B-153955, MAY 14, 1964

B-153955, MAY 14, 1964

TO MISS LUCIA ROXAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1964, WITH ENCLOSURE, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR 6 MONTHS' DEATH GRATUITY, ADDITIONAL PAY AND ALLOWANCES UNDER PUBLIC LAW 85- 217, APPROVED AUGUST 29, 1957, AND FAMILY ALLOWANCES UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, IN THE CASE OF YOUR LATE FATHER, CONSTANCIO ROXAS, PRIVATE FIRST CLASS, PHILIPPINE SCOUTS, WHOSE DEATH WAS ESTABLISHED ON NOVEMBER 11, 1945.

THIS OFFICE FIRST RECEIVED A CLAIM FROM YOU ON NOVEMBER 26, 1963, FOR THE 6-MONTHS' DEATH GRATUITY, ADDITIONAL ARREARS OF PAY AND ALLOWANCES, AND FAMILY ALLOWANCES WHEN THERE WAS RECEIVED FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOUR LETTER OF AUGUST 14, 1963, ADDRESSED TO THE CLAIMS DIVISION OF THAT CENTER. SINCE THERE WAS NO RECORD IN THIS OFFICE OF THE RECEIPT OF A PRIOR CLAIM FROM YOU AND SINCE THERE WAS AN ELAPSED PERIOD OF MORE THAN 10 YEARS FROM THE DATE YOUR CLAIM FIRST ACCRUED, THAT IS FROM NOVEMBER 11, 1945, THE DATE OF RECEIPT OF EVIDENCE BY THE SECRETARY OF WAR (NOW SECRETARY OF THE ARMY) ESTABLISHING THE DEATH OF YOUR FATHER, OUR CLAIMS DIVISION, INCOMPLIANCE WITH THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, RETURNED YOUR CLAIM ON DECEMBER 18, 1963, ALONG WITH A COPY OF THAT ACT. BY LETTER OF FEBRUARY 28, 1964, THAT DIVISION, IN RESPONSE TO YOUR LETTER OF JANUARY 27, 1964, FULLY ADVISED YOU REGARDING THE APPLICATION OF THE ACT OF OCTOBER 9, 1940, PARTICULARLY THE LIMITATION UPON THE JURISDICTION OF THIS OFFICE TO CONSIDER YOUR CLAIM. YOU WERE ALSO ADVISED IN THAT LETTER THAT ON JANUARY 2, 1948, THE SUM OF $741.17, REPRESENTING ARREARS OF PAY DUE YOUR FATHER UNDER THE MISSING PERSONS ACT OF MARCH 7, 1942, CH. 166, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1001-1015, WAS ALLOWED TO THE JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY, IN THE CAPACITY OF ADMINISTRATOR OF THE ESTATE OF YOUR DECEASED FATHER, IN ACCORDANCE WITH PHILIPPINE REPUBLIC ACT NO. 136, DATED JUNE 14, 1947, AND FURTHER THAT THERE WAS NO AMOUNT OF PAY AND ALLOWANCES DUE THE ESTATE OF YOUR FATHER UNDER PUBLIC LAW 85-217.

IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION OF THE CLAIM YOU HAVE FURNISHED A LETTER DATED FEBRUARY 23, 1946, FROM THE RECEIPTS AND DISBURSEMENTS DIVISION, HEADQUARTERS, UNITED STATES ARMY FORCES WESTERN PACIFIC, OFFICE OF THE FISCAL DIRECTOR, STATING THAT RECORDS AVAILABLE IN THAT OFFICE INDICATE THAT YOU ARE THE BENEFICIARY OF THE 6-MONTHS' DEATH GRATUITY IN THE CASE OF YOUR DECEASED FATHER AND ENCLOSING A FORM FOR EXECUTION AND RETURN. IN VIEW OF THAT LETTER YOU CONTEND THAT YOU TIMELY FILED CLAIM AND BELIEVE, THEREFORE, THAT SUCH CLAIM MERITS FAVORABLE CONSIDERATION.

