B-166537, APR. 23, 1969

B-166537: Apr 23, 1969

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CORTES: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 18. WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY. OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION. IN WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER SUCH CLAIMS SINCE THE ACT OF OCTOBER 9. FOREVER BARS ANY CLAIM AGAINST THE UNITED STATES WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. YOU WERE ALSO ADVISED IN THE LETTER OF APRIL 15. THAT WHILE YOU MAY HAVE BEEN UNAWARE OF THAT LAW. " HAVE A BEARING ON YOUR CLAIM. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31. NO LAW WAS APPROVED ON JANUARY 9.

B-166537, APR. 23, 1969

TO MR. ELEUTERIO O. CORTES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 18, 1968, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, CONCERNING YOUR CLAIM FOR "EQUALIZATION OF BASE PAY" AND MUSTERING-OUT PAY IN THE AMOUNT OF $3,600 INCIDENT TO SERVICE IN THE PHILIPPINE SCOUTS DURING AND FOLLOWING WORLD WAR II.

OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION, DATED JANUARY 16, 1964, AND APRIL 15, 1964, IN WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER SUCH CLAIMS SINCE THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, FOREVER BARS ANY CLAIM AGAINST THE UNITED STATES WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. YOU WERE ALSO ADVISED IN THE LETTER OF APRIL 15, 1964, THAT WHILE YOU MAY HAVE BEEN UNAWARE OF THAT LAW, SUCH LACK OF KNOWLEDGE PROVIDES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY MAKE AN EXCEPTION TO THE TIME LIMITATION IMPOSED BY THAT ACT. IN CONNECTION WITH THE FOREGOING, 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 GOVERNMENT OF THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THE GENERAL ACCOUNTING OFFICE.

IN SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY, YOU INVITE ATTENTION TO SECTION 14 OF THE ACT OF OCTOBER 4 (6), 1945, CH. 393, 59 STAT. 543, AND CERTAIN REGULATIONS (APPARENTLY PARAGRAPHS 311-322, TM 14-502, AUGUST 1946 WHICH RELATE TO PAYMENTS UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944), IN THE APPARENT BELIEF THAT SUCH PROVISIONS AUTHORIZED PAYMENT OF MUSTERING- OUT PAY TO YOU IN THE AMOUNT OF $3,600. IN FURTHER SUPPORT OF YOUR CLAIM, YOU CONTEND THAT THE "PROVISION OF ACT NO. 263-88, U.S. CONGRESS, DATED JANUARY 9, 1963 AND APPROVED ON SEPTEMBER 30, 1965," HAVE A BEARING ON YOUR CLAIM.

NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31, 1964), NOR ANY LAW ENACTED ON SEPTEMBER 30, 1965, IN ANY WAY RELATES TO MUSTERING-OUT PAY. NO LAW WAS APPROVED ON JANUARY 9, 1963. PRESUMABLY, YOU HAVE REFERENCE TO PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, WHICH EXTENDS THE TIME LIMITATION FOR FILING CERTAIN CLAIMS FOR MUSTERING-OUT PAY. THAT ACT PROVIDES IN PERTINENT PART:

"NOTWITHSTANDING THE FIRST SENTENCE OF THIS SECTION (2104 OF TITLE 38, U.S. CODE) OR SECTION 71A OF TITLE 31, A MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO WAS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE AS AN OFFICER OF AN ARMED FORCE UNDER HONORABLE CONDITIONS BEFORE JULY 16, 1952, FOR THE PURPOSE OF APPOINTMENT AS A WARRANT OFFICER OR COMMISSIONED OFFICER IN A REGULAR COMPONENT OF AN ARMED FORCE, SHALL, IF APPLICATION IS MADE BEFORE JANUARY 31, 1966, BE PAID MUSTERING-OUT PAYMENT * * *.'

