B-84381, SEP. 28, 1964

B-84381: Sep 28, 1964

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SHIELDS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 26. WERE WITHHELD ON THE GROUND THAT THERE WAS NO ENTITLEMENT TO RETIRED PAY FOR PERIODS FOR WHICH ACTIVE DUTY PAY AND ALLOWANCES WERE PAID FOR SERVICE IN THE PHILIPPINE ARMY. LIM'S CLAIM IS WARRANTED ON THE BASIS OF THE ACTION TAKEN BY THE COURT OF CLAIMS IN THE CASE OF CATALAN V. THE PRESIDENT WAS GIVEN AUTHORITY TO ORDER INTO THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES ALL MILITARY FORCES ORGANIZED BY THE PHILIPPINE GOVERNMENT. SUCH ORDER WAS REVOKED. THE PHILIPPINES WERE DECLARED TO BE INDEPENDENT BY A PROCLAMATION OF THE PRESIDENT OF THE UNITED STATES. APPROPRIATIONS WERE MADE BY THE UNITED STATES GOVERNMENT FOR "ALL EXPENSES NECESSARY FOR THE MOBILIZATION.

B-84381, SEP. 28, 1964

TO MR. FRED W. SHIELDS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1964, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 2, 1949, WHICH DISALLOWED THE CLAIM OF MRS. PILAR H. LIM, WIDOW OF THE LATE VICENTE LIM, BRIGADIER GENERAL, INFANTRY, PHILIPPINE ARMY, FOR REFUND OF THE AMOUNTS WITHHELD BY THE PHILLIPINE GOVERNMENT IN THE FINAL SETTLEMENT OF THE ARREARS OF PAY AND ALLOWANCES DUE THE DECEDENT PURSUANT TO THE PROVISIONS OF THE MISSING PERSONS ACT, FOR THE PERIOD MARCH 1, 1942, TO NOVEMBER 11, 1945. SUCH AMOUNTS, WHICH REPRESENTED AMOUNTS PAID TO ALLOTTEES INCIDENT TO GENERAL LIM'S STATUS AS A RETIRED OFFICER OF THE PHILIPPINE SCOUTS (THEN A PART OF THE UNITED STATES ARMY), WERE WITHHELD ON THE GROUND THAT THERE WAS NO ENTITLEMENT TO RETIRED PAY FOR PERIODS FOR WHICH ACTIVE DUTY PAY AND ALLOWANCES WERE PAID FOR SERVICE IN THE PHILIPPINE ARMY. YOU INDICATE YOU BELIEVE FAVORABLE CONSIDERATION OF MRS. LIM'S CLAIM IS WARRANTED ON THE BASIS OF THE ACTION TAKEN BY THE COURT OF CLAIMS IN THE CASE OF CATALAN V. UNITED STATES, CT.CL. NO. 321-59, WHERE, AFTER THE DEFENDANT FILED AN ADMISSION OF LIABILITY BASED UPON THE DECISION IN THE CASE OF LOGRONIO V. UNITED STATES, 132 CT.CL. 596 (1955), THE COURT ENTERED JUDGMENT IN THE PLAINTIFF'S FAVOR ON SEPTEMBER 9, 1960. YOU ALSO REFER TO THE FACT THAT OUR OFFICE ALLOWED CATALAN'S CLAIM FOR AMOUNTS CHECKED AND WITHHELD FROM HIS RETIRED PAY FOR A PERIOD PRIOR TO THE PERIOD COVERED BY THE ACTION IN THE COURT OF CLAIMS.

BY SECTION 2 (A) (12) OF THE PHILIPPINE INDEPENDENCE ACT OF MARCH 24, 1934, CH. 84, 48 STAT. 457, THE PRESIDENT WAS GIVEN AUTHORITY TO ORDER INTO THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES ALL MILITARY FORCES ORGANIZED BY THE PHILIPPINE GOVERNMENT. ACTING UNDER SUCH AUTHORITY, THE PRESIDENT, UNDER DATE OF JULY 26, 1941, ISSUED A MILITARY ORDER CALLING AND ORDERING "INTO THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES FOR THE PERIOD OF THE EXISTING EMERGENCY * * * ALL OF THE ORGANIZED MILITARY FORCES OF THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINES.' 6 F.R. 3825. SUCH ORDER WAS REVOKED, EFFECTIVE AT 12:00 MIDNIGHT JUNE 30, 1946, BY MILITARY ORDER DATED JUNE 29, 1946, 11 F.R. 7394, AND THE PHILIPPINES WERE DECLARED TO BE INDEPENDENT BY A PROCLAMATION OF THE PRESIDENT OF THE UNITED STATES, NO. 2695, DATED JULY 4, 1946, 11 F.R. 7517. DURING THE EFFECTIVE PERIOD OF THE MILITARY ORDER OF JULY 26, 1941, APPROPRIATIONS WERE MADE BY THE UNITED STATES GOVERNMENT FOR "ALL EXPENSES NECESSARY FOR THE MOBILIZATION, OPERATION, AND MAINTENANCE OF THE ARMY OF THE PHILIPPINES" AND SUCH APPROPRIATIONS WERE AVAILABLE FOR PAYMENT TO THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINES, EITHER IN ADVANCE OF, ORIN REIMBURSEMENT FOR, SUCH EXPENSES. SEE 55 STAT. 813, 56 STAT. 628, 57 STAT. 365, 58 STAT. 591, 59 STAT. 401, AND 60 STAT. 14. IN THE LOGRONIO CASE THE COURT HELD THAT SERVICE PERFORMED BY MEMBERS OF THE PHILIPPINE ARMY, FOLLOWING THE MILITARY ORDER OF JULY 26, 1941, WAS NOT SERVICE IN THE ARMY OF THE UNITED STATES AND THAT ANY RIGHT OF ACTION FOR PAY AND ALLOWANCES FOR SUCH SERVICE IN THE PHILIPPINE ARMY WAS AGAINST THE PHILIPPINE GOVERNMENT AND NOT AGAINST THE UNITED STATES. WHILE IT MAY BE THAT THE COURT HAD A TENABLE BASIS FOR ITS CONCLUSION IN THAT CASE, WE DO NOT REGARD SUCH CASE AS DETERMINATIVE OF THE RIGHTS OF THE CLAIMANT IN THE PRESENT CASE.

