B-171138, NOV. 17, 1970

B-171138, NOV. 17, 1970

MUSTERING-OUT PAY REAFFIRMING THE DENIAL OF CLAIM FOR MUSTERING-OUT PAY FOR FILIPINO WHO SERVED FOR THE U.S. DURING WORLD WAR II AS A PHILIPPINE SCOUT. THE CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, SINCE CLAIM WAS NOT RECEIVED BY THE GAO WITHIN THE TEN YEARS AFTER CLAIM FIRST ACCURED AS REQUIRED BY THE ACT, NOR DOES PUBLIC LAW 89-50 WHICH EXTENDS TIME FOR FILING MUSTERING-OUT PAY CLAIMS TO A SMALL GROUP OF OFFICERS FOR SERVICE IN THE KOREAN CONFLICT, APPLY IN THIS CASE.

TO MR. IGNACIO B. BERSAMINA:

FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, CONCERNING YOUR CLAIM FOR MUSTERING OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS ON APRIL 6, 1947.

THIS MATTER WAS THE SUBJECT OF A LETTER FROM OUR CLAIMS DIVISION DATED SEPTEMBER 22, 1958, AND OF A PRIOR LETTER, 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 THIS CONNECTION, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

IN SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY, YOU SAY THAT THIS PAY IS "AUTHORIZED UNDER THE PROVISIONS OF PL 263, 88TH CONGRESS DATED JAN. 9, 1963 AND APPROVED ON SEPT. 30, 1965." ALSO, YOU REFER TO THE PROVISIONS OF "311-322 OF T.M. 502 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. THESE 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 PAYMENT 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 APRIL 6, 1947, WHICH WAS PRIOR TO THE KOREAN CONFLICT, THIS LAW HAS NO APPLICATION IN YOUR CASE.

IN YOUR LETTER OF AUGUST 11, 1958, YOU INDICATED THAT YOU HAD RECEIVED MUSTERING-OUT PAY BUT THAT YOU MIGHT HAVE BEEN ENTITLED TO AN ADDITIONAL AMOUNT. THERE ARE NO RECORDS AVAILABLE TO US WHICH INDICATE THAT YOU WERE NOT PAID ALL THE MUSTERING-OUT PAY TO WHICH YOU WERE ENTITLED. HOWEVER THAT MAY BE, CONSIDERATION OF YOUR CLAIM WHICH WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 25, 1958, MORE THAN 11 YEARS AFTER YOUR DISCHARGE, IS BARRED BY THE ACT OF OCTOBER 9, 1940, AND THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.