B-167534, AUG. 25, 1969

B-167534, AUG. 25, 1969

MILITARY - PHILIPPINE SCOUT - MUSTERING-OUT PAY DECISION TO FORMER PHILIPPINE SCOUT HOLDING THAT CLAIM FOR MUSTERING OUT PAY INCIDENT TO SERVICE DURING PERIOD OCTOBER 15, 1941 TO JANUARY 1, 1946, IS BARRED BY STATUTE OF LIMITATIONS, 31 U.S.C. 71A.

TO MR. LAURO D. MACANDILE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1969, TO THE U.S. ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $3,600 INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS DURING THE PERIOD OCTOBER 15, 1941, TO JANUARY 1, 1946.

YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $300 WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 25, 1968, AND WAS RETURNED TO YOU ON APRIL 9, 1968, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH BARS EVERY CLAIM AGAINST THE UNITED STATES THAT IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

BY LETTER DATED JULY 31, 1968, YOU WERE ADVISED BY OUR CLAIMS DIVISION THAT SINCE MORE THAN 10 YEARS ELAPSED BETWEEN THE DATE YOUR CLAIM FIRST ACCRUED WHEN YOU WERE DISCHARGED FROM THE SERVICE ON JANUARY 1, 1946, AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE, MARCH 25, 1968, CONSIDERATION THEREOF IS BARRED BY THE PROVISIONS OF THE 1940 ACT. ALSO YOU WERE ADVISED THAT EVEN THOUGH YOU WERE NOT ACQUAINTED WITH THE PROVISIONS OF THAT ACT, THIS OFFICE MAY MAKE NO EXCEPTION TO THE PROVISIONS OF THE STATUTE.

YOU CITE THE PROVISIONS OF PARAGRAPHS 311-322 OF T.M. 502 (14-502) AS AUTHORITY FOR THE PAYMENT OF MUSTERING-OUT PAY TO YOU. SECTION 14 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, 59 STAT. 543, CITED IN T.M. 14-502, DOES NOT PERTAIN TO THE PAYMENT OF MUSTERING-OUT PAY. IT RELATES ONLY TO THE AUTHORIZATION FOR ENLISTMENT OF A NUMBER OF MEN IN THE PHILIPPINE SCOUTS FOR SERVICE IN THE PHILIPPINE ISLANDS AND CERTAIN AREAS OUTSIDE THE PHILIPPINES ON AND AFTER OCTOBER 6, 1945. WHILE THAT SECTION WAS AUTHORITY FOR ENLISTMENT IN THE PHILIPPINE SCOUTS, IT DID NOT IN ANY WAY REFER TO MUSTERING-OUT PAY. THIS ACT APPARENTLY HAS NO BEARING ON YOUR CASE.

YOU ALSO CITE "ACT NO. 263 OF THE 8TH CONGRESS DATED JANUARY 9, 1963 AND APPROVED SEPTEMBER 30, 1965.' WE CANNOT IDENTIFY THE LAW TO WHICH YOU REFER SINCE PUBLIC LAW 88-263 APPROVED JANUARY 31, 1964, 78 STAT. 7, RELATES TO MEMBERSHIP AND PARTICIPATION BY THE UNITED STATES IN THE SOUTH PACIFIC COMMISSION; NO PUBLIC LAWS ENACTED DURING THE FIRST SESSION OF THE 88TH CONGRESS WERE APPROVED PRIOR TO MARCH 6, 1963; AND OF THE THREE ACTS APPROVED ON SEPTEMBER 30, 1965, DURING THE FIRST SESSION OF THE 89TH CONGRESS, NONE REFERRED TO MUSTERING-OUT PAY.

ANY MUSTERING-OUT PAY TO WHICH YOU MAY HAVE BEEN ENTITLED ACCRUED TO YOU BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 9, AS AMENDED, 38 U.S.C. 691 (1946ED.). SECTION 2 (A) (1) OF THAT ACT PROVIDED FOR PAYMENT OF A MAXIMUM OF $300 TO PERSONS WHO SERVED 60 DAYS OR MORE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. TITLE II OF THE ACT OF MAY 27, 1946, 60 STAT. 223, PROVIDED THAT THE BENEFITS OF THE MUSTERING-OUT PAYMENT ACT OF 1944 SHOULD BE DEEMED APPLICABLE TO PERSONS WHO SERVED IN THE PHILIPPINE SCOUTS UNDER THE PROVISIONS OF SECTION 14 OF THE ACT OF OCTOBER 6, 1945, AND THAT PAYMENTS MADE UNDER THE 1944 ACT SHOULD BE PAID AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY SUCH LAW. IN OTHER WORDS, UNDER THE PROVISIONS OF THESE LAWS, THE MAXIMUM AMOUNT THAT COULD BE PAID TO A PHILIPPINE SCOUT AS MUSTERING-OUT PAY UPON DISCHARGE WAS 300 PESOS.

YOUR CLAIM FOR MUSTERING-OUT PAY IS SUBJECT TO THE TIME LIMITATION IMPOSED BY THE ACT OF OCTOBER 9, 1940, WHICH BARS EVERY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS FROM THE DATE SUCH CLAIM FIRST ACCRUED. SINCE YOU SAY YOU WERE DISCHARGED ON JANUARY 1, 1946, IT WAS NECESSARY THAT ANY CLAIM ARISING OUT OF YOUR MILITARY SERVICE BE RECEIVED IN THIS OFFICE ON OR BEFORE JANUARY 1, 1956, IN ORDER TO BE CONSIDERED BY THIS OFFICE. YOUR CLAIM WAS NOT RECEIVED HERE UNTIL MARCH 25, 1968, MORE THAN 22 YEARS AFTER THE DATE OF YOUR DISCHARGE.

THE PRIMARY PURPOSE OF THE OCTOBER 9, 1940 ACT IS TO RELIEVE THE GOVERNMENT OF THE NECESSITY OF RETAINING AND SEARCHING OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. NO MATTER HOW MERITORIOUS A CLAIM MAY BE, THIS OFFICE MAY MAKE NO EXCEPTION TO THE STATUTE NOR MAY ANY EXTENSION OF TIME BE GRANTED WITHIN WHICH CLAIMS MAY BE FILED IN THIS OFFICE. SINCE YOUR CLAIM FOR MUSTERING-OUT PAY ACCRUED NOT LATER THAN THE DATE OF YOUR DISCHARGE AND SINCE SUCH CLAIM WAS NOT RECEIVED UNTIL AFTER 10 YEARS FOLLOWING THAT DATE, CONSIDERATION THEREOF IS NOT AUTHORIZED.