B-170314, JUL. 29, 1970
Highlights
WHO CLAIMS ADDITIONAL MUSTERING-OUT PAY INCIDENT TO DISCHARGE IN 1949 MUST HAVE CLAIM BARRED FROM CONSIDERATION SINCE IT WAS NOT FILED BEFORE EXPIRATION DATE OF THE 10 YEAR LIMITATION PERIOD FROM DATE OF DISCHARGE. TENDENILLA: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 27. THIS MATTER WAS THE SUBJECT OF LETTER FROM OUR CLAIMS DIVISION DATED JUNE 9. IN THAT LETTER YOU WERE INFORMED THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THE ACT OF OCTOBER 9. DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD THERE PRESCRIBED. YOU CONTEND THAT YOU ARE ENTITLED TO PAYMENT "UNDER THE PROVISION OF ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9.
B-170314, JUL. 29, 1970
MILITARY -- MUSTERING-OUT PAY DECISION TO A FORMER MEMBER OF THE PHILLIPINE SCOUTS SUSTAINING DISALLOWANCE OF CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO DISCHARGE IN 1949. FORMER MEMBER OF THE PHILLIPINE SCOUTS WHO SERVED IN THE UNIFORMED SERVICES, AND WHO CLAIMS ADDITIONAL MUSTERING-OUT PAY INCIDENT TO DISCHARGE IN 1949 MUST HAVE CLAIM BARRED FROM CONSIDERATION SINCE IT WAS NOT FILED BEFORE EXPIRATION DATE OF THE 10 YEAR LIMITATION PERIOD FROM DATE OF DISCHARGE.
TO MR. JULIAN V. TENDENILLA:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 27, 1969, AND MAY 25, 1970, CONCERNING YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1949.
THIS MATTER WAS THE SUBJECT OF LETTER FROM OUR CLAIMS DIVISION DATED JUNE 9, 1965. IN THAT LETTER YOU WERE INFORMED THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD THERE PRESCRIBED.
IN YOUR LETTER OF MAY 25, 1970, YOU CONTEND THAT YOU ARE ENTITLED TO PAYMENT "UNDER THE PROVISION OF ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9, 1963 AND WAS APPROVED SEPTEMBER 30, 1965." WE CANNOT IDENTIFY THE LAW TO WHICH YOU REFER. 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. YOU ALSO REFER TO CERTAIN REGULATIONS WHICH RELATE TO THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.).
WITHOUT REGARD TO THE MERITS OF A CLAIM, THIS OFFICE MAY NOT MAKE AN EXCEPTION TO THE PROVISION OF THE 1940 STATUTE REFERRED TO ABOVE, OR GRANT AN EXTENSION OF THE TIME WITHIN WHICH CLAIMS MUST BE FILED. THAT ACT PROHIBITS CONSIDERATION OF ANY CLAIM WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.
SINCE YOU STATE THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON JANUARY 28, 1949, ANY CLAIM FOR MUSTERING-OUT PAY ACCRUED AT THAT TIME AND IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM ON OR BEFORE JANUARY 28, 1959, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. YOUR CLAIM WAS FIRST RECEIVED HERE ON MAY 26, 1965, MORE THAN 16 YEARS AFTER YOUR DISCHARGE, AND HENCE THERE IS NO FURTHER ACTION THIS OFFICE MAY TAKE THEREON.