B-168249, NOV. 18, 1969

B-168249: Nov 18, 1969

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JUATCO: FURTHER REFERENCE IS MADE TO YOUR LETTER ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER. WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY AND RECEIVED SEPTEMBER 4. OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED APRIL 24. IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9. IN SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY YOU CONTEND THAT SUCH PAY IS "AUTHORIZED UNDER THE PROVISIONS OF ACT NO. 263. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9. YOU HAVE REFERENCE TO PUBLIC LAW 89-50. 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.

B-168249, NOV. 18, 1969

TO DR. BENVENUTO T. JUATCO:

FURTHER REFERENCE IS MADE TO YOUR LETTER ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY AND RECEIVED SEPTEMBER 4, 1969, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $3,600 BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE USAFFE.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED APRIL 24, 1968, AND MARCH 25, 1969, 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, 3. U.S.C. 71A. THAT ACT PROVIDES IN PERTINENT PART:

"/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 CONNECTION WITH THE ABOVE-QUOTED ACT, 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 UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

IN SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY YOU CONTEND THAT SUCH PAY IS "AUTHORIZED UNDER THE PROVISIONS OF ACT NO. 263, OF THE 88TH CONGRESS DATED 9 JANUARY 1963 APPROVED ON SEPTEMBER 30, 1965," AND UNDER PARAGRAPHS 311-322, TM 14-502, AUGUST 1946, RELATING TO PAYMENTS UNDER THE MUSTERING- OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.).

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 PAY. THAT ACT READS 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 WAS 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 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.

YOU STATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE IN 1954, BUT INDICATE THAT THIS WAS A DISCHARGE FROM THE PHILIPPINE ARMY. WHILE THE PHILIPPINE ARMY WAS A PART OF ARMED FORCES IN THE SERVICE OF THE UNITED STATES IN THE FAR EAST DURING WORLD WAR II, SUCH MEMBERS WERE NOT MEMBERS OF THE ARMY OF THE UNITED STATES. LOGRONIO V UNITED STATES, 133 F.SUPP. 395 (1955). MUSTERING-OUT PAY WAS AUTHORIZED BY THE 1944 ACT TO MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO OTHERWISE QUALIFIED AND, THEREFORE, SUCH PAYMENT WAS NOT AUTHORIZED INCIDENT TO YOUR SERVICE IN THE PHILIPPINE ARMY.

THE RECORD OF YOUR SERVICE IS NOT CLEAR, BUT EVEN IF YOU CAME UNDER SECTION 14 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 543, PROVIDING FOR ENLISTMENTS IN THE PHILIPPINE SCOUTS FOR THREE YEARS, YOU APPARENTLY WOULD HAVE BEEN DISCHARGED FROM SUCH ENLISTMENT NOT LATER THAN 1949. THEREFORE, NEITHER CHAPTER 43 OF TITLE 38, U.S. CODE, NOR PUBLIC LAW 89-50 HAS ANY APPLICATION IN YOUR CASE.

ANY MUSTERING-OUT PAY TO WHICH YOU MAY HAVE BEEN ENTITLED ACCRUED TO YOU BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, SUPRA, SECTION 2 (A) (1) OF WHICH PROVIDED FOR A MAXIMUM PAYMENT OF $300 TO PERSONS WHO SERVED 60 DAYS OR MORE AND SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. HOWEVER, IF YOU WERE ENTITLED TO MUSTERING-OUT PAY UNDER THAT ACT, SUCH ENTITLEMENT WAS SUBJECT TO THE TIME LIMITATION IMPOSED BY THE 1940 ACT, WHICH BARS CONSIDERATION OF EVERY CLAIM NOT RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS OF THE DATE SUCH CLAIM FIRST ACCRUED.

AS STATED ABOVE, YOU SAY YOU WERE DISCHARGED FROM THE PHILIPPINE ARMY IN 1954; HOWEVER, IF YOU SERVED IN THE ARMY OF THE UNITED STATES YOU PRESUMABLY WERE DISCHARGED THEREFROM NOT LATER THAN 1949. THUS, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM DURING OR BEFORE 1959 IN ORDER TO AVOID THE BAR OF THE 1940 ACT. OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED HERE ON APRIL 12, 1968, WHICH IS WELL BEYOND THE 10-YEAR BAR ON SUCH CLAIMS.

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