B-168641, JAN. 5, 1970

B-168641, JAN. 5, 1970

MILITARY--MUSTERING-OUT PAY--WORLD WAR II DECISION TO CLAIMANT ADVISING THAT IF HE WERE ENTITLED TO MUSTERING OUT PAY UNDER MUSTERING-OUT PAYMENT ACT OF 1944, FOR DISCHARGE ON MAY 16, 1946, CLAIM WOULD BE SUBJECT TO 1940 BARRED ACT SINCE IT WAS NOT RECEIVED BY GAO WITHIN 10 YEARS AFTER DATE OF ACCRUAL.

TO MR. SANTIAGO P. CASTILLO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 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 THE PHILIPPINE SCOUTS IN 1946. YOUR LETTER WAS FORWARDED TO OUR OFFICE FOR REPLY AND WAS RECEIVED HERE ON SEPTEMBER 8, 1969.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED AUGUST 7, 1968, AND OCTOBER 22, 1968, IN WHICH YOU WERE ADVISED THAT THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, BARS CONSIDERATION OF YOUR CLAIM BY THIS OFFICE DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD THERE PRESCRIBED. YOU WERE FURTHER ADVISED THAT YOUR LACK OF KNOWLEDGE OF THAT ACT, WAS NOT A LEGAL BASIS FOR THE CONSIDERATION OF YOUR CLAIM, SINCE THIS OFFICE IS WITHOUT AUTHORITY TO WAIVE ANY PROVISION OF THE 1940 ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION IMPOSED.

YOU NOW CONTEND THAT YOU ARE ENTITLED TO MUSTERING-OUT PAY "UNDER THE PROVISIONS OF ACT. NO. 263, OF THE 88TH CONGRESS DATED 9 JANUARY 1963 APPROVED ON SEPTEMBER 30, 1965." WE CANNOT 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 OF 311-322 OF T.M. 502 MUSTERING OUT PAY LAW." PRESUMABLY, YOU HAVE REFERENCE TO REGULATIONS CONTAINED IN TM 14-502, CHAPTER 10, SECTION V, MUSTERING-OUT PAYMENTS, WHICH WERE 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). 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 IN 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.

YOU STATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON MAY 16, 1946. IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM ON OR BEFORE MAY 16, 1956, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. IN VIEW OF THE FACT THAT YOUR CLAIM WAS FIRST RECEIVED HERE ON JULY 29, 1968, MORE THAN 22 YEARS AFTER YOUR DISCHARGE, THERE IS NO FURTHER ACTION THIS OFFICE MAY TAKE ON SUCH CLAIM.