B-168051, OCT. 30, 1969

B-168051, OCT. 30, 1969

TO MR. ANTONIO P. AYING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1969, IN EFFECT APPEALING THE ACTION TAKEN BY THIS OFFICE ON YOUR CLAIM FOR MUSTERING OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR MILITARY SERVICE WITH THE UNITED STATES FORCES FAR EAST DURING WORLD WAR II.

OUR RECORDS SHOW THAT ON SEPTEMBER 8, 1967, YOU PRESENTED A CLAIM TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ON THE BASIS OF YOUR MILITARY SERVICE DURING THE PERIOD DECEMBER 26, 1941, TO MAY 31, 1946. THE FINANCE CENTER FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION WHERE IT WAS RECEIVED ON JANUARY 2, 1968.

SINCE ON JANUARY 2, 1968, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE, MAY 31, 1946 (THE DATE ON WHICH ANY CLAIM YOU MAY HAVE HAD ACCRUED), OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU ON JANUARY 12, 1968, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, AND ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, READS IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN A LETTER DATED MARCH 5, 1968, YOU ADVISED THE CLAIMS DIVISION THAT THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, WERE NOT KNOWN TO YOU IN 1946, AND THEREFORE, SHOULD NOT BE APPLIED. BY LETTER OF MARCH 27, 1968, OUR CLAIMS DIVISION EXPLAINED THE EFFECT OF THE ACT OF OCTOBER 9, 1940, AND AGAIN ADVISED YOU THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THAT ACT BECAUSE YOUR CLAIM WAS NOT FILED IN PROPER TIME. IN THAT LETTER YOU WERE ADVISED THAT THE FACT THAT YOU WERE NOT ACQUAINTED WITH THE ABOVE-CITED ACT CONSTITUTES NO LEGAL BASIS ON WHICH THIS OFFICE MAY GIVE CONSIDERATION TO YOUR CLAIM, SINCE THE 1940 ACT MAKES NO EXCEPTION WHICH WOULD PERMIT FAVORABLE ACTION ON CLAIMS OF INDIVIDUALS WHO BELATEDLY LEARN OF THEIR RIGHTS. YOU WERE FURTHER ADVISED THAT THE GENERAL ACCOUNTING OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THE ABOVE ACT AND, THEREFORE, NO EXCEPTIONS TO ITS PROVISIONS COULD BE MADE.

IN YOUR PRESENT LETTER YOU PLACE RELIANCE ON "ACT NO. 263, 88TH CONGRESS DATED JANUARY 9, 1963 AND APPROVED ON SEPTEMBER 30, 1965," CERTAIN ADMINISTRATIVE REGULATIONS PROMULGATED PURSUANT TO THE MUSTERING-OUT PAYMENT ACT OF 1944, AND SECTION 14 OF PUBLIC LAW 190, 79TH CONGRESS, APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 543. WHILE WE ARE UNABLE TO IDENTIFY THE FIRST ACT, THIS DOES NOT APPEAR MATERIAL FOR THE REASON SHOWN BELOW. SECTION 14 OF THE LATTER ACT DOES NOT PERTAIN TO 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 PHILIPPINE ISLANDS AND CERTAIN AREAS OUTSIDE THE PHILIPPINES ON OR AFTER OCTOBER 6, 1945. THEREFORE, THAT PROVISION OF LAW HAS NO BEARING ON YOUR CLAIM.

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.). CLAIMS UNDER THAT ACT ARE SUBJECT TO THE TIME LIMITATIONS 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 FIRST ACCRUES.

ANY CLAIM YOU HAD FOR MUSTERING-OUT PAY ACCRUED ON MAY 31, 1946, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED IT BEFORE MAY 31, 1956. SINCE IT WAS NOT RECEIVED HERE UNTIL JANUARY 2, 1968, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO ADVISE YOU THAT CONSIDERATION THEREOF WAS BARRED. THE FACT THAT YOU MAY HAVE BEEN UNAWARE OF THE 1940 ACT AFFORDS NO LEGAL BASIS FOR OUR CONSIDERATION OF YOUR CLAIM.

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