B-166804, MAY 13, 1969

B-166804: May 13, 1969

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UMANDAP: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 22. 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. OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION. IN EACH OF WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER SUCH CLAIM 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 JUNE 3. THAT WHILE YOU MAY HAVE FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY.

B-166804, MAY 13, 1969

TO MR. RAMON S. UMANDAP:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 22, 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 YOUR SERVICE AS A PHILIPPINE SCOUT DURING THE PERIOD FEBRUARY 1946 TO FEBRUARY 1949.

OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION, DATED OCTOBER 6, 1967, JANUARY 30, 1968, AND JUNE 3, 1968, IN EACH OF WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER SUCH CLAIM SINCE THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 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 JUNE 3, 1968, THAT WHILE YOU MAY HAVE FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY, SUCH FILING IS NOT SUFFICIENT COMPLIANCE WITH THE 1940 ACT WHICH REQUIRES THAT CLAIMS MUST BE TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE. 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, YOU INVITE ATTENTION TO SECTION 14 OF PUBLIC LAW 190 (THE ACT OF OCTOBER 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. ADDITIONALLY, YOU INDICATE THAT THE "PROVISION OF ACT 263-88TH CONGRESS DATED JANUARY 9, 1963 AND APPROVED ON SEPTEMBER 30, 1965," HAS 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 ENACTED OR 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 FOR FILING CERTAIN CLAIMS FOR MUSTERING-OUT PAYMENTS. 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 PROVIDES 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 BY REASON OF THEIR FAILURE TO MAKE APPLICATION PRIOR TO THE STATUTORY DEADLINE OF JULY 17, 1959. INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE ON FEBRUARY 4, 1949, WHICH WAS BEFORE THE KOREAN CONFLICT, NEITHER CHAPTER 43 OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89-50 HAS ANY APPLICATION IN YOUR CASE.

YOUR ATTENTION IS ALSO INVITED TO THE FACT THAT SECTION 14 OF THE ACT OF OCTOBER 6, 1945, MENTIONED ABOVE, DOES NOT PERTAIN TO THE PAYMENT OF MUSTERING-OUT PAY. IT 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 DATE THE CLAIM INVOLVED FIRST ACCRUED. YOU STATE THAT YOU WERE DISCHARGED FROM THE SERVICE ON FEBRUARY 4, 1949. SINCE YOUR CLAIM ACCRUED NOT LATER THAN THE DATE OF YOUR DISCHARGE, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIMS ON OR BEFORE FEBRUARY 4, 1959, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. OUR FILE SHOWS THAT THE FIRST CLAIM FROM YOU CONCERNING MUSTERING-OUT PAY OR ANY OTHER ITEM OF PAY AND ALLOWANCES INCIDENT TO YOUR MILITARY SERVICE WAS RECEIVED HERE ON SEPTEMBER 22, 1967, MORE THAN 18 YEARS AFTER THE DATE OF YOUR DISCHARGE.

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