B-160689, FEB. 14, 1967

B-160689, FEB. 14, 1967

TO MR. PEDRO G. MERCADO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1966, CONCERNING YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY INCIDENT TO YOUR SERVICE AS A MEMBER OF THE PHILIPPINE SCOUTS.

AN UNDATED LETTER FROM YOU TO THE DEPARTMENT OF THE ARMY, SETTLEMENTS OPERATIONS, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REQUESTING A "RECOMPUTATION" OF THE MUSTERING-OUT PAYMENT MADE TO YOU SUBSEQUENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS WAS FORWARDED TO THIS OFFICE FOR CONSIDERATION AS A CLAIM FOR ADDITIONAL MUSTERING-OUT PAY AND WAS RECEIVED ON AUGUST 20, 1965.

SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE (DATE OF ACCRUAL OF YOUR CLAIM) AND THE DATE YOUR CLAIM WAS RECEIVED HERE, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AND IN AN ACCOMPANYING LETTER DATED AUGUST 27, 1965, ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION. THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN LETTERS DATED NOVEMBER 2, 1965, AND NOVEMBER 16, 1966, OUR CLAIMS DIVISION AGAIN EXPLAINED TO YOU THAT THE ACT OF OCTOBER 9, 1940, BARS CONSIDERATION OF YOUR CLAIM BECAUSE IT WAS NOT TIMELY FILED HERE AND FURTHER THAT THIS OFFICE IS NOT AUTHORIZED BY THAT ACT TO MAKE AN EXCEPTION TO ITS PROVISIONS.

IN YOUR LETTER OF DECEMBER 21, 1966, YOU QUOTE THE PROVISIONS OF PUBLIC LAW 180, APPROVED JULY 26, 1955, 69 STAT. 380, AMENDING SECTION 503 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, APPROVED JULY 16, 1952, CH. 875, 66 STAT. 690, TO EXTEND THE TIME FOR FILING CLAIMS FOR THE MUSTERING- OUT PAYMENTS THERE AUTHORIZED BY STRIKING OUT "WITHIN TWO YEARS AFTER THE DATE OF ENACTMENT OF THIS TITLE" AND INSERTING IN LIEU THEREOF "ON OR BEFORE JULY 16, 1956.' IT APPEARS TO BE YOUR VIEW THAT THOSE PROVISIONS AND THE PROVISIONS OF PUBLIC LAW 666, DATED SEPTEMBER 19, 1962, 76 STAT. 553, WHICH PROVIDE THAT IN CASES OF DISPUTED CLAIMS FOR VETERANS' BENEFITS THE CLAIMANTS SHALL BE FURNISHED WITH A BRIEF STATEMENT OF THE FACTS AND LAW APPLICABLE TO THE CASE APPEALED AND AFFORDED AN OPPORTUNITY TO REPLY THERETO, SERVE AS AUTHORITY FOR OUR CONSIDERATION OF YOUR CLAIM.

THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"SEC. 501. (A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE ON OR AFTER JUNE 27, 1950, AND PRIOR TO SUCH DATE AS SHALL BE DETERMINED BY PRESIDENTIAL PROCLAMATION OR CONCURRENT RESOLUTION OF THE CONGRESS, AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS, SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT.

"SEC. 503. ANY MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO SHALL HAVE BEEN DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS BEFORE THE EFFECTIVE DATE OF THIS TITLE SHALL, IF APPLICATION THEREFOR IS MADE WITHIN TWO YEARS AFTER THE DATE OF ENACTMENT OF THIS TITLE, BE PAID SUCH MUSTERING-OUT PAYMENT BY THE DEPARTMENT OF THE ARMY, NAVY, OR AIR FORCE, * * *.'

THOSE PROVISIONS OF LAW RELATE ONLY TO MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO WERE IN ACTIVE SERVICE ON OR AFTER JUNE 27, 1950. MEMBERS WHO WERE IN ACTIVE SERVICE ON OR AFTER THAT DATE AND WHO HAD BEEN DISCHARGED OR RELIEVED FROM SUCH SERVICE UNDER HONORABLE CONDITIONS PRIOR TO JULY 16, 1952, THE EFFECTIVE DATE OF THE ACT, WERE ENTITLED TO PAYMENT OF THE MUSTERING-OUT PAY AUTHORIZED UNDER THAT ACT IF APPLICATION THEREFOR WAS FILED PRIOR TO JULY 16, 1954. THE EFFECT OF THE 1955 ACT, CITED BY YOU, WAS TO EXTEND THAT FILING PERIOD UNTIL JULY 16, 1956. THE LATTER DATE WAS CHANGED TO JULY 16, 1959, BY THE ACT OF AUGUST 14, 1958, PUBLIC LAW 85-638, 72 STAT. 593. SINCE THERE IS NOTHING IN THE RECORD TO SHOW THAT YOU WERE A MEMBER OF THE ARMED FORCES OF THE UNITED STATES ON OR AFTER JUNE 27, 1950, THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, AS AMENDED BY THE 1955 AND 1958 ACTS, IS NOT APPLICABLE IN YOUR CASE.

YOUR ENTITLEMENT TO MUSTERING-OUT PAY CAME FROM THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691-691G (1952 ED.), AND OUR CONSIDERATION OF YOUR CLAIM IS GOVERNED BY THE ACT OF OCTOBER 9, 1940. SINCE WE ARE PRECLUDED BY THE ACT OF OCTOBER 9, 1940, FROM CONSIDERING YOUR CLAIM BECAUSE IT WAS NOT FILED HERE WITHIN 10 YEARS AFTER THE DATE OF ITS ACCRUAL, THERE IS NO ACTION WHICH WE MAY TAKE ON THE CLAIM.