B-160689, OCT. 24, 1967

B-160689: Oct 24, 1967

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REVIEW OF VARIOUS CLAIMS WHICH ARE BARRED UNDER ACT OF OCTOBER 9. HOW RECENT LAWS RELATING TO MILITARY PAY MATTERS ARE NOT APPLICABLE TO INDIVIDUAL. MERCADO: REFERENCE IS MADE TO YOUR LETTER OF JULY 29. IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICES AS AN ENLISTED MEMBER OF THE PHILIPPINE SCOUTS FROM WHICH YOU WERE DISCHARGED ON MAY 21. YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS THE SUBJECT OF OUR DECISIONS OF FEBRUARY 14 AND JULY 11. IT WAS POINTED OUT THAT THE SOLE PROVISION OF LAW WHICH GOVERNS THE DISPOSITION OF THE CLAIM. PRECLUDES THIS OFFICE (GENERAL ACCOUNTING OFFICE) FROM CONSIDERING ANY CLAIM WHICH IS NOT RECEIVED HERE WITHIN 10 YEARS AFTER THE DATE SUCH CLAIM ACCRUED AND YOUR CLAIM WAS NOT RECEIVED HERE UNTIL MORE THAN 16 YEARS AFTER THE DATE IT ACCRUED.

B-160689, OCT. 24, 1967

ARMED SERVICES - PAY - PHILIPPINE SCOUT DECISION TO INDIVIDUAL RE CLAIM FOR PAY AND ALLOWANCES INCIDENT TO SERVICE AS PHILIPPINE SCOUT FROM WHICH DISCHARGED IN MAY 1949. REVIEW OF VARIOUS CLAIMS WHICH ARE BARRED UNDER ACT OF OCTOBER 9, 1940, AND HOW RECENT LAWS RELATING TO MILITARY PAY MATTERS ARE NOT APPLICABLE TO INDIVIDUAL.

TO MR. PEDRO G. MERCADO:

REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1967, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICES AS AN ENLISTED MEMBER OF THE PHILIPPINE SCOUTS FROM WHICH YOU WERE DISCHARGED ON MAY 21, 1949.

YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS THE SUBJECT OF OUR DECISIONS OF FEBRUARY 14 AND JULY 11, 1967, B-160689. IN THOSE DECISIONS WE EXPLAINED IN DETAIL WHY THIS OFFICE CANNOT CONSIDER SUCH CLAIM. IT WAS POINTED OUT THAT THE SOLE PROVISION OF LAW WHICH GOVERNS THE DISPOSITION OF THE CLAIM, THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, PRECLUDES THIS OFFICE (GENERAL ACCOUNTING OFFICE) FROM CONSIDERING ANY CLAIM WHICH IS NOT RECEIVED HERE WITHIN 10 YEARS AFTER THE DATE SUCH CLAIM ACCRUED AND YOUR CLAIM WAS NOT RECEIVED HERE UNTIL MORE THAN 16 YEARS AFTER THE DATE IT ACCRUED. ALSO, IN THOSE DECISIONS WE EXPLAINED TO YOU WHY CERTAIN LAWS WHICH YOU BELIEVE WOULD JUSTIFY THE ALLOWANCE OF YOUR CLAIM ARE NOT APPLICABLE IN YOUR CASE.

IN YOUR LETTER OF JULY 29, 1967, YOU REFER TO YOUR LETTER OF DECEMBER 6, 1966, IN WHICH YOU STATED THAT "UN-USED LEAVES AND OVERSEAS PAY MUST BE GIVEN TO THE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO HAVE PERFORMED ACTIVE SERVICES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, OR AND OTHER FOREIGN COUNTRIES," AND AS A BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM BECAUSE YOU SERVED OUTSIDE THE PHILIPPINE ISLANDS FROM APRIL 19 TO JUNE 1 AND JUNE 14 TO SEPTEMBER 13, 1946, YOU QUOTE SUBPARAGRAPH 2101 (B) (3) OF TITLE 38, U.S.C. (1964 ED.) (ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-857, 72 STAT. 1222). ALSO, YOU CITE AS FURTHER AUTHROITY FOR FAVORABLE ACTION ON YOUR CLAIM THE ACT OF AUGUST 28, 1965, PUBLIC LAW 89-151, 79 STAT. 586, AND THE ACT OF JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT. 173.

YOUR LETTER OF DECEMBER 6, 1966, PRESENTING YOUR CLAIM FOR LUMP-SUM PAYMENT FOR UNUSED ACCRUED LEAVE (TERMINAL LEAVE) AND "OVERSEAS PAY" (FOREIGN SERVICE PAY) WAS RECEIVED IN THIS OFFICE ON MARCH 3, 1967. SINCE ON THAT DATE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF THE ACCRUAL OF THE CLAIM (MAY 21, 1949), CONSIDERATION THEREOF WAS BARRED BY THE ACT OF OCTOBER 9, 1940. ACCORDINGLY, OUR CLAIMS DIVISION ON MARCH 31, 1967, RETURNED THE CLAIM TO YOU TOGETHER WITH A COPY OF THAT ACT. THE ABSENCE OF EVIDENCE THAT YOUR CLAIM WAS FILED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO MAY 21, 1959 (10 YEARS AFTER THE DATE OF YOUR DISCHARGE), WE ARE PRECLUDED FROM CONSIDERING IT ON ITS MERITS.

PUBLIC LAW 85-857, MENTIONED ABOVE, PROVIDES FOR THE PAYMENT OF MUSTERING -OUT PAY TO OTHERWISE ELIGIBLE MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY DURING THE KOREAN CONFLICT AND WHO WERE DISCHARGED OR RELEASED THEREFROM UNDER HONORABLE CONDITIONS. AS YOU WERE DISCHARGED PRIOR TO THE KOREAN CONFLICT AND AS THE RECORD FAILS TO SHOW THAT YOU WERE A MEMBER OF THE ARMED FORCES OF THE UNITED STATES AT ANY TIME DURING THAT CONFLICT, THAT PROVISION OF LAW WOULD NOT BE FOR CONSIDERATION IN YOUR CASE REGARDLESS WHETHER OR NOT YOUR CLAIM WAS TIMELY FILED IN THIS OFFICE.

NOR DOES IT APPEAR THAT THE ABOVE-MENTIONED PUBLIC LAW 89-50, WHICH ALSO CONCERNS ENTITLEMENT OF ELIGIBLE MEMBERS TO THE MUSTERING-OUT PAY, APPLIES IN YOUR CASE. THAT LAW WAS ENACTED TO AUTHORIZE MUSTERING-OUT PAY TO A RELATIVELY SMALL NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE OF THE UNITED STATES AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING MUSTERING- OUT PAY BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE DATE OF JULY 17, 1959.

ABOVE-CITED PUBLIC LAW 89-151, TOO, IS NOT APPLICABLE IN YOUR CASE BECAUSE IT WAS ENACTED FOR THE PURPOSE OF AMENDING TITLES 10 AND 37, U.S.C. TO AUTHORIZE THE SURVIVORS OF A MEMBER OF THE ARMED FORCES OF THE UNITED STATES WHO DIES WHILE ON ACTIVE DUTY TO BE PAID FOR HIS UNUSED ACCRUED LEAVE.

INASMUCH AS THIS OFFICE IS PROHIBITED BY THE ACT OF OCTOBER 9, 1940, FROM CONSIDERING YOUR CLAIM, WE HAVE NO ALTERNATIVE BUT TO AGAIN ADVISE YOU THAT WE ARE WITHOUT AUTHORITY TO TAKE ANY FURTHER ACTION THEREON.