B-166524, APR. 24, 1969

B-166524, APR. 24, 1969

TO MR. EUSTACIO S. GALVEZ: 4

FURTHER REFERENCE IS MADE TO YOUR RECENT UNDATED LETTER ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY UNDER DATE OF NOVEMBER 18, 1968, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $3,600 INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS.

OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED FEBRUARY 20, 1968, AND JUNE 17, 1968, IN WHICH YOU WERE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CONSIDER SUCH CLAIMS SINCE THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, FOREVER BARS ANY CLAIM AGAINST THE UNITED STATES WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. YOU WERE ALSO ADVISED IN THE LETTER OF JUNE 17, 1968, THAT WHILE YOU MAY HAVE FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY, SUCH FILING IS NOT DEEMED TO BE IN COMPLIANCE WITH THE 1940 ACT WHICH REQUIRES THAT CLAIMS MUST BE TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE. CONNECTION WITH THE FOREGOING, 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 GOVERNMENT OF THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THE GENERAL ACCOUTING OFFICE.

IN SUPPORT OF YOUR CLAIM, YOU INVITE ATTENTION TO SECTION 14 OF THE ACT OF OCTOBER 4 (6), 1945, CH. 393, 59 STAT. 543, AND CERTAIN REGULATIONS (APPARENTLY PARAGRAPHS 311-322, TM 14-502, AUGUST 1946, WHICH RELATE TO PAYMENTS UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944), IN THE APPARENT BELIEF THAT SUCH PROVISIONS AUTHORIZED PAYMENT OF MUSTERING-OUT PAY TO YOU IN THE AMOUNT OF $3,600. ADDITIONALLY, YOU CONTEND THAT THE "PROVISION OF ACT. 263-88 CONGRESS DATED JANUARY 9, 1963, AND APPROVED SEPTEMBER 30, 1965," HAS A BEARING ON YOUR CLAIM.

NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31, 1964), NOR ANY LAW ENACTED ON SEPTEMBER 30, 1965, IN ANY WAY RELATES TO MUSTERING-OUT PAY. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9, 1963. PRESUMABLY, YOU HAVE REFERENCE TO PUBLIC LAW 89-50, APPROVED JUNE 24, 1965, 79 STAT. 173, WHICH EXTENDS THE TIME FOR FILING CERTAIN CLAIMS FOR MUSTERING-OUT PAYMENTS. THAT ACT 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 FOR SERVICE DURING THE KOREAN CONFLICT BY REASON OF THEIR FAILURE TO MAKE APPLICATION THEREFOR PRIOR TO THE STATUTORY DEADLINE OF JULY 17, 1959.

INASMUCH AS YOU WERE DISCHARGED FROM MILITARY SERVICE ON JUNE 30, 1946, WHICH WAS BEFORE 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, DOES NOT PERTAIN TO THE PAYMENT OF MUSTERING OUT PAY. 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.

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 (NOT $3,600) TO PERSONS WHO SERVED 60 DAYS OR MORE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

IN YOUR LETTER OF NOVEMBER 12, 1967, YOU STATED THAT YOU RECEIVED MUSTERING-OUT PAY AT THE TIME OF YOUR DISCHARGE ON JUNE 30, 1946, BUT NOT FOR THE TIME YOU SPENT AS A PHILIPPINE SCOUT. IN THIS REGARD, WE DIRECT YOUR ATTENTION TO SECTION 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, WHICH PROVIDES IN PERTINENT PART:

"* * * NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT UNDER THIS ACT MORE THAN ONCE, AND SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE * * *.'

ACCORDINGLY, SINCE IT APPEARS THAT YOU HAVE RECEIVED MUSTERING-OUT PAY (PRESUMABLY, IN THE PROPER AMOUNT) AT THE TIME OF YOUR DISCHARGE IN 1946, THERE IS NO BASIS FOR THE PAYMENT OF YOUR CLAIM AND FURTHER ACTION BY THIS OFFICE IN CONNECTION WITH THIS MATTER WOULD NOT BE APPROPRIATE.