B-169397, APR. 15, 1970

B-169397: Apr 15, 1970

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APOLONIA VDA DE TUPAS: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 15. OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MAY 21 AND OCTOBER 30. IN WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER THAT CLAIM SINCE THE ACT OF OCTOBER 9. THE CLAIM WAS RECEIVED HERE JANUARY 8. CONTENDING THAT THE RIGHT TO MUSTERING-OUT PAY IS BASED UPON PUBLIC LAW 88-263. THAT YOUR CLAIM WAS RECEIVED HERE WELL WITHIN THE 10 YEAR PERIOD FOLLOWING THAT DATE. WAS THE MUSTERING-OUT PAYMENT ACT OF 1944. WHILE YOU HAVE MENTIONED THE USAFFE IN SEVERAL LETTERS IN CONNECTION WITH YOUR LATE HUSBAND'S MILITARY SERVICE. INDICATED THAT HIS SERVICE WAS NOT AS A MEMBER OF ONE OF THE ORGANIZATIONS MENTIONED IN THE 1944 ACT QUOTED ABOVE.

B-169397, APR. 15, 1970

TO MRS. APOLONIA VDA DE TUPAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 15, 1969, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE YOUR HUSBAND, THE LATE SATURNINO TUPAS, INCIDENT TO HIS DISCHARGE FROM MILITARY SERVICE IN APRIL 1946.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MAY 21 AND OCTOBER 30, 1969, IN WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER THAT CLAIM SINCE THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, BARS CONSIDERATION OF ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE CLAIM WAS RECEIVED HERE JANUARY 8, 1969, MORE THAN 22 YEARS AFTER THE DATE OF YOUR HUSBAND'S DISCHARGE.

YOU ASSERT THAT YOUR CLAIM HAS BEEN TIMELY FILED, CONTENDING THAT THE RIGHT TO MUSTERING-OUT PAY IS BASED UPON PUBLIC LAW 88-263, APPROVED JANUARY 31, 1964, AND THAT YOUR CLAIM WAS RECEIVED HERE WELL WITHIN THE 10 YEAR PERIOD FOLLOWING THAT DATE.

PUBLIC LAW 88-263, 78 STAT. 7, DOES NOT IN ANY WAY RELATE TO MUSTERING- OUT PAY. THE LAW WHICH AUTHORIZED PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO ENGAGED IN ACTIVE SERVICE DURING WORLD WAR II, WAS THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED JANUARY 3, 1944, CH. 9 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.). 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 HAVE MENTIONED THE USAFFE IN SEVERAL LETTERS IN CONNECTION WITH YOUR LATE HUSBAND'S MILITARY SERVICE, YOUR LETTER DATED NOVEMBER 4, 1968, INDICATED THAT HIS SERVICE WAS NOT AS A MEMBER OF ONE OF THE ORGANIZATIONS MENTIONED IN THE 1944 ACT QUOTED 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 HIM UNDER ANY OF THE PROVISIONS OF THE LAW RELATING TO SUCH PAY. WE ARE NOT AWARE OF ANY LAW UNDER WHICH MEMBERS OF THE PHILIPPINE ARMY SERVING WITH THE USAFFE WERE ENTITLED TO RECEIVE MUSTERING-OUT PAY DIRECTLY FROM THE UNITED STATES GOVERNMENT AND IF YOUR HUSBAND SERVED AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES, PAYMENT OF MUSTERING-OUT PAY IS BARRED BY THE 1940 ACT.

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 THAT 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.