B-164787, AUG. 5, 1968

B-164787, AUG. 5, 1968

TO MR. MIGUEL B. BALLOALLO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 12, 1968, CONCERNING YOUR CLAIM AS NEXT OF KIN FOR AMOUNTS ALLEGED TO BE DUE ESMAEL B. BALLOALLO AND MANUEL BALLOALLO, LATE PHILIPPINE SCOUTS, AT THE DATES OF THEIR DEATHS, ON JUNE 15, 1942, AND MAY 26, 1942, RESPECTIVELY.

YOUR CLAIM FOR QUARTERS AND RATION ALLOWANCES AND MUSTERING-OUT PAY IN THE CASES OF ESMAEL B. BALLOALLO AND MANUEL BALLOALLO, FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 21, 1967, WAS RETURNED TO YOU BY LETTER OF OUR CLAIMS DIVISION DATED SEPTEMBER 14, 1967, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH FOREVER BARS ANY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

BY LETTER DATED APRIL 23, 1968, YOU WERE ADVISED THAT THE FACT THAT YOU MAY HAVE FILED A CLAIM WITH ANOTHER GOVERNMENT AGENCY IS IMMATERIAL SINCE THE STATUTE REQUIRES THAT CLAIMS BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE 10-YEAR PERIOD AND NOT IN SOME OTHER AGENCY OF THE GOVERNMENT. YOU WERE ADVISED ALSO THAT THE GENERAL ACCOUNTING OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THE ACT OF OCTOBER 9, 1940, AND THEREFORE WE MAY MAKE NO EXCEPTIONS TO ITS PROVISIONS. IT WAS FURTHER POINTED OUT TO YOU THAT THE LAW DOES NOT PROVIDE FOR PAYMENT OF MUSTERING- OUT PAY WHERE SEPARATION FROM THE MILITARY SERVICE IS BY DEATH.

THE PRIMARY PURPOSE OF THE ACT OF OCTOBER 9, 1940, WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY OF RETAINING AND GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. NO MATTER HOW MERITORIOUS A CLAIM MAY BE, THIS OFFICE MAY MAKE NO EXCEPTIONS TO THE STATUTE NOR MAY ANY EXTENSION OF TIME BE GRANTED WITHIN WHICH CLAIMS MAY BE FILED IN THIS OFFICE. THE ACT PROHIBITS THE CONSIDERATION BY OUR OFFICE OF ANY CLAIM NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. SINCE YOUR RIGHT, IF ANY, TO THE PAYMENT YOU CLAIM ACCRUED NOT LATER THAN THE DATES OF DEATH OF ESMAEL B. AND MANUEL BALLOALLO AND SINCE YOUR CLAIM WAS NOT RECEIVED UNTIL AFTER 10 YEARS FOLLOWING THOSE DATES, CONSIDERATION THEREOF IS FORBIDDEN BY LAW.

THE RECORD DISCLOSES THAT PAY DUE ESMAEL B. BALLOALLO AT DATE OF DEATH UNDER THE MISSING PERSONS ACT OF 1942, AS AMENDED, IN THE AMOUNT OF $464.70 WAS PAID TO THE ADJUTANT GENERAL OF THE PHILIPPINE ARMY AS ADMINISTRATOR OF THE ESTATE PURSUANT TO SETTLEMENT NO. 1705250, DATED DECEMBER 7, 1948, AND PAY DUE MANUEL BALLOALLO AT DATE OF DEATH UNDER THE SAME ACT IN THE AMOUNT OF $616.34 WAS PAID TO THE JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY AS ADMINISTRATOR OF THE ESTATE PURSUANT TO SETTLEMENT NO. 1704297, DATED DECEMBER 2, 1947.

IT APPEARS THAT NO AMOUNT COULD HAVE ACCRUED TO THE FORMER PHILIPPINE SCOUTS 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 A STATUS "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. IT APPEARS EXTREMELY UNLIKELY THAT SUCH AN ORDER COULD HAVE BEEN ISSUED AUTHORIZING PAYMENT OF SUCH ALLOWANCES TO THE DECEDENTS SINCE THE RECORD SHOWS THAT THEY WERE IN A BELEAGUERED STATUS FROM DECEMBER 8, 1941, UNTIL THEY ENTERED A PRISONER-OF-WAR STATUS WHICH CONTINUED UNTIL THE DATES OF THEIR DEATHS. IN SUCH CIRCUMSTANCES, IT IS ASSUMED THAT THEY WERE BEING FURNISHED RATIONS AND QUARTERS IN KIND TO THE EXTENT THAT EXISTING CONDITIONS THEN PERMITTED.

THE RIGHT TO MUSTERING-OUT PAY OF MEMBERS OF THE ARMED FORCES ENGAGED IN ACTIVE SERVICE IN WORLD WAR II WAS GOVERNED BY THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, CH. 9, 58 STAT. 8, AS AMENDED BY THE ACT OF MAY 19, 1948, CH. 312, 62 STAT. 241, 38 U.S.C. 691C (1946 ED., SUPP II). THE PAYMENTS PROVIDED BY THAT ACT WERE FOR THE PURPOSE OF PROVIDING FINANCIAL AID IN THE TRANSITION FROM MILITARY TO CIVILIAN LIFE OF THOSE MEMBERS WHO WERE RELEASED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS. THERE WAS NO PROVISION IN THE LAW FOR PAYMENT OF MUSTERING- OUT PAY WHERE THE SEPARATION FROM THE MILITARY SERVICE WAS BY DEATH.

IN THE CIRCUMSTANCES DISCLOSED, WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM.