B-150430, MAR. 7, 1963

B-150430, MAR. 7, 1963

TO MR. GREGORIO PENAS:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 22, 1962, RELATIVE TO YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR MILITARY SERVICE IN THE PHILIPPINE SCOUTS.

THE RECORD INDICATES THAT YOU SERVED IN THE ARMED FORCES OF THE UNITED STATES, PHILIPPINE SCOUTS, FROM JUNE 25, 1946, TO MAY 25, 1949, AND THAT YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE ON AUGUST 8, 1962. SINCE YOUR CLAIM WAS RECEIVED IN THIS OFFICE MORE THAN 10 YEARS AFTER IT FIRST ACCRUED IT WAS RETURNED TO YOU BY THE CLAIMS DIVISION OF THIS OFFICE ON AUGUST 23, 1962, AS A CLAIM BARRED BY THE ACT OF OCTOBER 9, 1940. CLAIMS DIVISION LETTER OF OCTOBER 3, 1962, YOU WERE ADVISED THAT THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, AS AMENDED, 50 U.S.C.APP. 525, BARS CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED, WITH CERTAIN EXCEPTION RELATIVE TO MEMBERS IN THE MILITARY SERVICE, WHICH EXCEPTION IS NOT APPLICABLE HERE. SINCE MORE THAN 10 FULL YEARS HAD ELAPSED SINCE THE DATE YOUR CLAIM FIRST ACCRUED OR FROM THE DATE OF YOUR DISCHARGE, MAY 25, 1949, YOU WERE ADVISED IT IS BARRED BY THE SAID ACT OF OCTOBER 9, 1940. IN YOUR PRESENT LETTER YOU REQUEST FURTHER CONSIDERATION UNDER THE ACT OF JULY 26, 1955, 69 STAT. 380.

THE ACT OF JULY 26, 1955, 69 STAT. 380, AMENDED SECTION 503 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 690, TO EXTEND THE TIME FOR FILING CLAIMS FOR MUSTERING-OUT PAYMENTS BY STRIKING OUT "WITHIN TWO YEARS AFTER THE DATE OF ENACTMENT OF THIS TITLE" AND INSERTING IN LIEU THEREOF "ON OR BEFORE JULY 16, 1956.' THE TIME FOR FILING WAS FURTHER EXTENDED TO JULY 16, 1959, BY THE ACT OF AUGUST 14, 1958, 72 STAT. 593. SINCE, HOWEVER, YOU DID NOT FILE YOUR CLAIM UNTIL 1962, SUCH PROVISIONS AFFORD NO BASIS UPON WHICH WE MAY ACCORD IT FAVORABLE CONSIDERATION IN ANY EVENT.

ACCORDINGLY, THE CLAIMS DIVISION ACTION IN BARRING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

EVEN IF YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WERE NOT BARRED, WE COULD NOT GIVE IT FAVORABLE CONSIDERATION. UNDER THE PROVISIONS OF SECTION 14 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 538, 543, THE SECRETARY OF WAR, WITH THE APPROVAL OF THE PHILIPPINE GOVERNMENT, WAS AUTHORIZED TO ENLIST IN THE PHILIPPINE SCOUTS CITIZENS OF THE PHILIPPINE ISLANDS "FOR SERVICE IN THE PHILIPPINE ISLANDS" AND OTHER AREAS IN THE FAR EAST. THE RIGHTS, PRIVILEGES AND BENEFITS OF PERSONS SERVING IN THE PHILIPPINE SCOUTS UNDER SECTION 14 OF THE 1945 ACT, HOWEVER, WERE RESTRICTED BY TITLE II OF THE ACT OF MAY 27, 1946, 60 STAT. 223-224, AND, WHILE MUSTERING-OUT PAY WAS ONE OF THE BENEFITS TO WHICH SUCH PERSONS WERE ENTITLED, THE PAYMENT AND AMOUNT THEREOF WERE LIMITED BY THAT LAW AS FOLLOWS:

"/5) THE PROVISIONS OF THE MUSTERING-OUT-PAYMENT ACT OF 1944 (PUBLIC LAW 225, SEVENTY-EIGHTH CONGRESS), EXCEPT THAT FOR THE PURPOSE OF COMPUTING SUCH PAYMENTS FOR SERVICE IN THE PHILIPPINE SCOUTS, SERVICE WHOLLY PERFORMED IN THE PHILIPPINE ISLANDS SHALL BE COMPENSATED FOR ON THE SAME BASIS AS SERVICE WHOLLY PERFORMED WITHIN THE UNITED STATES; AND

"PROVIDED FURTHER, THAT PAYMENTS MADE UNDER THE PROVISIONS OF ANY LAW REFERRED TO IN CLAUSES (5) * * * ABOVE SHALL BE PAID AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY SUCH LAW: * * *"

IT WILL BE SEEN THAT BY THE PROVISIONS OF THAT ACT, SERVICE WHOLLY PERFORMED IN THE PHILIPPINE ISLANDS BY PHILIPPINE SCOUTS IS TREATED AS SERVICE WHOLLY PERFORMED WITHIN THE UNITED STATES, PAYMENT BEING AUTHORIZED AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED. SECTION 2A (2) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, AUTHORIZED THE PAYMENT OF "$200 FOR PERSONS WHO, HAVING PERFORMED ACTIVE SERVICE FOR SIXTY DAYS OR MORE, HAVE SERVED NO PART THEREOF OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.' SEE ALSO, PARAGRAPH 1B, CHANGE NO. 2, ARMY REGULATIONS 35-2490, DATED JUNE 11, 1946. THE RECORD INDICATES THAT YOU SERVED IN THE PHILIPPINE ISLANDS AS A PHILIPPINE SCOUT FROM JUNE 25, 1946, TO MAY 19, 1949, AND IT APPEARS FROM YOUR LETTER DATED JULY 25, 1957, TO THE FINANCE CENTER, DEPARTMENT OF THE ARMY, AND FROM THE RECORDS OF THIS OFFICE, THAT YOU WERE PAID 200 PHILIPPINE PESOS, THE FULL AMOUNT TO WHICH YOU WERE ENTITLED UNDER THE LAW.