BNUMBER:  B-262050
DATE:  November 14, 1995
TITLE:  [Letter]

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B-262050

November 14, 1995

The Honorable Kay Bailey Hutchison
United States Senator
961 Federal Building 
300 E. 8th Street
Austin, Texas  78701

Dear Senator Hutchison:

This is in further response to your letter dated June 26, 1995, on 
behalf of Mr. Raymond W. Wilebski who claims various amounts incident 
to his discharge from the Air Force in 1954 and the correction of his 
records in 1993 by the Air Force Board for the Correction of Military 
Records (AFBCMR).

Mr. Wilebski was given an undesirable discharge on January 18, 1954, 
from the Air Force.  On December 8, 1993, upon application by Mr. 
Wilebski, the AFBCMR recommended that Mr. Wilebski's military records 
be corrected to show that his discharge was honorable, which 
recommendation was approved by authority of the Secretary of the Air 
Force.  Mr. Wilebski made claim for arrears of pay, mustering-out pay 
(MOP), travel allowance, leave and punitive damages.  The Defense 
Finance and Accounting Service, Denver Center, paid him the $22.80 
travel allowance due for travel from his place of discharge to his 
place of enlistment, which had been withheld in 1954 because of his 
undesirable discharge.  However, they disallowed the additional items 
Mr. Wilebski claimed, as did our Claims Group by settlement dated 
September 8, 1994.

The change in Mr. Wilebski's discharge was made under authority 
granted to the Secretary of the Air Force by 10 U.S.C.  sec.  1552 to 
change a military record to correct an error or remove an injustice.  
This statute also authorizes the payment of a claim for loss of pay, 
allowances and other emoluments found to be due as a result of the 
correction.

Our Office has jurisdiction to resolve claims for such military pay 
and other emoluments based on changes in a former service member's 
military records under 10 U.S.C.  sec.  1552.  We have held that in cases 
such as Mr. Wilebski's, where the military record is amended solely to 
show upgrading in the character of discharge to honorable, former 
service members are entitled only to the additional amounts they would 
have received had the initial discharge been under honorable 
conditions.  Willie J. Shelton, B-217631, June 12, 1985.  If the 
individual's entitlement to an amount was not affected by the initial 
nature of that person's discharge, then the amount did not accrue at 
the time of the correction of the records, but during the member's 
service or at the time of discharge.  See B-217631, supra.

Claims against the government are subject to the 6-year statute of 
limitations and a claim is barred unless filed with our Office within 
6 years of when the claim accrued.  31 U.S.C.  sec.  3702(b).  If a claim 
accrued on or after June 15, 1983, it is barred unless it was received 
in either our Office or the agency out of whose activities it arose 
within 6 years of accrual.  4 C.F.R.  sec.  31.5.

Mr. Wilebski's claim for arrears of pay is barred by 31 U.S.C.  sec.  
3702(b) because his entitlement to any pay that was due him for his 
Air Force service was not affected by the nature of the discharge, and 
therefore the claim accrued at the date of his discharge in 1954, and 
he did not make claim until 1994.

Regarding Mr. Wilebski's claim for mustering-out pay (MOP), 38 U.S.C.  sec.  
1011-1016 (1952) provided for MOP for Korean Conflict era veterans 
contingent upon an honorable discharge, but limited each member to no 
more than one payment for Korean Conflict service.  The change in the 
nature of Mr. Wilebski's discharge would restore his eligibility for 
MOP had he otherwise qualified for it upon discharge from the Air 
Force.  However, the record before our Office shows that he was 
eligible for MOP based upon his prior Naval Reserve service from which 
he was discharged in April 1953, several months prior to his entry 
into the Air Force in September 1953.[1]  The statutes do not provide 
a second entitlement, and thus Mr. Wilebski would not have been 
entitled to MOP based upon his Air Force service even if his Air Force 
discharge in 1954 had been honorable.  See B-217631, supra.     

As to the claim for 8 days' accrued leave, Mr. Wilebski's original 
discharge states that the member "forfeits all acc lv time" but does 
not show the amount of leave, if any, he then had to his credit which 
was forfeited.  While the upgrade of his discharge would entitle him 
to payment for leave forfeited because of the dishonorable discharge, 
his claim must be denied because the records which would show the 
amount of leave which was forfeited have been destroyed and there 
exists no evidence to substantiate the claim.  Where long periods of 
time have passed and records which may prove or disprove the validity 
of a claim are unavailable, we have no alternative but to disallow the 
claim.  Lilborn C. Chisam, B-203752, Mar. 2, 1982.

Finally, neither 10 U.S.C.  sec.  1552, nor any other statute we are aware 
of, provides authority for the government to pay Mr. Wilebski's claim 
for punitive damages pursuant to the correction of his records. 

Copies of the Comptroller General's decisions referred to above are 
enclosed.  We trust this answers your inquiry on behalf of Mr. 
Wilebski.

The documents forwarded with your letter are being returned herewith, 
as you requested.

Sincerely yours,

/s/Seymour Efros
for Robert P. Murphy
General Counsel

Enclosures
B-262050

DIGEST

Senator who inquired on behalf of former Air Force member whose 1954 
undesirable discharge was upgraded to honorable by the correction 
board in 1993, is advised that claimant is entitled only to additional 
amounts that he would have received if initial discharge had been 
honorable.  He is not entitled to arrears of pay which would have 
accrued upon discharge and is now barred by statute of limitations; 
accrued leave for which records no longer exist; mustering-out pay for 
which he was entitled to one payment only and records indicate he 
qualified under an earlier Navy discharge; and punitive damages for 
which no statutory authority exists.

1. Mr. Wilebski's DD form 214 (Report of Separation) prepared by the 
Navy at the time of his discharge from that service in April 1953, 
states "MOP $300 Paid $100 MOP 4/20/53."  Under 38 U.S.C.  sec.  1012 
(1952), the maximum MOP entitlement was $300, with an initial payment 
of $100 to be paid at discharge and an additional $100 payment to be 
made in each of the next 2 months.  While the record before us does 
not show whether the Navy paid the two succeeding payments, we assume 
that in the normal course of events they would have been paid.  In any 
event, a claim for those payments would now be barred by 31 U.S.C.  sec.  
3702(b).