B-162697, NOV. 29, 1967

B-162697, NOV. 29, 1967

ARMED SERVICES - PAY - KOREAN SERVICE DECISION CONCERNING CLAIM OF FORMER ARMY MEMBER FOR COMBAT PAY PRIOR TO RELEASE FROM ACTIVE DUTY ON OCT. 19, 1952. MERE MEMBERSHIP IN READY RESERVE IS NOT ENOUGH TO ACHIEVE AN "ACTIVE DUTY STATUS" TO BE CONSIDERED MILITARY SERVICE TO STOP THE RUNNING OF THE BARRING ACT OF OCTOBER 9, 1940, AND, THEREFORE, SINCE CLAIM WAS NOT RECEIVED WITHIN 10 YEAR STATUTE OF LIMITATIONS IT MAY NOT BE CONSIDERED.

TO MR. ROBERT L. MAKL:

REFERENCE IS MADE TO YOUR INDORSEMENT ON OUR LETTER OF NOVEMBER 9, 1967, B-162697, TO YOU, IN WHICH WE AGAIN ENDEAVORED TO EXPLAIN IN DETAIL WHY YOUR CLAIM FOR COMBAT PAY INCIDENT TO YOUR SERVICE IN KOREA PRIOR TO YOUR RELEASE FROM ACTIVE DUTY ON OCTOBER 19, 1952, MAY NOT BE CONSIDERED BY THIS OFFICE.

CONCERNING YOUR STATEMENT THAT " - ACTIVE DUTY--FULL-TIME DUTY, - IS ALSO DEFINED AS APPLICABLE TO ANY UNITED STATES MILITARY PERSONNEL READY AND WILLING TO SERVE UPON GIVEN NOTICE SUCH AS THE READY RESERVE," IT IS NOTED THAT YOU FURNISHED NO INFORMATION AS TO THE SOURCE OF SUCH DEFINITION. SINCE IT IS CONTRARY TO THE DEFINITION CONTAINED IN APPLICABLE PROVISIONS OF LAW, IT HAS NO BEARING ON YOUR CLAIM. MERE MEMBERSHIP IN THE READY RESERVE COUPLED WITH WILLINGNESS TO SERVE IS NOT "MILITARY SERVICE" WITHIN THE MEANING OF SECTION 101 (1) OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF1940, APPROVED OCTOBER 17, 1940, CHAPTER 888, 54 STAT. 1179, AS AMENDED, 50 U.S.C. APP. 511 (1), SUCH AS WOULD STOP THE RUNNING OF THE BARRING ACT OF OCTOBER 9, 1940, CHAPTER 788, 54 STAT. 1061, 31 U.S.C. 71A, 237. WHILE A MEMBER OF THE READY RESERVE HAS AN ,ACTIVE STATUS," 10 U.S.C. 267, HE CANNOT ACHIEVE AN "ACTIVE DUTY STATUS" UNTIL HE ENTERS ON FULL TIME ACTIVE DUTY IN THE MILITARY SERVICE. SINCE CONSIDERATION OF YOUR CLAIM IS PROHIBITED BY LAW, THERE IS NO ACTION WE LEGALLY MAY TAKE ON SUCH CLAIM.

ACCORDINGLY, FURTHER CORRESPONDENCE CONCERNING THIS SAME SUBJECT MATTER CAN SERVE NO USEFUL PURPOSE.