B-162027, JUL. 27, 1967

B-162027, JUL. 27, 1967

ARMED SERVICES - MUSTERING OUT PAY - WORLD WAR II SERVICE DECISION TO CLAIMANT SUSTAINING ACTION OF CLAIMS DIV. IN DISALLOWANCE OF CLAIM FOR MUSTERING-OUT PAY UPON DISCHARGE FROM PHILIPPINE SCOUTS ON FEB. 12, 1949. CLAIM FOR MUSTERING-OUT PAY IS NOT COGNIZABLE UNDER PUB. L. 89-50, WHICH EXTENDED TIME LIMITATION FOR CERTAIN OFFICERS WHO WERE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY FOLLOWING KOREAN CONFLICT NOR UNDER 38 U.S.C. CHP. 43, AND THEREFORE SINCE CLAIM FIRST ACCRUED UPON DISCHARGE ON FEB. 12, 1949, AND CLAIM WAS NOT PRESENTED TO GAO UNTIL NOV. 1959 MORE THAN 10 YEARS LATER THE 1940 BARRED ACT PRECLUDES CONSIDERATION.

TO MR. GIL TORALLO:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1967, ADDRESSED TO THE U. S. ARMY FINANCE CENTER, WHICH HAS BEEN FORWARDED TO OUR OFFICE FOR REPLY, WHEREIN YOU CLAIM ADDITIONAL MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS ON FEBRUARY 12, 1949. OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED NOVEMBER 16, 1959, NOVEMBER 20, 1962, AND JANUARY 29, 1963, IN WHICH YOU WERE ADVISED THAT YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH READS IN PERTINENT PART:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * * .'

IN CONNECTION WITH THE ABOVE-QUOTED ACT, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

YOU NOW INVITE ATTENTION TO PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, WHICH EXTENDS THE TIME FOR FILING CERTAIN CLAIMS FOR MUSTERING- OUT PAYMENTS. IN FURTHER SUPPORT OF YOUR CLAIM, YOU CONTEND THAT SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 543, AUTHORIZED PAYMENT OF SUCH MUSTERING-OUT PAY TO PHILIPPINE SCOUTS WHO SERVED A TOUR OF DUTY OUTSIDE THE PHILIPPINES, AT THE RATE OF ONE PHILIPPINE PESO FOR EVERY DOLLAR AUTHORIZED BY THE 1944 ACT.

THE SECTION OF PUBLIC LAW 89-50 TO WHICH YOU REFER PROVIDES IN PERTINENT PART:

"NOTWITHSTANDING THE FIRST SENTENCE OF THIS SECTION (2104 OF TITLE 38, U. S. CODE) OR SECTION 71A OF TITLE 31, A MEMBER OF THE ARMED FORCES ENTITLED TO MUSTERING-OUT PAYMENT WHO WAS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE AS AN OFFICER OF AN ARMED FORCE UNDER HONORABLE CONDITIONS BEFORE JULY 16, 1952, FOR THE PURPOSE OF APPOINTMENT AS A WARRANT OFFICER OR COMMISSIONED OFFICER IN A REGULAR COMPONENT OF AN ARMED FORCE, SHALL, IF APPLICATION IS MADE BEFORE JANUARY 31, 1966, BE PAID MUSTERING-OUT PAYMENT

PUBLIC LAW 89-50 IS AN AMENDMENT TO CHAPTER 43 (SECTIONS 2101-2105) OF TITLE 38, U. S. CODE, WHICH PROVIDED FOR MUSTERING-OUT PAYMENTS TO THOSE PERSONS WHO SERVED ON ACTIVE DUTY DURING THE PERIOD OF THE KOREAN CONFLICT. THIS AMENDMENT WAS ENACTED IN ORDER TO EXTEND THE TIME LIMITATION FOR FILING MUSTERING-OUT PAYMENT CLAIMS, WITH RESPECT TO A SMALL GROUP OF OFFICERS WHO WERE INTEGRATED INTO THE REGULAR ARMY OR REGULAR AIR FORCE AFTER JUNE 26, 1950, AND BEFORE JULY 16, 1952, AND WHO WERE OTHERWISE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY, FOLLOWING SERVICE DURING THE KOREAN CONFLICT, BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE DATE OF JULY 17, 1959.

INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE ON FEBRUARY 12, 1949, WHICH WAS BEFORE THE ONSET OF THE KOREAN CONFLICT, NEITHER CHAPTER 43 OF TITLE 38, U. S. CODE, NOR PUBLIC LAW 89-50, IS FOR APPLICATION IN YOUR CASE.

YOUR ATTENTION IS ALSO INVITED TO THE FACT THAT SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CITED BY YOU, DOES NOT PERTAIN TO THE PAYMENT OF MUSTERING-OUT PAY. IT RELATES ONLY TO THE AUTHORIZATION FOR THE ENLISTMENT OF A NUMBER OF PERSONS IN THE PHILIPPINE SCOUTS FOR DUTY IN THE PHILIPPINES AND CERTAIN AREAS OUTSIDE THE PHILIPPINES ON OR AFTER OCTOBER 6, 1945. ALTHOUGH THAT SECTION MAY HAVE BEEN THE AUTHORITY UNDER WHICH YOU ENTERED MILITARY SERVICE AS A PHILIPPINE SCOUT, IT IN NO WAY REFERS TO THE PAYMENT OF MUSTERING-OUT PAY.

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.), SECTION 2/A) (1) OF WHICH PROVIDED FOR A MAXIMUM PAYMENT OF $300 TO PERSONS WHO SERVED 60 DAYS OR MORE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. CONNECTION WITH THIS ACT, TITLE II OF THE ACT OF MAY 27, 1946, CH. 271, 60 STAT. 223, PROVIDED THAT THE MUSTERING OUT PAYMENT ACT OF 1944 SHOULD BE DEEMED APPLICABLE TO PERSONS WHO ENLISTED IN THE PHILIPPINE SCOUTS UNDER THE ACT OF OCTOBER 6, 1945, BUT PAYMENT WAS TO BE AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY THE 1944 ACT. IN OTHER WORDS, UNDER THE PROVISIONS OF THOSE LAWS, THE MAXIMUM AMOUNT THAT COULD BE PAID AS MUSTERING-OUT PAY TO A PHILIPPINE SCOUT UPON DISCHARGE, EVEN THOUGH HE SERVED MORE THAN 60 DAYS, INCLUDING SERVICE OUTSIDE THE PHILIPPINES SUBSEQUENT TO OCTOBER 6, 1945, WAS 300 PESOS.

CLAIMS FOR MUSTERING-OUT PAY, HOWEVER, ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT SUCH CLAIMS BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DAY THE CLAIM FIRST ACCRUED. THE RECORD SHOWS THAT YOU WERE DISCHARGED FROM THE SERVICE ON FEBRUARY 12, 1949. SINCE THAT WAS THE DATE YOUR CLAIM FIRST ACCRUED, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM ON OR BEFORE FEBRUARY 12, 1959, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. OUR FILE SHOWS THAT YOUR CLAIM CONCERNING MUSTERING OUT PAY WAS RECEIVED HERE IN NOVEMBER 1959, MORE THAN 10 YEARS AFTER THE DATE OF YOUR DISCHARGE.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE 1940 BARRING ACT, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.