B-177254, DEC 22, 1972

B-177254, DEC 22, 1972

MILITARY PERSONNEL - PHILIPPINE SCOUT - MUSTERING OUT PAY - TIME BARRED CLAIM DECISION DENYING THE CLAIM OF FELIPE V. FERNANDEZ FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1949. CLAIMS FOR MUSTERING-OUT PAY ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT A CLAIM MUST BE RECEIVED IN GAO WITHIN 10 FULL YEARS FROM THE DATE THE CLAIM FIRST ACCRUES IN ORDER FOR SUCH CLAIM TO BE RECOGNIZED AND CONSIDERED ON ITS MERITS. SINCE THIS CLAIM ACCRUED IN 1949, AND THE FIRST RECORD OF ITS BEING FILED WITH GAO IS ON JUNE 13, 1970, THE CLAIM MUST BE DENIED.

TO MR. FELIPE V. FERNANDEZ:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 12, 1972, RELATIVE TO YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1949.

OUR FILE SHOWS THAT THE MATTER OF YOUR CLAIM WAS THE SUBJECT OF LETTERS FROM OUR TRANSPORTATION AND CLAIMS DIVISION DATED MARCH 10, 1971, AND MAY 2, 1972. IN OUR LETTER OF MARCH 10 YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY BY THIS OFFICE IS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT PROVIDES IN PERTINENT PART:

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

IN CONNECTION WITH THE ABOVE-QUOTED ACT, 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 OUR LETTER OF MAY 2, 1972, YOU WERE ADVISED THAT FURTHER ACTION COULD NOT BE TAKEN ON YOUR CLAIM BECAUSE THE RECORDS NECESSARY TO JUSTIFY OR REFUTE YOUR CLAIM HAD EITHER BEEN DESTROYED PURSUANT TO LAW, OR HAVE BECOME UNAVAILABLE DUE TO THE LAPSE OF TIME. IN RESPONSE, YOU AGAIN CONTEND THAT YOU HAVE NOT RECEIVED THE FULL AMOUNT OF YOUR MUSTERING-OUT PAY. YOU INDICATE THAT A PAYMENT OF $50 WAS SENT TO YOUR HOME APPROXIMATELY 30 DAYS AFTER YOUR DISCHARGE BUT THAT, SINCE YOU DID NOT RETURN TO YOUR HOME IMMEDIATELY AFTER YOUR DISCHARGE, THE PAYMENT WAS RETURNED BY YOUR LOCAL POST OFFICE TO THE U. S. ARMY.

THIS OFFICE DOES NOT MAINTAIN MILITARY PAY RECORDS AND WE HAVE NO INFORMATION CONCERNING MUSTERING-OUT PAY, IF ANY, TO WHICH YOU MAY HAVE BEEN ENTITLED TO RECEIVE EXCEPT AS SHOWN IN A COPY OF A LETTER DATED JANUARY 29, 1959, TO YOU FROM THE FINANCE CENTER, U. S. ARMY, INDIANAPOLIS, INDIANA. EVEN IF THE RECORDS TO EITHER SUPPORT OR REFUTE YOUR CLAIM WERE AVAILABLE, WE WOULD BE UNABLE TO CONSIDER YOUR CLAIM.

AS WE HAVE PREVIOUSLY POINTED OUT, CLAIMS FOR MUSTERING-OUT PAY ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT A CLAIM MUST BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DATE THE CLAIM FIRST ACCRUES IN ORDER FOR SUCH CLAIM TO BE RECOGNIZED AND CONSIDERED ON ITS MERITS. IF YOU HAD A CLAIM FOR MUSTERING -OUT PAY, SUCH CLAIM ACCRUED NO LATER THAN THE DATE OF YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1949. OUR FILE SHOWS THAT THE FIRST NOTICE WE HAD CONCERNING ANY CLAIM WHICH YOU MAY HAVE HAD FOR MUSTERING-OUT PAY WAS RECEIVED HERE ON JUNE 13, 1970, MORE THAN 20 YEARS AFTER YOUR DISCHARGE.

ANY CLAIM YOU MIGHT HAVE PRESENTED TO ANOTHER AGENCY OF THE GOVERNMENT WOULD NOT BE A COMPLIANCE WITH THE BARRING ACT.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE 1940 BARRING ACT, THE ACTION HERETOFORE TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION WITH RESPECT TO YOUR CLAIM IS SUSTAINED. IN THE CIRCUMSTANCES DISCLOSED, IT APPEARS THAT FURTHER CORRESPONDENCE IN THIS MATTER WOULD SERVE NO USEFUL PURPOSE.