B-168909, FEB. 16, 1970

B-168909, FEB. 16, 1970

MILITARY--MUSTERING-OUT PAY--WORLD WAR II DECISION TO WIDOW OF FORMER PHILIPPINE SCOUT SUSTAINING DISALLOWANCE OF CLAIM FOR MUSTERING-OUT PAY INCIDENT TO DISCHARGE FROM PHILIPPINE SCOUTS IN 1949.

TO MRS. VICTORINA G. VDA DE MABABA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1969, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY AS WIDOW OF FAUSTO M. MABABA, BELIEVED DUE INCIDENT TO HIS DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1949. YOUR LETTER WAS FORWARDED TO OUR OFFICE FOR REPLY AND WAS RECEIVED HERE ON SEPTEMBER 25, 1969.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED APRIL 18, 1968, AND OCTOBER 1, 1968, IN WHICH YOU WERE ADVISED THAT THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, BARS CONSIDERATION OF YOUR CLAIM BY THIS OFFICE DUE TO THE FACT THAT SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD THERE PRESCRIBED. YOU WERE FURTHER ADVISED THAT YOUR LACK OF KNOWLEDGE OF THAT ACT WAS NOT A LEGAL BASIS FOR THE CONSIDERATION OF YOUR CLAIM SINCE THIS OFFICE IS WITHOUT AUTHORITY TO WAIVE ANY PROVISION OF THE 1940 ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION THERE IMPOSED.

YOU NOW CONTEND THAT YOU ARE ENTITLED TO THE MUSTERING-OUT PAY BELIEVED DUE YOUR DECEASED HUSBAND "UNDER THE PROVISIONS OF THE NEW ACT NO. 263 OF THE 88TH CONGRESS DATED JANUARY 9, 1963 AND APPROVED ON SEPTEMBER 30, 1968." WE CANNOT IDENTIFY THE LAW TO WHICH YOU REFER. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31, 1964), NOR ANY LAW ENACTED SEPTEMBER 30, 1968, IN ANY WAY RELATES TO MUSTERING OUT PAY. NO LAW WAS ENACTED OR APPROVED JANUARY 9, 1963.

YOU ALSO REFER TO "THE PROVISIONS OF 311-322 OF T. M. 502, MUSTERING OUT PAY LAW." PRESUMABLY, YOU HAVE REFERENCE TO REGULATIONS CONTAINED IN TM 14-502, CHAPTER 10, SECTION V, MUSTERING-OUT PAYMENTS, WHICH WERE ISSUED UNDER AUTHORITY 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 THAT ACT PROVIDED FOR MAXIMUM PAYMENT OF $300 TO OTHERWISE QUALIFIED PERSONS WHO SERVED 60 DAYS OR MORE AND SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. HOWEVER, IF YOUR HUSBAND WAS ENTITLED TO MUSTERING-OUT PAY UNDER THAT ACT, CLAIM THEREFOR, LIKE OTHER CLAIMS FOR MUSTERING-OUT PAY, WAS SUBJECT TO THE TIME LIMITATION IMPOSED BY THE 1940 ACT, WHICH BARS CONSIDERATION OF ANY CLAIM NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

SINCE YOU STATE THAT YOUR HUSBAND WAS DISCHARGED FROM MILITARY SERVICE IN MARCH 1949, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED YOUR CLAIM WITHIN 10 YEARS AFTER THE DATE OF HIS DISCHARGE IN ORDER TO AVOID THE BAR OF THE 1940 ACT. IN VIEW OF THE FACT THAT YOUR CLAIM WAS FIRST RECEIVED HERE ON APRIL 8, 1968, MORE THAN 19 YEARS AFTER THE DATE OF YOUR HUSBAND'S DISCHARGE, THERE IS NO FURTHER ACTION THIS OFFICE MAY TAKE ON SUCH CLAIM.