B-168597, JAN. 5, 1970

B-168597, JAN. 5, 1970

MILITARY--MUSTERING-OUT PAY--WORLD WAR II DECISION TO CLAIMANT CONCERNING MUSTERING-OUT PAY CLAIM INCIDENT TO DISCHARGE AS PHILIPPINE SCOUT IN 1949. IN VIEW OF FACT THAT CLAIM IS BARRED UNDER THE 1940 BARRED ACT, ACTION IS PROHIBITED.

TO MR. AVELINO CORDERO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 13, 1969, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $3,600 BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1949.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JULY 19, 1965, AND JULY 27, 1967, 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 PART:

"(1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * 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 PROVISION OF ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9, 1963 AND APPROVED ON SEPTEMBER 30, 1968" AND YOU ALSO REFER TO THE PROVISIONS OF "311-322 OF T.M. 502 MUSTERING OUT PAY LAW." APPLICABLE REGULATIONS ISSUED BY THE DEPARTMENT OF THE ARMY 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, T.M. 14-502.

NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31, 1964) NOR ANY LAW ENACTED ON SEPTEMBER 30, 1968, 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 BECAUSE OF THEIR FAILURE TO MAKE APPLICATION PRIOR TO THE STATUTORY DEADLINE OF JULY 17, 1959. INASMUCH AS YOU STATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON MARCH 22, 1949, WHICH WAS PRIOR TO THE KOREAN CONFLICT, 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, 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. IN 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 IN THE PHILIPPINE SCOUTS UNDER SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 543. HOWEVER, 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 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 FIRST ACCRUED. SINCE YOU INDICATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON MARCH 22, 1949, ANY CLAIM YOU MAY HAVE HAD ACCRUED ON THAT DATE. HENCE, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM ON OR BEFORE MARCH 22, 1959, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED HERE ON JULY 7, 1965, MORE THAN 16 YEARS AFTER THE DATE OF YOUR DISCHARGE.

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