B-172792, MAY 27, 1971

B-172792, MAY 27, 1971

MILITARY PERSONNEL - FURLOUGH PAY - PERIOD OF LIMITATIONS DECISION THAT NO ACTION MAY LEGALLY BE TAKEN ON THE CLAIM OF FRANK J. TUFARIELLO FOR FURLOUGH PAY DUE INCIDENT TO SERVICE IN THE U.S. ARMY FROM JULY 13, 1944 THROUGH AUG. 15, 1946. UNDER THE TERMS OF THE ARMED FORCES LEAVE ACT OF 1946 CLAIMANT WAS REQUIRED TO SUBMIT HIS CLAIM TO THE SECRETARY OF THE ARMY NOT LATER THAN JUNE 30, 1951, AND A LETTER TO THE FINANCE OFFICER, U.S. ARMY, NEW YORK, WILL NOT SUFFICE. UNDER SECTION 4(B) OF THE ACT, ALL DETERMINATIONS BY THE SECRETARY CONCERNED ARE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OFFICER OF THE U.S. THEREFORE, THERE IS NO ACTION THAT THE COMP. GEN. MAY LEGALLY TAKE IN THE MATTER.

TO STATE OF NEW YORK:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 29, 1971, CONCERNING THE CLAIM OF FRANK J. TUFARIELLO, 80 FITCHBURG STREET, BAYSHORE, NEW YORK 11706, FOR FURLOUGH PAY WHICH HE FEELS WAS DUE HIM AND NEVER RECEIVED DURING THE TIME HE WAS IN THE UNITED STATES ARMY FROM JULY 13, 1944, THROUGH AUGUST 15, 1946, OR AT THE TIME OF HIS DISCHARGE.

MR. TUFARIELLO, BY LETTER DATED DECEMBER 22, 1970, MADE INQUIRY CONCERNING "FURLOUGH PAY" TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA. HE WAS ADVISED THAT UNDER THE TERMS OF THE ARMED FORCES LEAVE ACT OF 1946, CLAIMS FOR SETTLEMENT OF UNUSED LEAVE AS OF DATE OF DISCHARGE, IF DISCHARGE WAS BEFORE SEPTEMBER 1, 1946, MUST HAVE BEEN FILED BEFORE JUNE 30, 1951, AND SINCE HIS APPLICATION HAD BEEN RECEIVED AFTER THAT DATE, FAVORABLE CONSIDERATION COULD BE GIVEN ONLY IF ADEQUATE PROOF COULD BE FURNISHED THAT HE COMMUNICATED WITH OTHER GOVERNMENT OFFICIALS NOT LATER THAN THAT DATE REGARDING ENTITLEMENT TO UNUSED LEAVE. FURNISHED A COPY OF A LETTER DATED DECEMBER 6, 1946, TO THE FINANCE OFFICER, U.S. ARMY, 2 LAFEYETTE STREET, NEW YORK 7, NEW YORK, IN WHICH HE MADE INQUIRY RELATIVE TO FURLOUGH PAY. THE FINANCE OFFICE REFERRED THE MATTER TO THIS OFFICE AND IT WAS RECEIVED HERE ON FEBRUARY 16, 1971.

BY LETTER DATED MARCH 10, 1970, OUR CLAIMS DIVISION ADVISED MR. TUFARIELLO THAT SECTION 5 OF THE ARMED FORCES LEAVE ACT OF 1946 REQUIRED THAT APPLICATIONS FOR COMPENSATION FOR UNUSED LEAVE (ACCRUED LEAVE) FOR MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO SEPTEMBER 1, 1946, BE MADE TO THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED NOT LATER THAN JUNE 30, 1951. HE WAS FURTHER ADVISED THAT WHILE THE RECORD SHOWS THAT HE WROTE TO THE FINANCE OFFICER IN NEW YORK ON DECEMBER 6, 1946, CONCERNING FURLOUGH DURING HIS ARMY SERVICE, IT DOES NOT SHOW THAT HE ACTUALLY FILED CLAIM FOR COMPENSATION FOR ACCRUED LEAVE WITH THE SECRETARY OF THE ARMY ON OR BEFORE JUNE 30, 1951; THAT ANY CLAIM NOW FILED IS BARRED BY THE EXPRESS PROVISIONS OF THE ACT; AND THAT WE ARE NOT AUTHORIZED TO TAKE ANY ACTION ON IT.

IT IS INDICATED IN YOUR LETTER THAT MR. TUFARIELLO BELIEVES CONSIDERATION SHOULD BE GIVEN HIS CLAIM BECAUSE HE DID NOT RECEIVE ANY REPLY TO HIS LETTER OF DECEMBER 6, 1946, AND WAS NOT ADVISED THAT HE HAD TO FILE CLAIM AND, THEREFORE, HIS LETTER WAS IN EFFECT A CLAIM FOR ACCRUED LEAVE. YOU ASK WHETHER IT CAN BE REGARDED AT THE PRESENT TIME AS CONSTITUTING A CLAIM FOR HIS UNPAID FURLOUGH PAY.

