B-170089, SEP. 1, 1970

B-170089, SEP. 1, 1970

MUSTERING-OUT PAY DECISION TO A FORMER MEMBER OF THE PHILIPPINE SCOUTS DISALLOWING CLAIM FOR MUSTERING-OUT PAY DUE INCIDENT TO DISCHARGE FROM MILITARY SERVICE, DECEMBER 3, 1945. A FORMER MEMBER OF THE PHILIPPINE SCOUTS WHOSE CLAIM FOR MUSTERING-OUT PAY WAS NOT FILED WITHIN THE TEN YEAR LIMITATION PERIOD FROM DATE OF DISCHARGE MAY NOT HAVE CLAIM CONSIDERED.

TO MR. ELISEO E. CABUNGCAL:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 10, 1970, WITH ENCLOSURE, RELATIVE TO YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE MILITARY SERVICE AS A PHILIPPINE SCOUT ON DECEMBER 3, 1945.

YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 26, 1969, AND ON MAY 29, 1969, THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, FOR THE REASON THAT IT WAS NOT TIMELY RECEIVED AND CONSEQUENTLY WAS BARRED BY THE PROVISIONS OF THAT ACT.

YOUR CLAIM WAS THE SUBJECT OF OFFICE LETTER OF AUGUST 11, 1969, IN WHICH OUR CLAIMS DIVISION ADVISED YOU THAT YOUR CLAIM COULD NOT BE CONSIDERED BECAUSE IT WAS BARRED BY THE ACT OF OCTOBER 9, 1940. ALSO, IT WAS EXPLAINED THAT PUBLIC LAW 263, 88TH CONGRESS, WHICH WAS APPROVED JANUARY 31, 1964, HAS NO BEARING ON EITHER THE PAYMENT OF MUSTERING-OUT PAY OR THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940.

PURSUANT TO YOUR REQUEST WE RECONSIDERED THE MATTER AND BY DECISION DATED JULY 2, 1970, B-170089, WE SET FORTH THE FACTS AND EXPLAINED THE REASONS WHY YOUR CLAIM WAS SUBJECT TO THE TIME LIMITATION IMPOSED BY THE 1940 ACT. WE ALSO EXPLAINED THAT THE ACT OF JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT. 173 WAS ENACTED TO AUTHORIZE MUSTERING-OUT PAY TO A SMALL NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING THE MUSTERING-OUT PAY BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE DATE OF JULY 17, 1959. WE EXPLAINED FURTHER THAT ITS PROVISIONS WERE NOT INTENDED TO IN ANY WAY AMEND OR ABRIDGE THE APPLICATION OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, IN THE MATTER OF CLAIMS AGAINST THE UNITED STATES, AND THEREFORE, IT IS NOT FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM.

WITH YOUR PRESENT LETTER YOU ENCLOSED A COPY OF LETTER DATED SEPTEMBER 7, 1954, TO THE MANAGER, UNITED STATES VETERANS ADMINISTRATION REGIONAL OFFICE, 1131 ROXAS BOULEVARD, MANILA, PHILIPPINES, IN WHICH YOU APPLIED FOR MUSTERING-OUT PAY. YOU ALSO ENCLOSED AN AFFIDAVIT SWORN TO BEFORE A NOTARY PUBLIC ON AUGUST 14, 1970, IN THE CITY OF CEBU, PHILIPPINES, IN WHICH IT IS STATED THAT THE ABOVE MENTIONED COPY OF LETTER OF SEPTEMBER 7, 1954, IN WHICH YOU APPLIED FOR MUSTERING-OUT PAY IS DUPLICATE COPY OF YOUR ORIGINAL APPLICATION CLAIM.

IT APPEARS TO BE YOUR VIEW THAT THE LETTER OF SEPTEMBER 7, 1954, TO THE VETERANS ADMINISTRATION MAY BE CONSIDERED AS A CLAIM TIMELY FILED IN THIS OFFICE.

AS EXPLAINED IN OUR PRIOR LETTERS TO YOU, OUR CONSIDERATION OF THE CLAIM IS PROHIBITED BY THE BARRING ACT INASMUCH AS MORE THAN 10 FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE FROM THE SERVICE ON DECEMBER 3, 1945, AND THE DATE THE CLAIM WAS FIRST RECEIVED IN THIS OFFICE. ANY CLAIM FILED WITH THE VETERANS ADMINISTRATION IN THE LETTER OF SEPTEMBER 7, 1954, WHICH WAS NOT FORWARDED TO THIS OFFICE WITHIN 10 YEARS FOLLOWING THE DATE OF YOUR DISCHARGE FROM THE SERVICE IN 1945, MAY NOT BE CONSIDERED WITHIN THE MEANING OF THE BARRING ACT AS A CLAIM "RECEIVED IN SAID OFFICE (GENERAL ACCOUNTING OFFICE) WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED."

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE 1940 BARRING ACT WE HAVE NO LEGAL AUTHORITY TO TAKE ANY FURTHER ACTION ON YOUR CLAIM. FURTHER CORRESPONDENCE IN THE ..END :