B-167397, JUL. 22, 1969

B-167397, JUL. 22, 1969

MILITARY - MUSTERING-OUT PAY - STALE CLAIM DECISION TO CLAIMANT SUSTAINING DISALLOWANCE OF CLAIM FOR MUSTERING OUT PAY INCIDENT TO DISCHARGE FROM USAFFE IN MARCH, 1946 IS BARRED UNDER 31 U.S.C. 71A.

TO MR. MAXIMO A. RABUYO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 28, 1969, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE USAFFE IN MARCH, 1946.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION, DATED JANUARY 24, 1969, AND APRIL 10, 1969, IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT PROVIDES 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 FOR MUSTERING-OUT PAY, YOU CONTEND THAT "THE PROVISIONS OF ACT NO. 311-323RD, PROVIDES FOR THE PAYMENT OF MUSTERING OUT PAY- AS AMENDMENT OF THE ACT OF OCTOBER 9, 1940," AND THAT THAT AMENDMENT WAS APPROVED ON SEPTEMBER 30, 1965.

NO PUBLIC LAW OF THE UNITED STATES RELATING TO MUSTERING-OUT PAY WAS ENACTED OR APPROVED ON SEPTEMBER 30, 1965. PRESUMABLY, YOU HAVE REFERENCE TO PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, WHICH EXTENDED THE TIME FOR FILING CERTAIN CLAIMS FOR MUSTERING-OUT PAY. THAT ACT READS 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 WAS AN AMENDMENT TO CHAPTER 43 (SECTIONS 2101-2105) OF TITLE 38, U.S. CODE, WHICH PROVIDED FOR MUSTERING-OUT PAYMENTS TO THOSE PERSONS WHO SERVED ON ACTIVE DUTY DURING THE PERIOD OF 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 SERVING DURING THE KOREAN CONFLICT BY REASON OF THEIR FAILURE TO MAKE APPLICATION PRIOR TO THE STATUTORY DEADLINE OF JULY 17, 1959. INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE ON MARCH 26, 1946, WHICH WAS PRIOR TO THE KOREAN CONFLICT, NEITHER CHAPTER 43 OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89-50 HAS ANY 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.), SECTION 2 (A) (1) OF WHICH PROVIDED FOR A MAXIMUM PAYMENT OF $300 TO PERSONS WHO SERVED 60 DAYS OR MORE AND SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. HOWEVER, IF YOU WERE ENTITLED TO MUSTERING-OUT PAY UNDER THAT ACT, CLAIM THEREFOR, LIKE OTHER CLAIMS FOR MUSTERING-OUT PAY, WAS SUBJECT TO THE TIME LIMITATION IMPOSED BY THE 1940 ACT, WHICH BARS CONSIDERATION OF EVERY CLAIM NOT RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS OF THE DATE SUCH CLAIM FIRST ACCRUED.

YOU STATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON MARCH 26, 1946. SINCE YOUR CLAIM, IF ANY, ACCRUED ON THAT DATE, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM ON OR BEFORE MARCH 26, 1956, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED HERE ON OCTOBER 7, 1968, MORE THAN 22 YEARS AFTER THE DATE OF YOUR DISCHARGE.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS PROHIBITED BY THE 1940 ACT, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.