B-171549, DEC. 30, 1970

B-171549, DEC. 30, 1970

MUSTERING-OUT PAY DENIAL OF CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO SERVICE IN THE PHILIPPINE SCOUTS DURING WORLD WAR II ON BASIS THAT CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A. WHERE THE CLAIM IS NOT RECEIVED WITHIN 10 YEARS FROM THE DATE IT ACCURED, IT IS BARRED BY THE ACT.

TO MR. JULIAN J. ARIZO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1969, ADDRESSED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, AND FORWARDED TO OUR OFFICE RELATIVE TO YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE YOU AT TIME OF YOUR DISCHARGE AS A PHILIPPINE SCOUT IN MARCH 1946.

YOU CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 12, 1968. SINCE, ON SEPTEMBER 12, 1968, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE (MARCH 1946, THE DATE ON WHICH ANY CLAIM YOU MAY HAVE HAD ACCRUED), OUR CLAIMS DIVISION RETURNED IT TO YOU BY LETTER DATED OCTOBER 31, 1968, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A READS, IN PERTINENT PART, AS FOLLOWS:

"(1) EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. ***

"(2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION."

ON JANUARY 3, 1969, YOU WROTE TO THIS OFFICE CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY AND BY LETTER OF FEBRUARY 24, 1969, OUR CLAIMS DIVISION AGAIN ADVISED YOU THAT YOUR CLAIM WAS BARRED. IN THE LETTER IT WAS ALSO EXPLAINED THAT THE FACT THAT YOU WERE NOT ACQUAINTED WITH THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, DID NOT AFFORD THIS OFFICE A LEGAL BASIS FOR CONSIDERATION OF YOUR CLAIM FOR THE REASON THAT NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSIONS OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED.

IN YOUR PRESENT LETTER YOU PLACE RELIANCE ON "ACT NO. 263 OF THE 88TH CONGRESS DATED 9 JANUARY 1963, AND APPROVED SEPTEMBER 30, 1965," AND CERTAIN ADMINISTRATIVE REGULATIONS PROMULGATED PURSUANT TO THE MUSTERING- OUT PAYMENT ACT OF 1944 AS AFFORDING THE BASIS FOR PAYMENT OF YOUR CLAIM. WHILE WE ARE UNABLE TO IDENTIFY THE FIRST ACT, THIS DOES NOT APPEAR MATERIAL FOR THE REASON THAT ANY MUSTERING-OUT PAY TO WHICH YOU MAY HAVE BEEN ENTITLED ACCRUED TO YOU BY VIRTUE OF THE MUSTERING OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.). CLAIMS UNDER THAT ACT ARE SUBJECT TO THE TIME LIMITATIONS OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT SUCH CLAIMS BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DATE THE CLAIM FIRST ACCRUES.

ANY CLAIM YOU HAD FOR MUSTERING-OUT PAY ACCRUED IN MARCH 1946, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED IT BEFORE MARCH 1956. SINCE YOUR CLAIM WAS NOT RECEIVED HERE UNTIL SEPTEMBER 12, 1968, OR MORE THAN 10 YEARS AFTER IT ACCRUED, WE MUST AGAIN ADVISE YOU THAT IT IS BARRED AND THAT THERE IS NO ACTION WE MAY TAKE IN THE MATTER.