SECTION 5(A) OF THE ARMED FORCES LEAVE ACT OF 1946 APPROVED AUGUST 9, 1946, 60 STAT. 965, AS AMENDED, 37 U.S.C. 34 (1958 ED.) PROVIDES AS FOLLOWS:

"(A) LEAVE TO WHICH ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO SEPTEMBER 1, 1946, AND FORMER ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO AUGUST 9, 1946, ARE ENTITLED UNDER THE PROVISIONS OF SECTION 31A OF THIS TITLE SHALL, TO THE EXTENT NOT TAKEN, BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN SECTION 35 OF THIS TITLE AND IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN JUNE 30, 1951, OR, IN THE CASE OF ANY SUCH MEMBER OR FORMER MEMBER WHOSE RECORD IS CORRECTED AFTER AUGUST 9, 1946, TO SHOW DISCHARGE UNDER HONORABLE CONDITIONS, NOT LATER THAN JUNE 30, 1951, OR WITHIN ONE YEAR AFTER THE DATE ON WHICH SUCH RECORD IS CORRECTED, WHICHEVER IS LATER."

PRIOR TO THE PASSAGE OF THE ARMED FORCES LEAVE ACT OF 1946, NO PROVISION OF LAW EXISTED UNDER WHICH ENLISTED MEMBERS ACCRUED LEAVE OR MIGHT BE COMPENSATED FOR UNUSED LEAVE UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY. THEY WERE GRANTED FURLOUGHS IN ACCORDANCE WITH THE REGULATIONS THEN IN EFFECT. THE 1946 ACT GRANTED EQUAL TREATMENT TO OFFICERS AND ENLISTED MEMBERS OF THE ARMED FORCES IN THE MATTER OF LEAVE AT THE RATE OF 2-1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE. ENLISTED MEMBERS OR FORMER ENLISTED MEMBERS WERE CONSIDERED UNDER THE ACT TO BE ENTITLED TO SUCH LEAVE FROM AND AFTER SEPTEMBER 8, 1939, AND THE ACT PROVIDED THAT IN THE CASE OF ENLISTED MEMBERS DISCHARGED PRIOR TO SEPTEMBER 1, 1946, LEAVE TO WHICH THEY WERE ENTITLED UNDER THE PROVISIONS OF THE ACT WOULD BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER THERE PROVIDED AND IF APPLICATION WAS MADE TO THE SECRETARY NOT LATER THAN SEPTEMBER 1, 1947, LATER EXTENDED TO JUNE 30, 1951, BY THE ACT OF APRIL 26, 1950, CH. 105, 64 STAT. 88.

AT THE TIME OF THE ENACTMENT OF THE 1946 LEAVE ACT WIDE PUBLICITY WITH RESPECT TO ITS PROVISIONS WAS GIVEN IN THE NEWSPAPERS AND IN THE MAGAZINES AND OTHER PUBLICATIONS FOR MEMBERS AND FORMER MEMBERS OF THE ARMED FORCES. IT SEEMS AT LEAST UNUSUAL THAT IF MR. TUFARIELLO'S LETTER OF DECEMBER 6, 1946, ACTUALLY HAD REFERENCE TO THE UNUSED LEAVE TO WHICH HE WAS ENTITLED PURSUANT TO THE 1946 ACT, THAT HE WOULD WAIT 24 YEARS BEFORE INQUIRING AS TO WHY HE HAD NOT RECEIVED PAYMENT IN BONDS AND CASH AS PROVIDED BY THE ACT. THE DEPARTMENT OF THE ARMY APPARENTLY DID NOT REGARD SUCH LETTER AS A CLAIM FOR LEAVE UNDER THE 1946 ACT.

SECTION 4(B) OF THE 1946 ACT, 37 U.S.C. 33(E) (1958 ED.), PROVIDED, DURING THE TIME THE LAW WAS IN EFFECT, THAT DETERMINATION OF THE NUMBER OF CALENDAR DAYS OF LEAVE TO WHICH A MEMBER OR FORMER MEMBER WAS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION TO BE COUNTED OR CHARGED AGAINST SUCH LEAVE WOULD BE MADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE RESPECTIVE SECRETARY AND ALL DETERMINATIONS OF THE SECRETARY CONCERNED UNDER THAT SECTION, WERE FINAL AND CONCLUSIVE AND WERE NOT SUBJECT TO REVIEW BY ANY COURT OR BY ANY OFFICER OF THE UNITED STATES. IN VIEW THEREOF, WE MAY NOT REVIEW THE MATTER OF MR. TUFARIELLO'S LEAVE STATUS DURING THE PERIOD IN QUESTION.

ACCORDINGLY, THERE IS NO ACTION WE LEGALLY MAY TAKE IN THE MATTER.