B-152789, DEC. 3, 1963

B-152789, DEC. 3, 1963

TO MR. CAMILO V. GUTIERREZ:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1963, AND THE LETTER OF SEPTEMBER 24, 1963, FROM YOUR ATTORNEY, MR. JACK S. MAY, 6875 NEW HAMPSHIRE AVENUE, TAKOMA PARK, MARYLAND, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR INCREASED BASIC PAY AS AN ENLISTED MEMBER OF THE UNITED STATES NAVY BASED ON CREDIT FOR YOUR SERVICE IN THE PHILIPPINE CONSTABULARY, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF SEPTEMBER 12, 1963.

THE RECORD BEFORE THIS OFFICE INDICATES THAT YOU ENLISTED IN THE UNITED STATES NAVY ON OCTOBER 14, 1953, AND HAVE SERVED THEREIN CONTINUOUSLY SINCE THAT DATE. INCLUDED IN OUR FILE IS A COPY OF CERTIFICATE DATED MAY 6, 1963, FROM GENERAL HEADQUARTERS, ARMED FORCES OF THE PHILIPPINES, CAMP MURPHY, QUEZON CITY, SIGNED BY THE ASSISTANT ADJUTANT GENERAL, WHICH STATES THAT YOU ENLISTED IN THE REGULAR FORCE, PHILIPPINE CONSTABULARY, ON AUGUST 5, 1948, AND WERE HONORABLY DISCHARGED FROM THE SERVICE EFFECTIVE MARCH 31, 1951. YOU ALSO CLAIM THAT YOU WERE AN ENLISTED MEMBER OF THE PHILIPPINE CONSTABULARY FROM SEPTEMBER 1, 1945, TO AUGUST 4, 1948. ALTHOUGH THE CERTIFICATE OF THE ASSISTANT ADJUTANT GENERAL STATES THAT YOU WERE PROCESSED ON SEPTEMBER 1, 1945, AND WERE HONORABLY DISCHARGED FOR THE PURPOSE OF ENLISTMENT IN THE REGULAR FORCE, PHILIPPINE CONSTABULARY, IT DOES NOT STATE THAT YOU ACTUALLY ENLISTED IN THE PHILIPPINE CONSTABULARY AT ANY TIME PRIOR TO AUGUST 5, 1948. FURTHERMORE, STATEMENTS CONTAINED IN YOUR LETTER OF MARCH 17, 1961, RELATIVE TO YOUR GUERRILLA SERVICE, INDICATE THAT YOU CONTINUED TO SERVE IN YOUR GUERRILLA UNIT AT LEAST UNTIL JANUARY 10, 1946. IN VIEW OF THE CONFLICTING EVIDENCE, THEREFORE, IT IS NOT ESTABLISHED THAT YOU WERE A MEMBER OF THE PHILIPPINE CONSTABULARY AT ANY TIME BEFORE AUGUST 5, 1948.

THE ACT OF MAY 23, 1928, CH. 716, 45 STAT. 720, FIRST AUTHORIZED OFFICERS OF THE REGULAR ARMY TO BE CREDITED FOR LONGEVITY PURPOSES WITH PRIOR COMMISSIONED SERVICE IN THE PHILIPPINE CONSTABULARY. SUCH CREDIT AUTHORIZATION WAS EXTENDED BY LATER LEGISLATION TO INCLUDE ENLISTED MEMBERS AND ENLISTED SERVICE, AND NOW APPEARS IN 37 U.S.C. 205. WHILE THE PHILIPPINE CONSTABULARY WAS NEVER A PART OF THE ARMED FORCES OF THE UNITED STATES, LONGEVITY CREDIT FOR CONSTABULARY SERVICE WAS FIRST AUTHORIZED BY CONGRESS AT A TIME WHEN THE PHILIPPINE ISLANDS WERE A TERRITORIAL POSSESSION OF THE UNITED STATES AND THEREFORE SUBJECT TO CONTROL BY THE UNITED STATES. WITH THE GRANTING OF INDEPENDENCE ON JULY 4, 1946, THE REPUBLIC OF THE PHILIPPINES WAS CREATED AS A COMPLETELY INDEPENDENT NATION, AND SERVICE THEREAFTER IN ANY UNIT ORGANIZED UNDER THE LAWS OF, AND RESPONSIBLE TO, THAT NATION WAS NOT SUBJECT TO ANY CONTROL BY THE UNITED STATES.

INCLUSION IN THE CURRENT PAY LEGISLATION OF AUTHORITY TO CREDIT PHILIPPINE CONSTABULARY SERVICE FOR LONGEVITY OR BASIC PAY PURPOSES INSURES CONTINUATION OF SUCH CREDIT TO THOSE WHO PREVIOUSLY HAD EARNED IT. HOWEVER, THERE IS NO INDICATION THAT CONGRESS INTENDED TO AUTHORIZE SERVICE CREDITS FOR MEMBERS OF OUR ARMED FORCES BASED ON SERVICE PREVIOUSLY PERFORMED BY THEM FOR THE GOVERNMENT OF AN ENTIRELY SEPARATE AND INDEPENDENT NATION.