLAIM FOR THOSE AMOUNTS IS SUBJECT TO THE TIME LIMITATION OF 31 U.S.C. 71A (1970), WHICH BARRED FROM CONSIDERATION CLAIMS RECEIVED IN THE GENERAL ACCOUNTING OFFICE MORE THAN 10 YEARS FROM THE DATE THEY FIRST ACCRUED. MR. HOMCY'S CLAIM FOR FORFEITED PAY AND ALLOWANCES AND ACCRUED LEAVE WAS FIRST RECEIVED IN THIS OFFICE ON SEPTEMBER 19, 1972, MORE THAN 25 YEARS AFTER ACCRUAL. THEREFORE, CONSIDERATION BY THIS OFFICE OF HIS CLAIM FOR THOSE AMOUNTS IS BARRED BY LAW AS THEY WERE SIMILARLY BARRED FROM CONSIDERATION BY THE COURT OF CLAIMS.

OUR CLAIMS DIVISION, ON MAY 17, 1977, AUTHORIZED PAYMENT TO MR. HOMCY OF AN ADDITIONAL $100 IN MUSTERING OUT PAY. SINCE THE CLAIM FOR MUSTERING OUT PAY BECAME DUE AS A RESULT OF THE CHANGE IN THE CLAIMANT'S DISCHARGE, THAT PAYMENT WAS NOT BARRED BY 31 U.S.C. 71A. HOWEVER, THAT IS THE ONLY PAYMENT WHICH BECAME DUE AS A RESULT OF THE CHANGE IN MR. HOMCY'S DISCHARGE.

IN VIEW OF THE ABOVE, THE ACTION OF OUR CLAIMS DIVISION DISALLOWING THE REMAINDER OF MR. HOMCY'S CLAIM IS SUSTAINED.