B-171372, JAN 4, 1971

B-171372, JAN 4, 1971

MUSTERING-OUT PAY DENIAL OF CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO SERVICE IN THE PHILIPPINE SCOUTS DURING WORLD WAR II ON BASIS THAT WHERE CLAIM IS NOT RECEIVED WITHIN 10 YEARS FROM DATE IT ACCRUED, IT IS BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A.

TO MR. JUAN PIDO:

FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, CONCERNING YOUR CLAIMS FOR EQUALIZATION OF BASE PAY AND MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM MILITARY SERVICE IN 1949. YOUR LETTER WAS FORWARDED TO OUR OFFICE FOR REPLY.

YOUR CLAIM FOR MUSTERING-OUT PAY WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED APRIL 5, 1967, AND JULY 6, 1967. IN THOSE LETTERS YOU WERE ADVISED OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH BAR CONSIDERATION OF YOUR CLAIM BY THIS OFFICE DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THAT ACT.

YOU NOW CONTEND THAT YOU ARE ENTITLED TO MUSTERING-OUT PAY AND EQUALIZATION OF BASE PAY "UNDER THE PROVISION OF ACT. 263-88 CONGRESS DATED JANUARY 9, 1963 AND APPROVED ON SEPTEMBER 30, 1965." WE CANNOT IDENTIFY THE LAW TO WHICH YOU REFER. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31, 1964), NOR ANY LAW ENACTED ON SEPTEMBER 30, 1965, IN ANY WAY RELATES TO MUSTERING-OUT PAY OR EQUALIZATION OF BASE PAY. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9, 1963.

YOU ALSO REFER TO "THE PROVISION OF 311-322 OF T.M. 502 MUSTERING OUT PAY LAW." PRESUMABLY, YOU HAVE REFERENCE TO REGULATIONS CONTAINED IN T.M. 14- 502, CHAPTER 10, SECTION V, MUSTERING-OUT PAYMENTS, WHICH WERE ISSUED UNDER AUTHORITY OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.). SECTION 2(A)(1) OF THAT ACT PROVIDED FOR A MAXIMUM PAYMENT OF $300 TO OTHERWISE QUALIFIED PERSONS WHO SERVED 60 DAYS OR MORE AND SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. HOWEVER, IF YOU WERE ENTITLED TO MUSTERING-OUT PAY UNDER THAT ACT, CLAIM THEREFOR, LIKE OTHER CLAIMS FOR MUSTERING-OUT PAY, WAS SUBJECT TO THE TIME LIMITATION IMPOSED BY THE 1940 ACT, WHICH BARS CONSIDERATION OF ANY CLAIM NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

IN SUPPORT OF YOUR CLAIM YOU INVITE ATTENTION TO SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 543. SECTION 14 RELATES ONLY TO THE AUTHORIZATION FOR ENLISTMENT OF A NUMBER OF PERSONS IN THE PHILIPPINE SCOUTS FOR DUTY IN THE PHILIPPINE ISLANDS AND CERTAIN AREAS OUTSIDE THE PHILIPPINES ON OR AFTER OCTOBER 6, 1945. WHILE THAT ACT MAY HAVE BEEN THE AUTHORITY UNDER WHICH YOU ENLISTED AS A PHILIPPINE SCOUT AFTER THAT DATE, IT DOES NOT IN ANY WAY REFER TO EQUALIZATION OF BASE PAY OR MUSTERING-OUT PAY.

YOU STATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON MAY 19, 1949. ANY CLAIM YOU MAY HAVE HAD TO MUSTERING-OUT PAY ACCRUED AT THAT TIME AND IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM WITHIN 10 YEARS AFTER THE DATE OF YOUR DISCHARGE IN ORDER TO AVOID THE BAR OF THE 1940 ACT. IN VIEW OF THE FACT THAT YOUR CLAIM WAS FIRST RECEIVED HERE ON MARCH 13, 1967, MORE THAN 17 YEARS AFTER THE DATE OF YOUR DISCHARGE, THERE IS NO FURTHER ACTION THIS OFFICE MAY TAKE ON SUCH CLAIM.