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B-170089, JUL. 2, 1970

B-170089 Jul 02, 1970
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MEMBER OF THE PHILIPPINE SCOUTS WHO SERVED IN THE UNIFORMED SERVICES DURING WORLD WAR II AND WHO CLAIMS MUSTERING OUT PAY INCIDENT TO DISCHARGE MUST HAVE CLAIM CONSIDERED BARRED SINCE IT WAS NOT FILED IN GAO WITHIN THE 10 YEAR LIMITATION PERIOD FROM DATE OF DISCHARGE. CABUNGCAL: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 13. YOUR LETTER WAS REFERRED HERE FOR REPLY. YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 26. FOR THE REASON THAT IT WAS NOT TIMELY RECEIVED AND CONSEQUENTLY WAS BARRED BY THE PROVISIONS OF THAT ACT. THE CLAIMS DIVISION ADVISED YOU THAT YOUR CLAIM COULD NOT BE CONSIDERED BECAUSE IT WAS BARRED BY THE ACT OF OCTOBER 9.

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B-170089, JUL. 2, 1970

MILITARY -- MUSTERING-OUT PAY DECISION TO A FORMER PHILIPPINE SCOUT SUSTAINING THE DISALLOWANCE OF A CLAIM FOR MUSTERING OUT PAY BELIEVED DUE INCIDENT TO DISCHARGE FROM THE MILITARY SERVICE DECEMBER 3, 1945. MEMBER OF THE PHILIPPINE SCOUTS WHO SERVED IN THE UNIFORMED SERVICES DURING WORLD WAR II AND WHO CLAIMS MUSTERING OUT PAY INCIDENT TO DISCHARGE MUST HAVE CLAIM CONSIDERED BARRED SINCE IT WAS NOT FILED IN GAO WITHIN THE 10 YEAR LIMITATION PERIOD FROM DATE OF DISCHARGE.

TO MR. ELISEO E. CABUNGCAL:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 13, 1969, TO THE CHIEF, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, RELATIVE TO YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE MILITARY SERVICE AS A PHILIPPINE SCOUT ON DECEMBER 3, 1945. YOUR LETTER WAS REFERRED HERE FOR REPLY.

YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 26, 1969, AND ON MAY 29, 1969, THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, FOR THE REASON THAT IT WAS NOT TIMELY RECEIVED AND CONSEQUENTLY WAS BARRED BY THE PROVISIONS OF THAT ACT.

IN LETTER DATED AUGUST 28, 1969, IN REPLY TO YOUR LETTER OF AUGUST 11, 1969, THE CLAIMS DIVISION ADVISED YOU THAT YOUR CLAIM COULD NOT BE CONSIDERED BECAUSE IT WAS BARRED BY THE ACT OF OCTOBER 9, 1940. ALSO, IT WAS EXPLAINED THAT PUBLIC LAW 263, 88TH CONGRESS, WHICH WAS APPROVED JANUARY 31, 1964, HAS NO BEARING ON EITHER THE PAYMENT OF MUSTERING-OUT PAY OR THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940.

IN YOUR PRESENT LETTER YOU REFER TO THE 1965 ACT AND YOU ASK THE CHIEF OF THE ARMY FINANCE CENTER TO REVIEW THE ACTION TAKEN BY THIS OFFICE AND ALLOW YOUR CLAIM.

PRESUMABLY YOU HAVE REFERENCE TO THE ACT OF JUNE 24, 1965, PUBLIC LAW 89- 50, 79 STAT. 173. THIS LAW WAS ENACTED TO AUTHORIZE MUSTERING-OUT PAY TO A SMALL NUMBER OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING THE MUSTERING-OUT PAY BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE DATE OF JULY 17, 1959. ITS PROVISIONS WERE NOT INTENDED TO IN ANY WAY AMEND OR ABRIDGE THE APPLICATION OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, IN THE MATTER OF CLAIMS AGAINST THE UNITED STATES. THUS, IT IS NOT FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM.

CONCERNING YOUR REQUEST THAT THE CHIEF OF THE ARMY FINANCE CENTER REVIEW THE ACTION TAKEN BY THIS OFFICE AND ALLOW YOUR CLAIM, SECTIONS 71 AND 74 OF TITLE 31, U.S.C. PROVIDE THAT ALL CLAIMS AND DEMANDS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE AND SUCH A SETTLEMENT IS FINAL AND CONCLUSIVE UPON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. ACCORDINGLY, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN BY THE DEPARTMENT OF THE ARMY AND IT WAS FOR THIS REASON THAT YOUR LETTER OF OCTOBER 13, 1969, WAS FORWARDED HERE FOR CONSIDERATION AND REPLY.

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 MAY HAVE HAD FOR MUSTERING-OUT PAY ACCRUED ON DECEMBER 3, 1945, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED IT BEFORE DECEMBER 3, 1955. SINCE IT WAS NOT RECEIVED HERE UNTIL FEBRUARY 26, 1969, CONSIDERATION THEREOF IS PRECLUDED BY LAW.

WE HOPE THIS LETTER WILL ENABLE YOU TO BETTER UNDERSTAND THE REASON WHY, UNDER EXISTING LAW, FAVORABLE CONSIDERATION MAY NOT BE GIVEN YOUR CLAIM.

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