B-143990, NOV. 2, 1960

B-143990, NOV. 2, 1960

TO MR. GREGORIO C. TADO:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 22, 1960, AND ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE AS A MEMBER OF THE PHILIPPINE SCOUTS DURING THE PERIOD JULY 15, 1946, TO APRIL 22, 1949.

THE RECORD SHOWS THAT ON APRIL 1, 1960, WE RECEIVED, BY REFERENCE FROM THE CLAIMS DIVISION, SETTLEMENTS OPERATIONS, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, YOUR LETTER DATED FEBRUARY 18, 1960, PRESENTING YOUR CLAIM TO THAT OFFICE. SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED SINCE THE ACCRUAL OF YOUR CLAIM, IT WAS RETURNED TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, PROVIDES, AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE,TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

IN RESPONSE TO YOUR LETTER RECEIVED HERE ON JUNE 21, 1960, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE, YOU WERE ADVISED BY OFFICE LETTER OF JUNE 30, 1960, AMONG OTHER THINGS, THAT WHILE YOU MAY HAVE FILED A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT, WITHIN THE LIMITATION PERIOD, SUCH FILING MAY NOT BE CONSIDERED AS SUFFICIENT COMPLIANCE WITH THE ACT WHICH REQUIRES THAT CLAIMS MUST BE FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN YEARS,"WITH CERTAIN EXCEPTIONS RELATIVE TO MILITARY SERVICE.' YOU REQUEST ADVICE AS TO WHETHER AN EXCEPTION EXISTS IN YOUR FAVOR AS A RESULT OF YOUR MILITARY SERVICE.

UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, WE ARE PRECLUDED FROM CONSIDERING "EVERY CLAIM OR DEMAND" OF THE TYPE COGNIZABLE BY OUR OFFICE UNLESS RECEIVED HERE WITHIN TEN FULL YEARS AFTER THE DATE IT FIRST ACCRUED, SUBJECT TO THE PROVISO THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. FOR THE PURPOSE OF THAT ACT, IT IS CONSIDERED THAT PEACE WAS ESTABLISHED JULY 25, 1947. SEE JOINT RESOLUTION OF JULY 25, 1947, 61 STAT. 451, 454. ALSO, IN CONSIDERING THE EFFECT OF THE ACT OF OCTOBER 9, 1940, CONSIDERATION MUST BE GIVEN SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 50 U.S.C. APP. 525. THAT SECTION PROVIDES THAT THE PERIOD OF MILITARY SERVICE SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY LAW FOR THE BRINGING OF ANY ACTION OR PROCEEDING BY OR AGAINST ANY PERSON IN THE MILITARY SERVICE, WHETHER THE CAUSE OF ACTION OR RIGHT SHALL HAVE ACCRUED PRIOR TO OR DURING THE PERIOD OF SERVICE. HOWEVER, SINCE ANY RIGHT TO ADDITIONAL PAY IN CONNECTION WITH YOUR MILITARY SERVICE WOULD HAVE ACCRUED NOT LATER THAN THE DATE OF YOUR DISCHARGE ON APRIL 22, 1949, AND SINCE IT APPEARS THAT YOU DID NOT RENDER ANY ACTIVE MILITARY DUTY THEREAFTER, THERE IS NO BASIS FOR EXTENDING THE 10-YEAR LIMITATION PRESCRIBED IN THE ACT OF OCTOBER 9, 1940, AND PAYMENT OF YOUR CLAIM IS BARRED UNDER THAT ACT. WE KNOW OF NO AUTHORITY WHICH WOULD PERMIT PAYMENT OF SUCH CLAIM.