B-171080, NOV. 17, 1970

B-171080: Nov 17, 1970

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THE CLAIM IS BARRED BY THE ACT OF OCTOBER 9. SINCE CLAIM WAS NOT RECEIVED BY GAO WITHIN THE TEN YEARS AFTER CLAIM FIRST ACCURED AS REQUIRED BY THE ACT. REYES: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 8. THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MARCH 28. IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY WAS BARRED BY THE ACT OF OCTOBER 9. ARE CONTAINED IN PARAGRAPHS 313-322. THOSE REGULATIONS HAVE NO APPLICATION TO THE PROVISIONS OF THE ACT OF OCTOBER 9. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9. EXTENDED THE TIME LIMITATION FOR FILING MUSTERING-OUT PAYMENT CLAIMS WITH RESPECT TO A SMALL GROUP OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR REGULAR AIR FORCE AFTER JUNE 26.

B-171080, NOV. 17, 1970

MUSTERING-OUT PAY REAFFIRMING THE DENIAL OF CLAIM FOR MUSTERING-OUT PAY FOR FILIPINO WHO SERVED IN USAFFE DURING WORLD WAR II. THE CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, SINCE CLAIM WAS NOT RECEIVED BY GAO WITHIN THE TEN YEARS AFTER CLAIM FIRST ACCURED AS REQUIRED BY THE ACT.

TO MR. LORETO A. REYES:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 8, 1969, AND SEPTEMBER 9, 1970, REQUESTING RECONSIDERATION OF THE ACTION HERETOFORE TAKEN ON YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO SERVICE IN THE USAFFE DURING WORLD WAR II.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MARCH 28, 1969, AND SEPTEMBER 12, 1969, IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE) SHALL BE FOREVER BARRED UNLESS SUCH CLAIM BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED.

IN SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY, YOU CONTEND THAT YOUR CLAIM "FALLS UNDER ACT 263-88TH CONGRESS DATED JANUARY 9, 1963 APPROVED SEPTEMBER 30, 1965 - PROVISION OF 311-522 OF MUSTERING OUT PAY LAW."

APPLICABLE REGULATIONS ISSUED BY THE DEPARTMENT OF THE ARMY 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.) ARE CONTAINED IN PARAGRAPHS 313-322, T.M. 14-502. THOSE REGULATIONS HAVE NO APPLICATION TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940.

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.

PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, EXTENDED THE TIME LIMITATION FOR FILING MUSTERING-OUT PAYMENT CLAIMS WITH RESPECT TO A SMALL GROUP OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR REGULAR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY FOR SERVICE DURING THE KOREAN CONFLICT BECAUSE OF THEIR FAILURE TO MAKE APPLICATION PRIOR TO THE STATUTORY DEADLINE OF JULY 17, 1959. SINCE YOU WERE DISCHARGED FROM MILITARY SERVICE ON OCTOBER 31, 1947, WHICH WAS PRIOR TO THE KOREAN CONFLICT, THIS LAW HAS NO APPLICATION IN YOUR CASE.

THE MUSTERING-OUT PAYMENT ACT OF 1944, AUTHORIZED THE PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO ENGAGED IN ACTIVE SERVICE FOR VARIOUS PERIODS OF TIME DURING WORLD WAR II. 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 PAST CORRESPONDENCE YOU HAVE ALSO INDICATED THAT THE SERVICE YOU PERFORMED WAS NOT AS A MEMBER OF ONE OF THE ORGANIZATIONS MENTIONED ABOVE, BUT RATHER AS A MEMBER OF THE PHILIPPINE ARMY. BY AGREEMENT BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES, CLAIMS FOR PAY AND ALLOWANCES FOR MEMBERS OF THE ORGANIZED MILITARY FORCES OF THE COMMONWEALTH OF THE PHILIPPINES SERVING IN WORLD WAR II ARE FOR PAYMENT BY THE PHILIPPINE GOVERNMENT. SHOULD YOU HAVE A VALID CLAIM UNDER THAT AGREEMENT IT SHOULD BE SUBMITTED TO THE PHILIPPINE GOVERNMENT.

INSOFAR AS YOUR CLAIM AGAINST THE UNITED STATES IS CONCERNED, THE CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON NOVEMBER 22, 1968, MORE THAN 21 YEARS AFTER YOUR DISCHARGE. CONSEQUENTLY, CONSIDERATION OF THE CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, AND THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.