PUBLIC LAW 89-50 IS AN AMENDMENT TO CHAPTER 43 (SECTIONS 2101-2105) OF TITLE 38, U.S. CODE, WHICH PROVIDED FOR MUSTERING-OUT PAYMENTS TO THOSE PERSONS WHO SERVED ON ACTIVE DUTY DURING THE PERIOD OF THE KOREAN CONFLICT. THIS AMENDMENT WAS ENACTED IN ORDER TO EXTEND THE TIME LIMITATION FOR FILING MUSTERING-OUT PAYMENT CLAIMS WITH RESPECT TO A SMALL GROUP OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR REGULAR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY FOR SERVICE DURING THE KOREAN CONFLICT DUE TO THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE OF JULY 17, 1959.

INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE BEFORE THE KOREAN CONFLICT, NEITHER CHAPTER 43, OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89- 50, IS FOR APPLICATION IN YOUR CASE.

YOUR ATTENTION IS ALSO INVITED TO THE FACT THAT SECTION 14 OF THE ACT OF OCTOBER 6, 1945, DOES NOT PERTAIN TO THE PAYMENT OF MUSTERING OUT PAY. RELATES ONLY TO THE AUTHORIZATION FOR THE ENLISTMENT OF A NUMBER OF PERSONS IN THE PHILIPPINE SCOUTS FOR DUTY IN THE PHILIPPINES AND CERTAIN AREAS OUTSIDE THE PHILIPPINES ON OR AFTER OCTOBER 6, 1945.

ANY MUSTERING-OUT PAY TO WHICH YOU MAY HAVE BEEN ENTITLED ACCRUED TO YOU BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.), SECTION 2 (A) (1) OF WHICH PROVIDED FOR A MAXIMUM PAYMENT OF $300 TO PERSONS WHO SERVED 60 DAYS OR MORE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. CONNECTION WITH THIS ACT, TITLE II OF THE ACT OF MAY 27, 1946, CH. 271, 60 STAT. 223, PROVIDED THAT THE MUSTERING-OUT PAYMENT ACT OF 1944 SHOULD BE DEEMED APPLICABLE TO PERSONS WHO PERFORMED SERVICE AS A PHILIPPINE SCOUT UNDER THE ACT OF OCTOBER 6, 1945, BUT PAYMENT WAS TO BE AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY THE 1944 ACT. IN OTHER WORDS, UNDER THE PROVISIONS OF THOSE LAWS, THE MAXIMUM AMOUNT THAT COULD BE PAID AS MUSTERING-OUT PAY TO A PHILIPPINE SCOUT UPON DISCHARGE, EVEN THOUGH HE SERVED MORE THAN 60 DAYS, INCLUDING SERVICE OUTSIDE THE PHILIPPINES SUBSEQUENT TO OCTOBER 6, 1945, WAS 300 PESOS.

CLAIMS FOR MUSTERING-OUT PAY, AS WELL AS CLAIMS FOR OTHER ITEMS OF PAY AND ALLOWANCES INCIDENT TO MILITARY SERVICE, WHICH WOULD INCLUDE THE AMOUNT TO WHICH YOU BELIEVE YOU ARE ENTITLED AS ,EQUALIZATION OF BASE PAY," ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT SUCH CLAIMS BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DAY THE CLAIM FIRST ACCRUED. SINCE YOUR CLAIM ACCRUED NOT LATER THAN THE DATE OF YOUR DISCHARGE, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM ON OR BEFORE THE 10TH ANNIVERSARY OF SUCH DISCHARGE. IN YOUR LETTER OF OCTOBER 13, 1963, YOU STATED THAT YOU WERE DISCHARGED IN "FEBRUARY, 1949.' HOWEVER, YOUR RECENT LETTER LISTS JANUARY 26, 1946, AS THE DATE OF DISCHARGE. OUR FILE SHOWS THAT A CLAIM FOR MUSTERING-OUT PAY WAS RECEIVED FROM YOU ON DECEMBER 12, 1963, WHICH WAS MORE THAN 14 YEARS AFTER YOUR DISCHARGE, WHATEVER THE CORRECT DATE OF DISCHARGE MAY HAVE BEEN.

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

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