THE ACT OF OCTOBER 9, 1940, UNEQUIVOCALLY PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM IS FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS AFTER THE DATE IT ACCRUED. HENCE, UNDER THAT ACT IT IS IMMATERIAL WHETHER YOU FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY WITHIN THE 10-YEAR LIMITATION PRESCRIBED IN THE ACT. IN OTHER WORDS, CONSIDERATION OF YOUR CLAIM ON ITS MERITS WOULD BE AUTHORIZED ONLY IF YOUR CLAIM HAD BEEN FILED IN THIS OFFICE PRIOR TO NOVEMBER 11, 1955, THAT IS, WITHIN 10 YEARS FROM THE DATE THE DEATH OF YOUR FATHER WAS ESTABLISHED. SINCE THE RECORD CLEARLY SHOWS THAT YOUR CLAIM WAS NOT RECEIVED HERE UNTIL NOVEMBER 26, 1963, THIS OFFICE IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940, FROM CONSIDERING THAT PART THEREOF WHICH PERTAINS TO THE 6-MONTHS' DEATH GRATUITY. FURTHERMORE, NO MATTER HOW MERITORIOUS A CLAIM MAY BE, NEITHER THIS OFFICE NOR ANY PUBLIC OFFICIAL MAY MAKE EXCEPTIONS TO THE ACT, NOR DOES IT CONFER JURISDICTION UPON THIS OFFICE TO WAIVE ITS PROVISIONS IN ANY PARTICULAR CASE. ACCORDINGLY THERE IS NO FURTHER ACTION THAT WE MAY TAKE ON YOUR CLAIM FOR THE 6-MONTHS' DEATH GRATUITY.

SECTION 2 OF THE MISSING PERSONS ACT, 56 STAT. 144, AS AMENDED, 50 U.S.C. APP. 1002, PROVIDES THAT, WITH CERTAIN EXCEPTIONS, ANY PERSON WHO IS IN ACTIVE SERVICE AND WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE, BELEAGUERED OR BESIEGED, SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN ANY SUCH STATUS, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER.

SECTION 2 OF PUBLIC LAW 85-217 AMENDED THOSE PROVISIONS TO PROVIDE THAT SUCH ENTITLEMENT TO PAY AND ALLOWANCES SHALL NOT BE DENIED IN THE CASE OF ANY MEMBER OF THE PHILIPPINE SCOUTS WHO WAS CAPTURED IN THE PHILIPPINE ISLANDS BY THE ENEMY IN WORLD WAR II, SOLELY ON THE GROUND THAT SUCH MEMBER WAS PAROLED AND PERMITTED TO RETURN TO HIS HOME AND ENGAGE IN CIVILIAN PURSUITS DURING THE JAPANESE OCCUPATION OF THE PHILIPPINES. HOWEVER, THE SECTION, AS AMENDED, DOES NOT PROVIDE FOR PAYMENT OF ADDITIONAL PAY AND ALLOWANCES FOR THE SAME PERIOD FOR WHICH A PHILIPPINE SCOUT OR HIS ESTATE ALREADY HAS BEEN PAID UNDER THE MISSING PERSONS ACT, AS AMENDED. THE ALLOWANCE OF $741.17 IN FAVOR OF THE JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY AS ADMINISTRATOR OF THE ESTATE OF YOUR FATHER WAS MADE BY SETTLEMENT OF THIS OFFICE DATED JANUARY 2, 1948, UNDER THE AUTHORITY OF THE MISSING PERSONS ACT, AS AMENDED, AND PURSUANT TO A DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT YOUR LATE FATHER WAS IN A BELEAGUERED STATUS FROM DECEMBER 8, 1941, TO AND INCLUDING MAY 6, 1942, AND ABSENT IN A MISSING IN ACTION STATUS ON AND SUBSEQUENT TO MAY 7, 1942, AND UNTIL ABSENCE WAS TERMINATED ON NOVEMBER 11, 1945, UPON RECEIPT OF EVIDENCE ESTABLISHING HIS DEATH. THEREFORE, SINCE THE SETTLEMENT OF JANUARY 2, 1948, ALLOWED ALL PAY AND ALLOWANCES DUE FOR THE ENTIRE PERIOD FROM DECEMBER 1, 1941, TO NOVEMBER 11, 1945, NO ADDITIONAL AMOUNT IS DUE THE ESTATE UNDER PUBLIC LAW 85-217.

CONCERNING THAT PART OF YOUR CLAIM PERTAINING TO FAMILY ALLOWANCES UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, APPROVED JUNE 23, 1942, CH. 443, 56 STAT. 381, AS AMENDED, 37 U.S.C. 201 ET SEQ. (1940 ED., SUPP. IV), YOU ARE ADVISED THAT SECTION 120 (I) OF THAT LAW SPECIFICALLY EXCLUDED FROM ITS APPLICATION THE PHILIPPINE SCOUTS. HENCE IT IS CLEAR THAT THERE IS NO AMOUNT REPRESENTING FAMILY ALLOWANCES DUE AND PAYABLE ON ACCOUNT OF THE MILITARY SERVICE OF YOUR LATE FATHER AND, THEREFORE, FURTHER ACTION WITH REGARD TO YOUR CLAIM FOR SUCH ALLOWANCES IS NOT REQUIRED.

LETTER DATED FEBRUARY 23, 1946, FROM THE RECEIPTS AND DISBURSEMENTS DIVISION, AS REQUESTED, AS RETURNED.