B-166220, APR. 23, 1969

B-166220, APR. 23, 1969

TO MR. NICOLAS S. MAYOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1969, IN EFFECT APPEALING THE ACTION TAKEN BY THIS OFFICE ON YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR MILITARY SERVICE WITH THE UNITED STATES ARMY FORCES FAR EAST DURING WORLD WAR II.

OUR RECORDS SHOW THAT ON JUNE 7, 1968, YOU PRESENTED A CLAIM TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ON THE BASIS OF YOUR MILITARY SERVICE DURING THE PERIOD FEBRUARY 12, 1942, TO NOVEMBER 14, 1945. THE FINANCE CENTER FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION WHERE IT WAS RECEIVED ON AUGUST 12, 1968.

SINCE ON AUGUST 12, 1968, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE, NOVEMBER 14, 1945 (THE DATE ON WHICH YOUR CLAIM ACCRUED), OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU ON AUGUST 21, 1968, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, READS IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN A LETTER DATED SEPTEMBER 25, 1968, YOU ADVISED THE CLAIMS DIVISION THAT THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, WERE NOT KNOWN TO YOU IN 1945, AND THEREFORE, SHOULD NOT BE APPLIED. BY LETTER OF NOVEMBER 21, 1968, OUR CLAIMS DIVISION EXPLAINED THE EFFECT OF THE ACT OF OCTOBER 9, 1940, AND AGAIN ADVISED YOU THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THAT ACT BECAUSE YOUR CLAIM WAS NOT FILED IN PROPER TIME. IN THAT LETTER YOU WERE FURTHER ADVISED THAT THE GENERAL ACCOUNTING OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THE ABOVE ACT AND THEREFORE, NO EXCEPTIONS TO ITS PROVISIONS COULD BE MADE. IN YOUR PRESENT LETTER YOU AGAIN SAY YOU WERE NOT AWARE OF THE 1940 LAW.

IN PRESENTING YOUR CLAIM YOU RELIED ON THE MUSTERING-OUT PAYMENT ACT OF 1944, CERTAIN ADMINISTRATIVE REGULATIONS PROMULGATED PURSUANT TO THAT ACT AND SECTION 14 OF PUBLIC LAW 190-49 (79-190) APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 543. SECTION 14 OF THE LATTER ACT, HOWEVER, DOES NOT PERTAIN TO 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 PHILIPPINE ISLANDS AND CERTAIN AREAS OUTSIDE THE PHILIPPINES ON OR AFTER OCTOBER 6, 1945. THEREFORE, THAT PROVISION OF LAW HAS NO BEARING ON YOUR CLAIM.

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.

YOUR CLAIM ACCRUED ON NOVEMBER 14, 1945, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED IT BEFORE NOVEMBER 14, 1955. SINCE IT WAS NOT RECEIVED HERE UNTIL AUGUST 12, 1968, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO ADVISE YOU THAT CONSIDERATION THEREOF WAS BARRED. THE FACT THAT YOU MAY HAVE BEEN UNAWARE OF THE 1940 ACT AFFORDS NO LEGAL BASIS FOR OUR CONSIDERATION OF YOUR CLAIM.

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