B-170438, AUG. 14, 1970

B-170438: Aug 14, 1970

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CLAIM BY A FORMER PHILIPPINE MEMBER OF THE UNIFORMED SERVICES FOR MUSTERING-OUT PAY IS BARRED FROM CONSIDERATION SINCE IT WAS NOT FILED WITHIN THE 10 YEAR LIMITATION PERIOD. SIMEON OPINIANO: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23. YOUR LETTER WAS SENT THROUGH THE PRESIDENT OF THE PHILIPPINES AND THE VETERANS ADMINISTRATION. THIS MATTER WAS THE SUBJECT OF A LETTER FROM OUR CLAIMS DIVISION DATED SEPTEMBER 30. IN THAT LETTER YOU WERE ADVISED OF THE PROVISIONS OF THE ACT OF OCTOBER 9. WHICH BAR 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 PRESCRIBED IN THAT ACT. YOU CONTEND THAT YOU ARE ENTITLED TO MUSTERING-OUT PAY UNDER THE PROVISIONS OF "ACT NO. 263 OF 88TH CONGRESS DATED 9 JANUARY 1963 APPROVAL SEPTEMBER 30.

B-170438, AUG. 14, 1970

BARRED CLAIM -- MUSTERING-OUT PAY DECISION TO A FORMER PHILIPPINE MEMBER OF THE UNIFORMED SERVICES, SUSTAINING DISALLOWANCE OF CLAIM FOR MUSTERING-OUT PAY INCIDENT TO DISCHARGE FROM THE MILITARY SERVICE IN 1950. CLAIM BY A FORMER PHILIPPINE MEMBER OF THE UNIFORMED SERVICES FOR MUSTERING-OUT PAY IS BARRED FROM CONSIDERATION SINCE IT WAS NOT FILED WITHIN THE 10 YEAR LIMITATION PERIOD.

TO MR. SIMEON OPINIANO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1970, ADDRESSED TO OUR OFFICE, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM MILITARY SERVICE IN 1950. YOUR LETTER WAS SENT THROUGH THE PRESIDENT OF THE PHILIPPINES AND THE VETERANS ADMINISTRATION, MANILA.

THIS MATTER WAS THE SUBJECT OF A LETTER FROM OUR CLAIMS DIVISION DATED SEPTEMBER 30, 1969. IN THAT LETTER YOU WERE ADVISED 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 DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10 YEAR LIMITATION PERIOD PRESCRIBED IN THAT ACT.

YOU CONTEND THAT YOU ARE ENTITLED TO MUSTERING-OUT PAY UNDER THE PROVISIONS OF "ACT NO. 263 OF 88TH CONGRESS DATED 9 JANUARY 1963 APPROVAL 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 311-312 OF T.H. 502 OF THE 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 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. 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 IN NOVEMBER 1950. ANY CLAIM YOU MAY HAVE HAD TO MUSTERING-OUT PAY ACCRUED AT THAT TIME AND IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM WITHIN 10 YEARS AFTER THE DATE OF YOUR DISCHARGE IN ORDER TO AVOID THE BAR OF THE 1940 ACT. IN VIEW OF THE FACT THAT YOUR CLAIM WAS FIRST RECEIVED HERE ON SEPTEMBER 3, 1969, MORE THAN 18 YEARS AFTER THE DATE OF YOUR DISCHARGE, THERE IS NO FURTHER ACTION THIS OFFICE MAY TAKE ON SUCH CLAIM. THE FACT THAT YOU WERE NOT AWARE OF THE PROVISIONS OF THE 1940 ACT UNTIL RECEIPT OF THE LETTER OF SEPTEMBER 30, 1969, DOES NOT FURNISH A LEGAL BASIS FOR THE CONSIDERATION OF YOUR CLAIM.