B-144249, OCT. 25, 1960

B-144249, OCT. 25, 1960

TO MR. JOSE P. VENTURA:

YOUR LETTER OF SEPTEMBER 29, 1960, REQUESTS FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237, IN BARRING YOUR CLAIM FOR OVERTIME COMPENSATION, VACATION PAY, SICK LEAVE, SUBSISTENCE AND QUARTERS ALLOWANCE, DIFFERENTIAL AND PER DIEM DURING THE PERIOD DECEMBER 12, 1945 TO OCTOBER 20, 1947, AS AN EMPLOYEE OF THE UNITED STATES ARMY TRANSPORTATION CORPS.

YOU NOW CONTEND THAT SINCE YOUR CLAIM WAS FILED WITHIN 5 YEARS OF JULY 23, 1956, WHEN YOU SAY THE PEACE TREATY OF THE PHILIPPINES WITH JAPAN WAS RATIFIED, IT IS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, SINCE IT IS WITHIN THE PROVISIONS OF THE PROVISO OF THAT ACT.

THE PROVISO OF THE CITED ACT READS AS FOLLOWS:

"* * * PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

THE RECORD CONCERNING YOUR CLAIM DOES NOT INCLUDE ANY EVIDENCE THAT YOU WERE "SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES.' THE ABSENCE OF SUCH EVIDENCE, THE PREVIOUS ACTION TAKEN BY OUR OFFICE IS CORRECT AND IS SUSTAINED. YOUR SERVICE IN THE "U.S. ARMY TRANSPORTATION CORP," FROM WHICH YOU WERE DISCHARGED, DOES NOT CONSTITUTE SERVICE IN THE "MILITARY OR NAVAL FORCES OF THE UNITED STATES.'