B-161793, JUL. 5, 1967

B-161793, JUL. 5, 1967

ARMED SERVICES - MUSTERING-OUT PAY DECISION TO CLAIMANT, FORMER PHILIPPINE SCOUT, THAT CLAIM FOR MUSTERING- OUT PAY MUST BE DENIED BECAUSE OF THE 1940 BARRED ACT.

TO MR. FELIPE ERAYA:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 30, 1967, CONCERNING YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR DISCHARGE FROM MILITARY SERVICE AS A PHILIPPINE SCOUT IN 1949. THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED OCTOBER 20, 1959, OCTOBER 14, 1966, AND FEBRUARY 21, 1967, WHEREIN YOUR CLAIM WAS DENIED RECOGNITION BY THIS OFFICE BECAUSE OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH ACT READS IN PERTINENT PART:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * 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 * * *;,

IN CONNECTION WITH THE ABOVE-QUOTED ACT, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

YOU NOW CONTEND THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS FILED WITHIN THE 10-YEAR PERIOD AND YOU HAVE SUBMITTED A PHOTOSTATIC COPY OF A LETTER YOU SENT TO THE UNITED STATES ARMY FINANCE CENTER UNDER DATE OF DECEMBER 30, 1953, AND THEIR REPLY DATED MARCH 3, 1954, AS PROOF OF A TIMELY FILING.

YOUR ATTENTION IS INVITED TO THE FACT THAT YOUR LETTER OF DECEMBER 30, 1953, REFERS TO ,DIFFERENTIAL PAY" NOT MUSTERING-OUT PAY. YOUR LETTER WAS PROPERLY VIEWED BY THE ARMY FINANCE CENTER AS A CLAIM FOR ADDITIONAL BASIC PAY RATHER THAN FOR MUSTERING-OUT PAY AND WAS DISALLOWED ON THAT BASIS. EVEN IF YOU HAD CLAIMED MUSTERING-OUT PAY AT THAT TIME YOUR LETTER WOULD NOT HAVE CONSTITUTED A PROPER FILING UNDER THE 1940 ACT SINCE THE SUBMISSION OF A CLAIM TO THE ARMY FINANCE CENTER DOES NOT AFFECT THE OPERATION OF THAT ACT. THE SPECIFIC PROVISIONS OF THAT ACT REQUIRE THAT IN ORDER FOR CERTAIN CLAIMS AGAINST THE UNITED STATES TO BE RECOGNIZED AND THEIR MERITS CONSIDERED, THEY MUST BE RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS OF THE DATE SUCH CLAIMS FIRST ACCRUED.

THE FILE DISCLOSES THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON MARCH 16, 1949. THAT WAS THE DATE YOUR CLAIM FOR MUSTERING-OUT PAY FIRST ACCRUED. CONSEQUENTLY, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM ON OR BEFORE MARCH 16, 1959, THE TENTH ANNIVERSARY OF YOUR DISCHARGE FROM MILITARY SERVICE. THE FIRST NOTICE OF A CLAIM FROM YOU CONCERNING MUSTERING-OUT PAY WAS RECEIVED HERE ON OCTOBER 5, 1959, MORE THAN 10 YEARS AFTER YOUR DISCHARGE.

ACCORDINGLY, CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE 1940 ACT, AND THE ACTION TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.

IN CONNECTION WITH THE FOREGOING YOUR ATTENTION IS INVITED TO THE FACT THAT THE MAXIMUM AMOUNT OF MUSTERING-OUT PAY WHICH WAS PAYABLE TO AN OTHERWISE QUALIFIED MEMBER OF THE PHILIPPINE SCOUTS UNDER THE MUSTERING- OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 10, AS AMENDED, 38 U.S.C. 691A, 1946 ED; WAS 300 PESOS ($150), NOT 3,600 PESOS AS APPARENTLY BELIEVED BY YOU.