B-160952, APR. 10, 1967

B-160952: Apr 10, 1967

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FERMIN SAN BUENAVENTURA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2. YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 21. SINCE THERE WAS NOTHING IN OUR FILES REFLECTING THE RECEIPT OF A PRIOR CLAIM FOR MUSTERING-OUT PAY AND INASMUCH AS A PERIOD OF MORE THAN 10 FULL YEARS HAD ELAPSED SINCE THE ACCRUAL OF YOUR CLAIM. ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED. WITH CERTAIN EXCEPTIONS RELATIVE TO MEMBERS IN THE MILITARY SERVICE WHICH ARE NOT APPLICABLE IN YOUR CASE. THE DATE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 21. YOU WERE AGAIN ADVISED THAT IT WAS BARRED BY THE ACT OF OCTOBER 9. YOU WERE FURTHER ADVISED THAT OUR OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THAT ACT AND.

B-160952, APR. 10, 1967

TO MR. FERMIN SAN BUENAVENTURA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1967, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES AND FORWARDED HERE FOR REPLY, AND TO YOUR LETTER OF MARCH 4, 1967, TO OUR OFFICE, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR MILITARY SERVICE IN THE PHILIPPINE SCOUTS DURING THE PERIOD JUNE 18, 1946, TO APRIL 28, 1949.

YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 21, 1963. SINCE THERE WAS NOTHING IN OUR FILES REFLECTING THE RECEIPT OF A PRIOR CLAIM FOR MUSTERING-OUT PAY AND INASMUCH AS A PERIOD OF MORE THAN 10 FULL YEARS HAD ELAPSED SINCE THE ACCRUAL OF YOUR CLAIM--- YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS IN APRIL 1949- - OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU ON FEBRUARY 7, 1963, ALONG WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED. THE ACT OF OCTOBER 9, 1940, PROVIDES IN PERTINENT PART AS FOLLOWS:

"EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.

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

BY LETTERS OF SEPTEMBER 2, 1966, AND DECEMBER 22, 1966, OUR CLAIMS DIVISION AGAIN ADVISED YOU THAT THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, AS AMENDED, BARS CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED, WITH CERTAIN EXCEPTIONS RELATIVE TO MEMBERS IN THE MILITARY SERVICE WHICH ARE NOT APPLICABLE IN YOUR CASE. SINCE MORE THAN 10 FULL YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE ON APRIL 28, 1949, AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 21, 1963, YOU WERE AGAIN ADVISED THAT IT WAS BARRED BY THE ACT OF OCTOBER 9, 1940. YOU WERE FURTHER ADVISED THAT OUR OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THAT ACT AND, THEREFORE, WE MAY MAKE NO EXCEPTION TO ITS PROVISIONS.

IN YOUR LETTER OF FEBRUARY 2, 1967, TO THE PRESIDENT OF THE UNITED STATES, YOU SAY THAT YOU BELIEVE THAT THE AGENCY YOU FIRST APPLIED TO FOR PAYMENT OF MUSTERING-OUT PAY COULD NOT HAVE PAID IT WITHOUT ADJUDICATION BY OUR OFFICE SINCE ALL CLAIMS ARE FORWARDED TO US FOR FINAL ADJUDICATION AND APPROVAL.

GOVERNMENT DEPARTMENTS AND AGENCIES PAY MOST OF THEIR OBLIGATIONS IN THE ORDINARY COURSE OF BUSINESS. THE 100.13 PHILIPPINE PESOS YOU SAY YOU HAVE RECEIVED AS MUSTERING-OUT PAY WAS APPARENTLY PAID TO YOU BY THE ARMY ON THE BASIS OF YOUR CLAIM WITHOUT REFERRING IT TO US AND WE HAVE NO RECORD OF THE RECEIPT OF ANY CLAIM FROM YOU FOR MUSTERING-OUT PAY PRIOR TO THE ONE OUR OFFICE RECEIVED ON JANUARY 21, 1963.

IN YOUR LETTER OF MARCH 4, 1967, YOU SAY THAT THE ACT OF JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT. 173, EXTENDED THE TIME FOR WHICH YOU COULD FILE CLAIM FOR MUSTERING-OUT PAY. THE LAW TO WHICH PUBLIC LAW 89-50 APPLIES 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 PREVIOUS STATUTORY DEADLINE DATE OF JULY 17, 1959. ITS PROVISIONS HAVE NO APPLICATION TO CLAIMS SUCH AS YOURS AND IT IS NOT FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM.

EVEN IF YOUR CLAIM WERE NOT BARRED, IT APPARENTLY WOULD BE FOR DISALLOWANCE. THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 (1946 EDITION), AUTHORIZED $100 MUSTERING-OUT PAYMENT TO MEMBERS WHO PERFORMED ACTIVE SERVICE FOR LESS THAN 60 DAYS; $200 FOR MEMBERS WHO SERVED MORE THAN 60 DAYS WITHIN THE UNITED STATES; AND $300 FOR PERSONS WHO SERVED MORE THAN 60 DAYS AND WHO SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

THAT ACT WAS MADE APPLICABLE TO PHILIPPINE SCOUTS UNDER THE PROVISIONS OF TITLE II OF THE ACT OF MAY 27, 1946, 60 STAT. 223-224, WHICH PROVIDED IN PERTINENT PART (1) THAT FOR THE PURPOSE OF COMPUTING MUSTERING-OUT PAYMENTS FOR SERVICE IN THE PHILIPPINE SCOUTS UNDER THE PROVISIONS OF SECTION 14 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 538, 543, 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 SERVICE IN THE PHILIPPINE SCOUTS SHOULD BE PAID AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY THE 1944 ACT.

THE MUSTERING-OUT PAYMENT WHICH YOU SAY YOU RECEIVED WAS COMPUTED UNDER THOSE PROVISIONS AND PRESUMABLY WAS PROPER ON THE BASIS OF YOUR SERVICE AS REFLECTED IN THE OFFICIAL ARMY RECORDS.

HOWEVER THAT MAY BE, UNDER THE ACT OF OCTOBER 9, 1940, WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM AND THERE IS NO FURTHER ACTION OUR OFFICE MAY TAKE IN THE MATTER.