B-165722, MAR. 27, 1969

B-165722: Mar 27, 1969

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NUDO: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 10. THE GENERAL ACCOUNTING OFFICE WAS FIRST PLACED ON NOTICE OF YOUR CLAIM ON MARCH 22. WAS RECEIVED HERE BY REFERRAL FROM THAT CENTER. WERE RETIRED IN FEBRUARY 1948. IT IS STATED IN THAT LETTER THAT YOU WERE NOT FURNISHED QUARTERS OR RATIONS IN KIND FOR THE PERIOD DECEMBER 8. SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE YOU RETIRED (DATE OF ACCRUAL OF YOUR CLAIM) AND THE DATE YOUR LETTER WAS RECEIVED HERE. THAT ACT BARS ANY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE) WHICH IS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

B-165722, MAR. 27, 1969

TO MR. FELIPE N. NUDO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 10, 1968, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR QUARTERS AND SUBSISTENCE (RATION) ALLOWANCES BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE AS AN ENLISTED MEMBER OF THE PHILIPPINE SCOUTS DURING WORLD WAR II.

THE GENERAL ACCOUNTING OFFICE WAS FIRST PLACED ON NOTICE OF YOUR CLAIM ON MARCH 22, 1968, WHEN YOUR LETTER OF SEPTEMBER 4, 1967, ADDRESSED TO THE COMMANDING OFFICER, MILITARY PAY DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, WAS RECEIVED HERE BY REFERRAL FROM THAT CENTER.

IN THAT LETTER YOU REQUESTED THAT A SETTLEMENT BE MADE IN YOUR FAVOR FOR QUARTERS AND RATION ALLOWANCES UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9206, DATED JULY 27, 1942, FROM THE DATE OF THE CAPITULATION OF BATAAN TO THE DATE YOU REPORTED TO MILITARY CONTROL. YOU STATED THAT YOU ENLISTED ON AUGUST 12, 1918, AND WERE RETIRED IN FEBRUARY 1948.

ALSO, ON MARCH 22, 1968, THIS OFFICE RECEIVED A LETTER DATED JANUARY 3, 1968, WRITTEN ON YOUR BEHALF BY MCKINLEY CHAPTER NO. 2, DISABLED AMERICAN VETERANS, MAKATI, RIZAL, PHILIPPINES, IN SUPPORT OF YOUR CLAIM. IT IS STATED IN THAT LETTER THAT YOU WERE NOT FURNISHED QUARTERS OR RATIONS IN KIND FOR THE PERIOD DECEMBER 8, 1941, UNTIL "IN OR ABOUT MARCH 1945.'

SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE YOU RETIRED (DATE OF ACCRUAL OF YOUR CLAIM) AND THE DATE YOUR LETTER WAS RECEIVED HERE, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU BY LETTER DATED APRIL 2, 1968, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT BARS ANY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE) WHICH IS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

BY LETTER DATED JUNE 6, 1968, YOU REQUESTED FURTHER CONSIDERATION OF YOUR CLAIM ON THE BASIS THAT IN 1947 YOU HAD FILED A CLAIM FOR ALL BENEFITS BELIEVED TO BE DUE AND THAT ONLY "BACK PAY (SCOUT PAY)" WAS PAID TO YOU. IN REPLY, OUR CLAIMS DIVISION EXPLAINED TO YOU IN A LETTER DATED SEPTEMBER 6, 1968, OF THE EFFECT OF THE ACT OF OCTOBER 9, 1940, AND ADVISED YOU THAT THE FACT THAT YOU MAY HAVE FILED A CLAIM WITH ANOTHER AGENCY OF THE FEDERAL GOVERNMENT DOES NOT IN ANY WAY AFFECT THE OPERATION OF THAT ACT WHICH REQUIRES THAT EVERY CLAIM BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE BEFORE THE EXPIRATION OF THE 10-YEAR LIMITATION PERIOD IN ORDER FOR SUCH CLAIM TO BE RECOGNIZED AND CONSIDERED ON ITS MERITS. THERE WAS ALSO INCLUDED IN THE LETTER AN EXPLANATION AS TO WHY IN ANY EVENT NO AMOUNT COULD HAVE ACCRUED TO YOU AS MONETARY ALLOWANCE IN LIEU OF QUARTERS AND SUBSISTENCE IN YOUR PARTICULAR SITUATION.

