B-166747, MAY 5, 1969

B-166747, MAY 5, 1969

TO MR. PEDRO A. BAUTISTA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 17, 1968, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE ARMY OF THE UNITED STATES IN FEBRUARY 1946.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MAY 7, AND SEPTEMBER 17, 1968, IN WHICH YOU WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY THIS OFFICE 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, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, 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 ADJUSTED AND SETTLED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

IN SUPPORT OF YOUR CLAIM, YOU CALL ATTENTION TO PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, IN THE APPARENT BELIEF THAT SUCH LAW AFFECTS YOUR CLAIM FOR MUSTERING-OUT PAY.

THE SECTION OF PUBLIC LAW 89-50 TO WHICH YOU REFER, PROVIDES 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. THIS AMENDMENT WAS ENACTED IN ORDER TO EXTEND THE TIME LIMITATION FOR FILING MUSTERING OUT PAYMENT CLAIMS WITH RESPECT TO A SMALL GROUP OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR REGULAR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY FOR SERVICE DURING THE KOREAN CONFLICT BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE OF JUNE 17, 1959. INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE ON FEBRUARY 6, 1946, WHICH WAS BEFORE THE KOREAN CONFLICT, NEITHER CHAPTER 43 OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89 50, IS FOR APPLICATION IN YOUR CASE.

ANY MUSTERING-OUT PAY 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 FOR MUSTERING-OUT PAY, HOWEVER, 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 MILITARY SERVICE ON FEBRUARY 6, 1946, THAT IS THE DATE YOUR CLAIM FOR MUSTERING-OUT PAY FIRST ACCRUED AND IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM ON OR BEFORE FEBRUARY 6, 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 APRIL 22, 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.