B-168849, FEB. 10, 1970

B-168849, FEB. 10, 1970

MILITARY--MUSTERING-OUT PAY--PHILIPPINE SCOUT INDIVIDUAL WHO SUBMITTED CLAIM FOR MUSTERING-OUT PAY BASED ON SERVICE IN PHILIPPINE SCOUTS IN WORLD WAR II MORE THAN 10 YEARS AFTER DATE OF DISCHARGE MAY NOT HAVE CLAIM CONSIDERED IN VIEW OF BARRED ACT, 31 U.S.C. 71A.

TO MR. BEUNAVENTURA H. BALANO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1969, ADDRESSED TO THE FINANCE CENTER, U. S. ARMY, INDIANAPOLIS, INDIANA, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS IN WORLD WAR II.

OUR RECORDS SHOW THAT BY LETTER OF AUGUST 28, 1969, YOU PRESENTED A CLAIM FOR MUSTERING-OUT PAY TO THE FINANCE CENTER ON THE BASIS OF MILITARY SERVICE DURING THE PERIOD OCTOBER 15, 1941, TO MARCH 20, 1942. THE FINANCE CENTER FORWARDED THE CLAIM TO THIS OFFICE WHERE IT WAS RECEIVED ON SEPTEMBER 20, 1968. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 10, 1968, FOR THE REASON STATED THEREIN.

BY LETTER OF NOVEMBER 4, 1968, YOU RESTATED YOUR CLAIM TO THE FINANCE CENTER, U. S. ARMY, SAYING THAT YOU WERE DISCHARGED ON FEBRUARY 23, 1946. ALSO AS A BASIS FOR CONSIDERATION OF YOUR CLAIM YOU CITED THE PROVISIONS OF ACT 263-88 CONGRESS DATED JANUARY 9, 1963 AND APPROVED SEPTEMBER 30, 1965, 311-322 OF T.M. 602 MUSTERING OUT PAY LAW (PARAGRAPHS 311-322 OF WAR DEPARTMENT TECHNICAL MANUAL 14-502, AUGUST 1946), AND SECTION 14 OF PUBLIC LAW 190-79TH CONGRESS. THAT LETTER WAS FORWARDED HERE BY THE FINANCE CENTER SUBSEQUENT TO THE SETTLEMENT OF DECEMBER 10, 1968.

SINCE ON SEPTEMBER 20, 1968, THE DATE ON WHICH YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE, FEBRUARY 23, 1946 (THE DATE ON WHICH ANY CLAIM YOU MAY HAVE ACCRUED), OUR CLAIMS DIVISION BY LETTER OF JUNE 9, 1969, ADVISED YOU THAT YOUR CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940, AND FURNISHED YOU A COPY OF THE ACT. ALSO, YOU WERE ADVISED THAT THE LEGISLATION CITED BY YOU HAD NO BEARING ON YOUR CLAIM.

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 YOUR PRESENT LETTER YOU ASK THAT YOUR CLAIM BE CONSIDERED NOTWITHSTANDING THAT YOU WERE LATE IN FILING IT SINCE YOU JUST LEARNED ABOUT MUSTERING-OUT PAY WHEN YOU WENT TO MANILA LAST YEAR AND MET OTHER VETERANS WHO ASKED IF YOU HAD FILED A CLAIM.

WE ARE UNABLE TO IDENTIFY "ACT 263" OF THE 88TH CONGRESS, CITED BY YOU. PUBLIC LAW 88-263 WAS ENACTED ON JANUARY 31, 1964, AND DOES NOT RELATE TO MUSTERING-OUT PAY. ALSO, NO LAW WAS ENACTED ON JANUARY 9, 1963, AND THREE SEPARATE LAWS WHICH WERE ENACTED ON SEPTEMBER 30, 1965, DEAL WITH SUBJECTS OTHER THAN MUSTERING-OUT PAY.

WE FIND NOTHING IN PARAGRAPHS 311-322 OF THE CITED MANUAL WHICH WOULD SERVE AS AUTHORITY FOR THE CONSIDERATION OF YOUR CLAIM. PARAGRAPH 314 OF THE MANUAL AS IT RELATES TO PHILIPPINE SCOUTS SPECIFIES THAT EFFECTIVE MAY 27, 1946, MEMBERS OF THAT ORGANIZATION ENLISTED UNDER THE PROVISIONS OF SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 543, ARE ENTITLED TO MUSTERING-OUT PAYMENTS, EXCEPT THAT FOR THE PURPOSE OF COMPUTING SUCH PAYMENTS FOR SERVICE IN THE PHILIPPINE SCOUTS, SERVICE WHOLLY PERFORMED IN THE PHILIPPINES WILL BE COMPENSATED ON THE SAME BASIS AS SERVICE WHOLLY PERFORMED WITHIN THE UNITED STATES. IT FURTHER SPECIFIES THAT MUSTERING-OUT PAYMENTS UNDER THAT LAW WILL BE PAID AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY THE MUSTERING- OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.)

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 FEBRUARY 23, 1946, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED IT BEFORE FEBRUARY 23, 1956. SINCE IT WAS NOT RECEIVED HERE UNTIL SEPTEMBER 20, 1968, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO ADVISE YOU THAT CONSIDERATION THEREOF WAS BARRED.

THIS OFFICE DOES NOT HAVE ANY POWER OF DISPENSATION UNDER THE 1940 ACT. THEREFORE, EVEN IF YOU WERE UNAWARE OF YOUR RIGHT TO CLAIM MUSTERING-OUT PAY, SUCH FACT WOULD AFFORD NO LEGAL BASIS FOR OUR CONSIDERATION OF YOUR CLAIM.

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