YOU SAY IN YOUR LETTER OF OCTOBER 10, 1968, THAT THE GENERAL ACCOUNTING OFFICE IS THE MAIN OFFICE OF THE ENTIRE U.S. GOVERNMENT AND THE DEPARTMENT OF THE ARMY IS AN AGENCY THEREOF. YOU CONTEND, THEREFORE, THAT THE FAILURE OF THAT DEPARTMENT IN 1947 TO FORWARD YOUR CLAIM TO THE GENERAL ACCOUNTING OFFICE -- A MATTER NOT WITHIN YOUR CONTROL -- SHOULD BE CONSIDERED AS WAIVING THE ACT OF OCTOBER 9, 1940, IN YOUR CASE.

APPARENTLY, THE CLAIM FILED BY YOU WITH THE DEPARTMENT OF THE ARMY IN 1947 WAS A CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD YOU WERE INVOLVED IN HOSTILITIES DURING WORLD WAR II. UNDER THE MISSING PERSONS ACT OF 1942, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1001, ET SEQ. (1946 ED.), THE DEPARTMENT OF THE ARMY HAD AUTHORITY TO CONSIDER AND SETTLE SUCH CLAIMS AND PRESUMABLY YOU RECEIVED THE AMOUNT DETERMINED TO BE UNDER THAT ACT. YOUR PRESENT CLAIM APPEARS TO BE A REQUEST FOR REVIEW OF THE ACTION TAKEN AT THAT TIME BY THE DEPARTMENT OF THE ARMY.

THE DEPARTMENT OF THE ARMY IS NOT AN AGENCY UNDER THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE; BOTH ARE SEPARATE INDEPENDENT AGENCIES OF THE FEDERAL GOVERNMENT. THE GENERAL ACCOUNTING OFFICE IS NOT AUTHORIZED TO CHANGE OR MODIFY AN ADMINISTRATIVE SETTLEMENT UNDER THE MISSING PERSONS ACT BY THE DEPARTMENT OF THE ARMY BECAUSE THAT ACT MAKES SUCH ADMINISTRATIVE SETTLEMENTS FINAL AND CONCLUSIVE ON THIS OFFICE. HENCE, CONSIDERING YOUR LETTER AS A REQUEST FOR REVIEW OF THE SETTLEMENT MADE IN YOUR CASE, SUCH REQUEST MUST BE DENIED.

IT MAY BE STATED, HOWEVER, THAT THE MISSING PERSONS ACT DID NOT AUTHORIZE CREDIT FOR QUARTERS AND RATIONS ALLOWANCES, UNLESS SUCH ALLOWANCES WERE BEING CREDITED TO YOU ON DECEMBER 8, 1941, THE DATE YOU ENTERED A STATUS COVERED BY THE ACT. IN MAKING THE SETTLEMENT UNDER THAT ACT THE DEPARTMENT OF THE ARMY APPARENTLY DETERMINED THAT YOU WERE NOT BEING PAID SUCH ALLOWANCES AT THAT TIME AND THAT AS A CONSEQUENCE A CREDIT OF SUCH ALLOWANCES IN YOUR ACCOUNT ON AND AFTER THAT DATE WAS NOT PROPER. SECTION 9 OF THAT ACT, AS AMENDED, PROVIDES THAT "ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE.'

IF YOUR LETTERS WERE NOT INTENDED TO REQUEST REVIEW OF THE SETTLEMENT MADE BY THE DEPARTMENT OF THE ARMY BUT INSTEAD ARE INTENDED TO PRESENT A CLAIM WITHIN THE JURISDICTION OF THIS OFFICE, SUCH CLAIM IS CLEARLY BARRED BY THE ACT OF OCTOBER 9, 1940. AS INDICATED ABOVE, IT WAS NOT RECEIVED IN THIS OFFICE UNTIL AFTER THE LAPSE OF A PERIOD OF ALMOST 20 YEARS AFTER IT ACCRUED. ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN IN THE MATTER.