B-168640, MAR. 25, 1970

B-168640: Mar 25, 1970

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NOT HAVING BEEN FILED WITH GAO WITHIN 10 YEARS FROM DATE OF ACCRUAL IS AGAIN DENIED SINCE EVIDENCE INDICATES CLAIMANT SERVED IN PHILIPPINE ARMY AND NO RIGHT TO MUSTERING-OUT PAY WOULD HAVE ACCRUED UNDER ANY PROVISIONS OF LAW RELATING THERETO. SINCE FUNDS FOR PAY AND ALLOWANCES ARISING FROM MILITARY SERVICE WERE TRANSFERRED TO PHILIPPINE GOVERNMENT FOR PAYMENT. MALIXI: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 5. YOUR LETTERS WERE FORWARDED TO OUR OFFICE FOR REPLY. YOUR CLAIM WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JUNE 6. IN THE LATTER LETTER YOU WERE ADVISED THAT THE FACT THAT YOU WERE NOT AWARE OF THE PROVISIONS OF THE ACT OF OCTOBER 9. BECAUSE SUCH CLAIM WAS NOT RECEIVED HERE WITHIN THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THAT ACT.

B-168640, MAR. 25, 1970

GRATUITIES--MUSTERING-OUT PAY--PHILIPPINE SCOUTS--MEMBER OF PHILIPPINE ARMY MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO MILITARY SERVICE DURING WORLD WAR II PREVIOUSLY DISALLOWED AS BEING BARRED BY ACT OF OCT. 9, 1940, NOT HAVING BEEN FILED WITH GAO WITHIN 10 YEARS FROM DATE OF ACCRUAL IS AGAIN DENIED SINCE EVIDENCE INDICATES CLAIMANT SERVED IN PHILIPPINE ARMY AND NO RIGHT TO MUSTERING-OUT PAY WOULD HAVE ACCRUED UNDER ANY PROVISIONS OF LAW RELATING THERETO. SINCE FUNDS FOR PAY AND ALLOWANCES ARISING FROM MILITARY SERVICE WERE TRANSFERRED TO PHILIPPINE GOVERNMENT FOR PAYMENT, ANY VALID CLAIM SHOULD BE SUBMITTED TO IT FOR PAYMENT.

TO MR. JOSE S. MALIXI:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1969, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM MILITARY SERVICE FOLLOWING WORLD WAR II. THERE ALSO HAS BEEN RECEIVED YOUR LETTER OF AUGUST 23, 1969, CONCERNING THIS SAME SUBJECT MATTER. YOUR LETTERS WERE FORWARDED TO OUR OFFICE FOR REPLY.

YOUR CLAIM WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JUNE 6, 1968, AND AUGUST 27, 1968. IN THE LATTER LETTER YOU WERE ADVISED THAT THE FACT THAT YOU WERE NOT AWARE OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH BAR CONSIDERATION OF YOUR CLAIM BY THIS OFFICE--BECAUSE SUCH CLAIM WAS NOT RECEIVED HERE WITHIN THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THAT ACT--WAS NOT A LEGAL BASIS FOR THE CONSIDERATION OF YOUR CLAIM. THIS OFFICE IS WITHOUT AUTHORITY TO WAIVE ANY PROVISION OF THE 1940 ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION THERE IMPOSED.

YOU NOW CONTEND THAT YOU ARE ENTITLED TO MUSTERING-OUT PAY "UNDER THE PROVISIONS OF ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9, 1963 APPROVED SEPTEMBER 30, 1965." WE ARE UNABLE TO IDENTIFY THE LAW TO WHICH YOU REFER. 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.

YOU ALSO REFER TO "THE PROVISIONS 311-322 OF T.M. 502 MUSTERING OUTPAY LAW." PRESUMABLY YOU HAVE REFERENCE TO SECTION V, CHAPTER 10, T.M. 14- 502, WHICH CONTAINS REGULATIONS RELATING TO MUSTERING-OUT 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.). SECTION 2 (A) (1) OF THAT ACT PROVIDED FOR A MAXIMUM PAYMENT OF $300 TO OTHERWISE QUALIFIED PERSONS WHO SERVED 60 DAYS OR MORE AND SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR ALASKA. HOWEVER, IF YOU WERE ENTITLED TO MUSTERING-OUT PAY UNDER THAT ACT, CLAIM THEREFOR, LIKE OTHER CLAIMS FOR MUSTERING-OUT PAY, WAS SUBJECT TO THE TIME LIMITATION IMPOSED BY THE 1940 ACT, WHICH BARS CONSIDERATION OF ANY CLAIM NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

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 RECEIVED FROM YOU AND FROM THE DEPARTMENT OF THE ARMY 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. SHOULD THAT BE CORRECT, IT WOULD APPEAR THAT 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 ENTITLED MEMBERS OF THE PHILIPPINE ARMY SERVING WITH THE USAFFE TO RECEIVE MUSTERING-OUT PAY DIRECTLY FROM THE UNITED STATES GOVERNMENT.

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 CONNECTION AN AGREEMENT BY 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 ARMED FORCES AND RECOGNIZED PHILIPPINE GUERRILLAS 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.

IF YOU BELIEVE YOU HAVE A VALID CLAIM FOR PAYMENT OUT OF THE ABOVE MENTIONED FUNDS, SUCH CLAIM SHOULD BE SUBMITTED TO THE PHILIPPINE GOVERNMENT. THERE IS NO ACTION WE LEGALLY MAY TAKE IN THE MATTER.