B-167901, SEP. 25, 1969

B-167901: Sep 25, 1969

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IF AS ALLEGED SERVICE WAS PERFORMED AS MEMBER OF PHILIPPINE ARMY SERVING WITH USAFFE. NO RIGHT TO MUSTERING-OUT PAY ACCRUED AND IF CLAIMANT SERVED AS MEMBER OF ARMED FORCES OF THE UNITED STATES PAYMENT OF CLAIM IS BARRED BY ACT OF OCTOBER 9. GACELO: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 15. THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JUNE 28. IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9. YOU CONTEND THAT SUCH PAY IS "AUTHORIZED UNDER THE PROVISION OF ACT NO. 263. ARE CONTAINED IN PARAGRAPHS 313-322. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9.

B-167901, SEP. 25, 1969

MILITARY - MUSTERING-OUT PAY - WORLD WAR II SERVICE DECISION REGARDING CLAIM FOR MUSTERING-OUT PAY INCIDENT TO WORLD WAR II SERVICE. IF AS ALLEGED SERVICE WAS PERFORMED AS MEMBER OF PHILIPPINE ARMY SERVING WITH USAFFE, NO RIGHT TO MUSTERING-OUT PAY ACCRUED AND IF CLAIMANT SERVED AS MEMBER OF ARMED FORCES OF THE UNITED STATES PAYMENT OF CLAIM IS BARRED BY ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A.

TO MR. ESTEBAN F. GACELO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 15, 1969, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH HAS BEEN FORWARDED TO OUR OFFICE FOR REPLY AND RECEIVED HERE SEPTEMBER 3, 1969, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $3,600 BELIEVED DUE INCIDENT TO YOUR MILITARY SERVICE DURING WORLD WAR II.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JUNE 28, 1968, AND OCTOBER 18, 1968, IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT PROVIDES IN PERTINENT ART:

"/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 SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY, YOU CONTEND THAT SUCH PAY IS "AUTHORIZED UNDER THE PROVISION OF ACT NO. 263, OF THE 88TH CONGRESS DATE JANUARY 9, 1963 AND APPROVED SEPTEMBER 30, 1965" AND YOU REFER TO THE PROVISIONS OF "311-322 OF T.M. 602.' APPLICABLE REGULATIONS ISSUED UNDER AUTHORITY OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.) ARE CONTAINED IN PARAGRAPHS 313-322, TM 14-502.

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.

THE MUSTERING-OUT PAYMENT ACT OF 1944, AUTHORIZED THE PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO ENGAGED IN ACTIVE SERVICE FOR VARIOUS PERIODS OF TIME DURING WORLD WAR II. SECTION 6 (A) OF THAT ACT DEFINED THE TERM "MEMBER OF THE ARMED FORCES" TO MEAN --

"* * * ANY MEMBER OF THE ARMY OR NAVY OF THE UNITED STATES, THE UNITED STATES MARINE CORPS, THE UNITED STATES COAST GUARD OR ANY OF THEIR RESPECTIVE COMPONENTS * * *.'

WHILE YOU MENTION THE PHILIPPINE SCOUTS AND THE USAFFE, CORRESPONDENCE FROM YOU INDICATES THAT THE SERVICE YOU PERFORMED WAS NOT AS A MEMBER OF ONE OF THE ORGANIZATIONS MENTIONED ABOVE, BUT RATHER AS A MEMBER OF THE PHILIPPINE ARMY. IF THAT IS CORRECT, NO RIGHT TO MUSTERING-OUT PAY WOULD HAVE ACCRUED TO YOU UNDER ANY OF THE PROVISIONS OF LAW RELATING THERETO. WE ARE NOT AWARE OF ANY LAW WHICH WOULD ENTITLE YOU, AS A MEMBER OF THE PHILIPPINE ARMY SERVING WITH THE USAFFE, TO RECEIVE MUSTERING-OUT PAY DIRECTLY FROM THE UNITED STATES GOVERNMENT. IF YOU DID SERVE AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES, PAYMENT OF YOUR CLAIM IS BARRED BY THE 1940 ACT.

FUNDS FOR PAYMENT OF ITEMS OF PAY AND ALLOWANCES AUTHORIZED FOR MEMBERS OF THE ORGANIZED MILITARY FORCES OF THE COMMONWEALTH OF THE PHILIPPINES SERVING IN WORLD WAR II WERE APPROPRIATED BY THE UNITED STATES GOVERNMENT AND TRANSFERRED TO THE PHILIPPINE GOVERNMENT FOR PAYMENT. IN THIS REGARD, AN AGREEMENT BETWEEN THE UNITED STATES AND THE REPUBLIC OF THE PHILIPPINES ENTITLED ,SETTLEMENT OF VETERANS CLAIMS" BECAME EFFECTIVE ON JUNE 29, 1967. THAT AGREEMENT PROVIDED FOR THE PAYMENT OF FUNDS BY THE UNITED STATES TO THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES IN FULL SETTLEMENT OF VARIOUS CLAIMS FOR BACK PAY AND ALLOWANCES ARISING FROM MILITARY SERVICE BY MEMBERS OF THE PHILIPPINE ARMY AND RECOGNIZED PHILIPPINE GUERILLAS DURING WORLD WAR II WHO HAD NOT BEEN PREVIOUSLY PAID AND WHOSE NAMES APPEARED ON THE UNITED STATES APPROVED REVISED FINAL ROSTER OF MARCH 1948.

SHOULD YOU HAVE A VALID CLAIM FOR PAYMENT OUT OF THE ABOVE MENTIONED FUNDS, SUCH CLAIM SHOULD BE SUBMITTED TO THE PHILIPPINE GOVERNMENT. KNOW OF NO OTHER AUTHORITY FOR PAYMENT OF YOUR CLAIM.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO ACTION WE LEGALLY MAY TAKE IN THE MATTER.