B-160937, MAR. 24, 1967

B-160937: Mar 24, 1967

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ABELARDO LOPEZ: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15. IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE AS AN ENLISTED MEMBER OF THE PHILIPPINE SCOUTS FROM WHICH YOU WERE DISCHARGED ON MARCH 24. WHICH WAS ADDRESSED TO THE CLAIMS SETTLEMENT DIVISION. YOU EXPRESSED THE BELIEF THAT YOU WERE ENTITLED TO A MUSTERING-OUT PAYMENT OF $200 WHEN YOU WERE SEPARATED FROM THE MILITARY SERVICE RATHER THAN $100 WHICH YOU RECEIVED UPON DISCHARGE. INASMUCH AS 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.

B-160937, MAR. 24, 1967

TO MR. ABELARDO LOPEZ:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1967, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE AS AN ENLISTED MEMBER OF THE PHILIPPINE SCOUTS FROM WHICH YOU WERE DISCHARGED ON MARCH 24, 1949.

ON AUGUST 3, 1966, THIS OFFICE FIRST RECEIVED A CLAIM FROM YOU FOR ADDITIONAL MUSTERING-OUT PAY BY THE RECEIPT OF YOUR LETTER OF JULY 10, 1966. IN THAT LETTER, WHICH WAS ADDRESSED TO THE CLAIMS SETTLEMENT DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, AND FORWARDED HERE, YOU EXPRESSED THE BELIEF THAT YOU WERE ENTITLED TO A MUSTERING-OUT PAYMENT OF $200 WHEN YOU WERE SEPARATED FROM THE MILITARY SERVICE RATHER THAN $100 WHICH YOU RECEIVED UPON DISCHARGE.

INASMUCH AS 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 18, 1966, ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

IN A LETTER DATED OCTOBER 8, 1966, YOU CONTENDED THAT THE ACT OF OCTOBER 9, 1940, COULD NOT OPERATE IN YOUR CASE INASMUCH AS YOU HAD TIMELY FILED A CLAIM WITH THE SETTLEMENT OPERATIONS, FINANCE CENTER, U.S. ARMY, THAT IS, ON AUGUST 28, 1957. OUR CLAIMS DIVISION BY LETTER DATED OCTOBER 26, 1966, AGAIN EXPLAINED TO YOU WHY THE ACT OF OCTOBER 9, 1940, BARS CONSIDERATION OF YOUR CLAIM AND ADVISED YOU,ALSO, THAT THE FILING OF A CLAIM WITH THE DEPARTMENT OF THE ARMY DOES NOT CONSTITUTE THE FILING OF A CLAIM WITH THE GENERAL ACCOUNTING OFFICE WITHIN THE MEANING OF THE 1940 ACT.

YOU SAY IN YOUR LETTER OF JANUARY 15, 1967, AMONG OTHER THINGS, THAT AT THE TIME OF YOUR DISCHARGE YOU WERE NOT INFORMED OF YOUR "LEGAL RIGHTS AND PRIVILEGES.' THE ACT OF OCTOBER 9, 1940, SPECIFICALLY PRECLUDES THIS OFFICE FROM CONSIDERING COGNIZABLE CLAIMS AGAINST THE UNITED STATES GOVERNMENT IF NOT RECEIVED HERE WITHIN THE PRESCRIBED 10-YEAR LIMITATION PERIOD AFTER THE CLAIM FIRST ACCRUED. ALL PERSONS ARE CHARGEABLE WITH KNOWLEDGE OF THIS LAW AND OTHER PUBLIC LAWS OF THE UNITED STATES IRRESPECTIVE OF THEIR RESIDENCE OR CITIZENSHIP. WHILE THE MILITARY SERVICES MAY ADVISE MEMBERS OF THEIR RIGHTS, ENTITLEMENTS AND BENEFITS UNDER THE LAWS IN EFFECT AT THE TIME OF THEIR SEPARATION FROM THE SERVICES, THERE IS NO OBLIGATION TO FURNISH SUCH MEMBERS COPIES OF THE ACT OF OCTOBER 9, 1940, OR OTHER LAWS. THE FACT THAT YOU WERE UNAWARE OF THAT LAW PROVIDES NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

IN VIEW OF THE CLEAR AND UNAMBIGUOUS PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AND INASMUCH AS YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE WITHIN 10 YEARS AFTER THE DATE OF ITS ACCRUAL, THERE IS NO ACTION WHICH WE MAY TAKE ON YOUR CLAIM. WE HAVE NO AUTHORITY TO WAIVE THE ACT IN INDIVIDUAL CASES.

WE MAY ADD THAT EVEN IF YOUR CLAIM WAS NOT BARRED FROM CONSIDERATION BY THIS OFFICE THERE WOULD APPEAR TO BE NO LEGAL AUTHORITY FOR PAYMENT TO YOU OF ANY ADDITIONAL MUSTERING-OUT PAY. EVIDENTLY YOUR ENLISTMENT IN THE PHILIPPINE SCOUTS ON MAY 6, 1946, WAS EFFECTED UNDER THE PROVISIONS OF SECTION 14 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 543, WHICH AUTHORIZED THE SECRETARY OF WAR, WITH THE APPROVAL OF THE PHILIPPINE GOVERNMENT, TO ENLIST 50,000 MEN IN THE PHILIPPINE SCOUTS "FOR SERVICE IN THE PHILIPPINE ISLANDS" AND ELSEWHERE IN THE FAR EAST.

ALTHOUGH TITLE II OF THE ACT OF MAY 27, 1946, CH. 271, 60 STAT. 223, PROVIDED THAT THE BENEFITS PROVIDED IN THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, CH. 9, 58 STAT. 8, SHOULD BE DEEMED TO APPLY TO PERSONS WHO SERVED IN THE PHILIPPINE SCOUTS UNDER SECTION 14 OF THE 1945 ACT, IT FURTHER PROVIDED (1) THAT FOR THE PURPOSE OF COMPUTING SUCH PAYMENTS FOR SERVICE IN THE PHILIPPINE SCOUTS, SERVICE WHOLLY PERFORMED IN THE PHILIPPINE ISLANDS SHOULD BE COMPENSATED FOR ON THE SAME BASIS AS SERVICE WHOLLY PERFORMED WITHIN THE UNITED STATES AND (2) THAT MUSTERING-OUT PAYMENTS MADE ON ACCOUNT OF SUCH SERVICE IN THE PHILIPPINE SCOUTS SHOULD BE PAID AT THE RATE OF ONE PHILIPPINE PESO FOR EACH UNITED STATES DOLLAR AUTHORIZED BY THE 1944 ACT.

SECTION 2 (A) (2) OF THE 1944 ACT AUTHORIZED THE PAYMENT OF "$200 FOR PERSONS WHO, HAVING PERFORMED ACTIVE SERVICE FOR SIXTY DAYS OR MORE, HAVE SERVED NO PART THEREOF OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.' UNDER SUCH STATUTORY PROVISIONS, A MEMBER OF THE PHILIPPINE SCOUTS WHO HAD PERFORMED ACTIVE SERVICE FOR 60 DAYS OR MORE, WHOLLY WITHIN THE PHILIPPINE ISLANDS, WAS ENTITLED TO A MUSTERING-OUT PAYMENT OF $100 (200 PHILIPPINE PESOS). SINCE YOU ADMIT THAT YOU RECEIVED THE SUM OF $100 (200 PHILIPPINE PESOS) AS MUSTERING-OUT PAY, IT APPEARS THAT YOU HAVE RECEIVED THE FULL AMOUNT TO WHICH YOU WERE ENTITLED UNDER THE LAWS MENTIONED ..END :