B-168860, FEB. 19, 1970

B-168860: Feb 19, 1970

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GALICIA: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 22. YOUR LETTERS WERE FORWARDED TO OUR OFFICE FOR REPLY AND WERE RECEIVED HERE ON SEPTEMBER 25. THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JANUARY 6. IN THESE LETTERS YOU WERE INFORMED THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THE ACT OF OCTOBER 9. DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD THERE PRESCRIBED. YOU CONTEND THAT YOU ARE ENTITLED TO PAYMENT "UNDER THE PROVISION OF ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9. YOU HAVE REFERENCE TO REGULATIONS CONTAINED IN TM 14- 502.

B-168860, FEB. 19, 1970

MILITARY--MUSTERING-OUT PAY--BARRED CLAIM DECISION HOLDING THAT CLAIM FOR ADDITIONAL MUSTERING-OUT PAY INCIDENT TO DISCHARGE FROM PHILIPPINE SCOUTS MAY NOT BE CONSIDERED IN VIEW OF BARRED ACT, 31 U.S.C. 71A.

TO MR. EUSEBIO C. GALICIA:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 22, 1969, AND SEPTEMBER 1, 1969, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, CONCERNING YOUR CLAIM FOR ADDITIONAL MUSTERING OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1949. YOUR LETTERS WERE FORWARDED TO OUR OFFICE FOR REPLY AND WERE RECEIVED HERE ON SEPTEMBER 25, 1969, AND SEPTEMBER 29, 1969, RESPECTIVELY.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JANUARY 6, 1965, AND JUNE 14, 1967. IN THESE LETTERS YOU WERE INFORMED THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD THERE PRESCRIBED.

IN YOUR LETTER OF SEPTEMBER 1, 1969, YOU CONTEND THAT YOU ARE ENTITLED TO PAYMENT "UNDER THE PROVISION OF ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9, 1963, AND APPROVED 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 "PROVISION OF 311-322 OF TM 502 MUSTERING-OUT PAY LAW." PRESUMABLY, YOU HAVE REFERENCE TO REGULATIONS CONTAINED IN TM 14- 502, CHAPTER 10, SECTION V, MUSTERING-OUT PAYMENTS, WHICH RELATE TO 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 IN ALASKA.

IN YOUR LETTER OF JULY 22, 1969, YOU CONTENDED THAT THE ACT OF JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT. 173, EXTENDED THE TIME FOR FILING CERTAIN CLAIMS FOR MUSTERING-OUT PAYMENTS. SECTION 2 OF THAT ACT WAS ENACTED AS A RESULT OF A COURT OF CLAIMS DECISION IN 1966 WHICH ALLOWED A PERIOD OF TIME TO A RELATIVELY SMALL NUMBER OF OFFICERS TO APPLY FOR AND BE PAID MUSTERING-OUT PAYMENTS IN CONNECTION WITH ACTIVE SERVICE DURING THE KOREAN CONFLICT. SINCE YOU STATE YOU WERE DISCHARGED ON FEBRUARY 1, 1949, AND APPARENTLY PERFORMED NO DUTY IN KOREA, THAT ACT HAS NO BEARING ON YOUR CASE.

WITHOUT REGARD TO THE MERITS OF A CLAIM, THIS OFFICE MAY NOT MAKE AN EXCEPTION TO THE PROVISIONS OF THE 1940 STATUTE REFERRED TO ABOVE, OR GRANT AN EXTENSION OF THE TIME WITHIN WHICH CLAIMS MUST BE FILED. THAT ACT PROHIBITS CONSIDERATION OF ANY CLAIM WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

SINCE YOU STATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON FEBRUARY 1, 1949, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM ON OR BEFORE FEBRUARY 1, 1959, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. IN VIEW OF THE FACT THAT YOUR CLAIM WAS FIRST RECEIVED HERE ON APRIL 8, 1960, MORE THAN 11 YEARS AFTER YOUR DISCHARGE, THERE IS NO FURTHER ACTION THIS OFFICE MAY TAKE ON SUCH CLAIM.