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B-163950, MAY 2, 1968

B-163950 May 02, 1968
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PHILIPPINE DEPARTMENT: WE HAVE. THAT CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 22. HE WAS ADVISED THAT THE ACT OF OCTOBER 9. WAS APPLICABLE TO HIS CLAIM. HE WAS ALSO ADVISED THAT SUBSISTENCE ALLOWANCE WAS NOT INCLUDED IN THE AMOUNTS PAID TO HIM UNDER THE PROVISIONS OF THE MISSING PERSONS ACT. OUR CLAIMS DIVISION AGAIN CALLED HIS ATTENTION TO THE 1940 ACT AND ADVISED HIM THAT THE GENERAL ACCOUNTING OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THAT ACT AND WAS WITHOUT AUTHORITY TO MAKE ANY EXCEPTION TO ITS PROVISIONS. SALINDO'S MILITARY SERVICE MUST HAVE ACCRUED PRIOR TO JUNE 30. THE RECORD INDICATES THAT TWO PAYMENTS HAVE BEEN MADE TO MR. CLAIMS FOR AMOUNTS BELIEVED TO BE DUE UNDER THAT ACT ARE FOR DETERMINATION BY THE HEAD OF A DEPARTMENT CONCERNED.

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B-163950, MAY 2, 1968

TO DISABLED AMERICAN VETERANS, PHILIPPINE DEPARTMENT:

WE HAVE, BY REFERENCE FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOUR LETTER DATED JANUARY 3, 1968, REQUESTING THAT THE MILITARY RECORDS OF MR. FILOMENO SALINDO BE REVIEWED TO DETERMINE HIS ENTITLEMENT TO SUBSISTENCE AND QUARTERS ALLOWANCE UNDER THE PROVISIONS OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 363.

ON NOVEMBER 25, 1958, MR. SALINDO REQUESTED PAYMENT OF A SUBSISTENCE ALLOWANCE (SEPARATE RATIONS) OF 70 CENTS A DAY "DURING THE PERIOD 1942 AND 1945, INCLUSIVE.' THAT CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 22, 1958. BY LETTER OF OUR CLAIMS DIVISION DATED MARCH 2, 1959, HE WAS ADVISED THAT THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH PRECLUDES CONSIDERATION OF ANY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED, WAS APPLICABLE TO HIS CLAIM. HE WAS ALSO ADVISED THAT SUBSISTENCE ALLOWANCE WAS NOT INCLUDED IN THE AMOUNTS PAID TO HIM UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, FOR THE REASON THAT HE HAD NOT BEEN PROPERLY AUTHORIZED BY COMPETENT ORDERS TO SUBSIST SEPARATELY AND APART FROM HIS ASSIGNED ORGANIZATION.

ON MAY 3, 1959, MR. SALINDO REQUESTED RECONSIDERATION OF HIS CLAIM AND BY LETTER OF JUNE 18, 1959, OUR CLAIMS DIVISION AGAIN CALLED HIS ATTENTION TO THE 1940 ACT AND ADVISED HIM THAT THE GENERAL ACCOUNTING OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THAT ACT AND WAS WITHOUT AUTHORITY TO MAKE ANY EXCEPTION TO ITS PROVISIONS. THE ACT OF OCTOBER 9, 1940, CLEARLY PROHIBITS THE CONSIDERATION BY THIS OFFICE OF ANY CLAIM NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. ANY CLAIM COGNIZABLE BY THIS OFFICE ARISING OUT OF MR. SALINDO'S MILITARY SERVICE MUST HAVE ACCRUED PRIOR TO JUNE 30, 1946, DATE OF HIS DISCHARGE.

THE RECORD INDICATES THAT TWO PAYMENTS HAVE BEEN MADE TO MR. SALINDO UNDER THE MISSING PERSONS ACT, AS AMENDED, ONE IN 1946 AND THE OTHER IN 1958. CLAIMS FOR AMOUNTS BELIEVED TO BE DUE UNDER THAT ACT ARE FOR DETERMINATION BY THE HEAD OF A DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, AND DETERMINATIONS SO MADE ARE FINAL AND CONCLUSIVE. SEE FERRER V UNITED STATES, 132 CT. CL. 422 (1955); LOGRONIO V UNITED STATES, 132 CT. CL. 596 (1955), AND MORENO V UNITED STATES, 118 CT. CL. 30 (1951).

IT APPEARS, HOWEVER, THAT NO AMOUNT COULD HAVE ACCRUED TO MR. SALINDO AS MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE IN ANY EVENT SINCE SUCH ALLOWANCES WERE PAYABLE UNDER EXECUTIVE ORDER NO. 9206, JULY 27, 1942, ONLY TO ENLISTED MEN IN SITUATIONS "WHERE QUARTERS AND RATIONS IN KIND ARE NOT FURNISHED.' UNDER THE LONG ESTABLISHED RULE IN EFFECT AT THAT TIME, PAYMENT OF SUCH ALLOWANCES WAS NOT AUTHORIZED IN THE ABSENCE OF A CONTEMPORANEOUSLY ISSUED ORDER DIRECTING THE PAYMENT THEREOF. SEE 8 COMP. GEN. 82 AND DECISION OF MAY 29, 1947, B-54296. IT APPEARS EXTREMELY UNLIKELY THAT SUCH AN ORDER COULD HAVE BEEN ISSUED AUTHORIZING PAYMENT OF SUCH ALLOWANCES TO MR. SALINDO, SINCE YOU STATE THAT HE WAS ENGAGED IN "BATTLE FIELD FIGHTING" AT THE COMMENCEMENT OF THE PERIOD COVERING HIS CLAIM. IN VIEW OF THOSE INDICATIONS, IT IS ASSUMED (AS YOU INFER) THAT HE WAS BEING FURNISHED RATIONS AND QUARTERS IN KIND TO THE EXTENT THAT EXISTING CONDITIONS THEN PERMITTED.

IN THE CIRCUMSTANCES DISCLOSED, WE FIND NO BASIS FOR THE PAYMENT OF MR. SALINDO'S CLAIM.

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