ALTHOUGH THE SERVICE PERFORMED BY GENERAL LIM AS AN OFFICER IN THE PHILIPPINE ARMY POSSIBLY MAY NOT BE CONSIDERED AS SERVICE AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES, IT IS OUR VIEW THAT INSOFAR AS THE RULE THAT RETIRED PAY AND ACTIVE DUTY PAY MAY NOT BE PAID CONCURRENTLY IS CONCERNED, THE TECHNICAL STATUS IN WHICH THE ACTIVE DUTY WAS PERFORMED IS OF MINOR IMPORTANCE WHEN COMPARED TO THE ACTUAL CONDITIONS UNDER WHICH THE DUTY WAS PERFORMED AND THE SOURCE OF THE FUNDS FROM WHICH HE WAS PAID FOR SUCH DUTY. THE PHILIPPINE GOVERNMENT RECOGNIZED THE RIGHT OF THE PRESIDENT OF THE UNITED STATES TO CALL "INTO THE SERVICE OF SUCH ARMED FORCES (OF THE UNITED STATES) ALL MILITARY FORCES ORGANIZED BY THE PHILIPPINE GOVERNMENT" AND GENERAL LIM ACTUALLY WAS ORDERED "INTO THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES.' WHILE SUCH DUTY WAS PERFORMED AS A MEMBER OF THE PHILIPPINE ARMY, THE CLOSENESS OF HIS INTERESTS AND RESPONSIBILITIES TO THOSE OF MEMBERS OF THE UNITED STATES ARMY ARE TOO APPARENT TO BE DISMISSED AS BEING WITHOUT SIGNIFICANCE IN DETERMINING WHETHER PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES OUT OF FUNDS PROVIDED BY THE UNITED STATES FOR THAT PURPOSE, AFFECTED HIS RIGHT TO RECEIVE RETIRED PAY. THE PAY AND ALLOWANCES RECEIVED BY GENERAL LIM WHILE SERVING AS AN OFFICER IN THE PHILIPPINE ARMY WITH THE ARMY OF THE UNITED STATES WERE PAID FROM APPROPRIATED FUNDS OF THE UNITED STATES. HIS RETIRED PAY WAS ALSO PAID FROM APPROPRIATED FUNDS. SUCH RETIRED PAY WAS PAYABLE SO LONG AS HE CONTINUED IN AN INACTIVE DUTY STATUS. A RETIRED OFFICER OF THE UNITED STATES ARMY RECALLED TO ACTIVE DUTY WHILE LIVING IN THE PHILIPPINE ISLANDS AT THAT TIME WOULD NOT HAVE BEEN ENTITLED TO CONTINUE TO RECEIVE RETIRED PAY AND WE DO NOT BELIEVE THAT A RETIRED PHILIPPINE SCOUT ORDERED ,INTO THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES" AS A MEMBER OF THE PHILIPPINE ARMY AND PAID FROM FUNDS FURNISHED BY THE UNITED STATES HAS ANY GREATER RIGHTS. CF., LEANDRO S. FERRER V. UNITED STATES, 132 CT.CL. 422, 426 AND 427 (1955). IT IS DIFFICULT TO IMPUTE TO THE CONGRESS AN INTENT THAT APPROPRIATED FUNDS MAY BE USED TO PAY RETIRED PAY TO ANYONE FOR THE SAME PERIOD THAT PAYMENTS ARE MADE FROM SUCH FUNDS FOR ACTIVE DUTY.

WHILE, DUE TO THE FACTS INVOLVED IN THE CATALAN CASE AND THE JUDGMENT ENTERED IN THE PLAINTIFF'S FAVOR, THE CLAIM WAS ALLOWED FOR A PERIOD PRIOR TO THAT COVERED BY THE JUDGMENT, SUCH JUDGMENT WAS ENTERED PURSUANT TO THE ADMISSION OF LIABILITY FILED BY THE GOVERNMENT AND SINCE IT WAS NOT RENDERED BY THE COURT AFTER FULL TRIAL ON THE MERITS AND ADJUDICATION OF THE SPECIFIC ISSUES INVOLVED, WE CONSIDER THAT IT ESTABLISHED NO PRECEDENT WHICH WE MAY FOLLOW IN THE CONSIDERATION OF THE PRESENT CLAIM.