B-152022, AUG. 1, 1963

B-152022, AUG. 1, 1963

TO MR. BARTOLOME AMARO:

YOUR LETTER OF JUNE 4, 1963, REQUESTED RECONSIDERATION OF OUR DECISION OF APRIL 18, 1963, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR THE PROCEEDS OF CHECK NO. 6,545,062, DATED SEPTEMBER 17, 1945, IN THE AMOUNT OF $331.01 AND DRAWN TO YOUR ORDER. YOUR CLAIM WAS ORIGINALLY DISALLOWED BY OUR OFFICE BY SETTLEMENT OF JANUARY 21, 1963, IN WHICH YOU WERE ADVISED THAT THE RECORDS OF OUR OFFICE INDICATE THAT THE CHECK WAS NEGOTIATED IN DUE COURSE AND THAT PAYMENT HAD BEEN MADE BY THE TREASURER OF THE UNITED STATES. YOU WERE ALSO ADVISED THAT THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 22, 1926, AS AMENDED, 31 U.S.C. 122, PRECLUDE PAYMENT ON CLAIMS FOR THE PROCEEDS OF CHECKS WHERE SUCH CLAIMS ARE NOT PRESENTED TO OUR OFFICE OR TO THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK. YOUR CLAIM WAS NOT PRESENTED WITHIN THE STATUTORY PERIOD.

BY LETTER OF MARCH 2, 1963, YOU REQUESTED FURTHER CONSIDERATION OF YOUR CLAIM ON THE BASIS OF THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF AUGUST 29, 1957, 71 STAT. 492, 50 U.S.C. APP. 1002 (B), WHICH AMENDED THE MISSING PERSONS ACT. SUBSECTION 2 (B) OF THE MISSING PERSONS ACT, AS ADDED BY THIS AMENDMENT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SUCH ENTITLEMENT TO PAY AND ALLOWANCES SHALL NOT BE DENIED, IN THE CASE OF ANY MEMBER OF THE PHILIPPINE SCOUTS WHO WAS CAPTURED IN THE PHILIPPINE ISLANDS BY THE ENEMY DURING WORLD WAR II, SOLELY ON THE GROUND THAT SUCH MEMBER WAS PAROLED AND PERMITTED TO RETURN TO HIS HOME AND ENGAGE IN CIVILIAN PURSUITS PRIOR TO THE TERMINATION OF THE JAPANESE OCCUPATION OF SUCH ISLANDS. CLAIMS OF MEMBERS OF THE PHILIPPINE SCOUTS FOR PAY AND ALLOWANCES UNDER THIS SUBSECTION (WHETHER OR NOT SUCH CLAIMS HAVE BEEN PRESENTED AND REJECTED OR DISALLOWED) MAY, UNTIL THREE YEARS AFTER THE DATE OF ENACTMENT OF THIS SUBSECTION, BE PRESENTED FOR CONSIDERATION OR RECONSIDERATION AND PAYMENT UNDER THIS SUBSECTION: * * *.'

THE ABOVE-QUOTED AMENDMENT TO THE MISSING PERSONS ACT PRECLUDES THE DENIAL OF PAY ACCRUED DURING WORLD WAR II TO THOSE PAROLEES DESIGNATED THEREIN AND PERMITS THE FILING OF CLAIMS THEREFOR WITHIN THREE YEARS FROM AUGUST 27, 1957.

THE RECORD SHOWS THAT THE CHECK INVOLVED WAS ISSUED TO YOU IN PAYMENT OF PAY DUE YOU DURING WORLD WAR II. THE ABOVE ACT GAVE YOU NO ADDITIONAL RIGHTS TO PAY AS SUCH. CONSEQUENTLY, YOUR CLAIM IS BASED SOLELY UPON THE PROCEEDS OF THE CHECK IN QUESTION.

WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE OFFICE THAT THERE IS NO RECORD OF THE CHECK HAVING BEEN RETURNED AS UNDELIVERABLE OR CANCELLED. THE RECORD SHOWS THAT YOU WERE ADVISED OF THIS FACT BY THE CHIEF, RETAINED ACCOUNTS DIVISION, ARMY FINANCE CENTER. FURTHERMORE, SINCE THE CHECK DOES NOT APPEAR ON THE OUTSTANDING LIST, WE CAN ONLY CONCLUDE THAT IT HAD BEEN PAID IN DUE COURSE AND SUBSEQUENTLY DESTROYED. THUS, AN EXAMINATION OF THE INDORSEMENT OF THE CHECK IS IMPOSSIBLE.

BY REASON OF THE PREJUDICIAL EFFECT INCURRED BY YOUR DELAY IN FILING YOUR CLAIM, THE GOVERNMENT HAS LOST THE ABILITY TO PROVE OR DISPROVE THE PROPRIETY OF THE NEGOTIATION OF THE CHECK. IN ANY EVENT, THE CITED ACT OF JUNE 22, 1926, SPECIFICALLY REQUIRES US TO DISALLOW YOUR CLAIM AND WE HAVE NO DISCRETION IN THE MATTER.

IN VIEW OF THE ABOVE, THE PREVIOUS SETTLEMENTS OF JANUARY 21, AND APRIL 18, 1963, DISALLOWING YOUR CLAIM MUST BE SUSTAINED.