B-170895, OCT. 19, 1970

B-170895, OCT. 19, 1970

MUSTERING-OUT PAY - FAMILY ALLOWANCE SUSTAINING SETTLEMENT OF PRIOR ACTION, OCT. 31, 1967, AND APRIL 25, 1968 RELATING TO MUSTERING-OUT PAY AND FURTHER ADVISING THAT THE CLAIM FOR SUCH PAY IS BARRED FROM CONSIDERATION BY GAO BY THE ACT OF OCT. 9, 1940, WHICH REQUIRES THAT GAO RECIEVE CLAIMS WITHIN 10 YEARS FROM THE DATE THEY ACCRUE. WITH RESPECT TO THE CLAIM FOR FAMILY ALLOWANCE THE LAW PROVIDES FOR PAYMENT OF A FAMILY ALLOWANCE TO THE DEPENDENTS OF CERTAIN CLASSES OF ENLISTED MEN; HOWEVER UNDER THE "ENLISTED MAN" TERM, IT DOES NOT INCLUDE MEMBERS OF THE PHILIPPINE ARMY OR PHILIPPINE SCOUTS.

TO MR. BENJAMIN A. VARGAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 22, 1969, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH HAS BEEN FORWARDED TO OUR OFFICE FOR REPLY, CONCERNING YOUR CLAIMS FOR MUSTERING-OUT PAY AND FAMILY ALLOWANCE BELIEVED DUE INCIDENT TO YOUR MILITARY SERVICE DURING WORLD WAR II.

THESE MATTERS WERE THE SUBJECTS OF LETTERS FROM OUR CLAIMS DIVISION DATED APRIL 4, 1966, JUNE 29, 1967 (RELATING TO FAMILY ALLOWANCE), AND OCTOBER 31, 1967, AND APRIL 25, 1968 (RELATING TO MUSTERING-OUT PAY) IN EACH OF WHICH YOU WERE ADVISED THAT CONSIDERATION OF THE PARTICULAR CLAIM THERE INVOLVED WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT PROVIDES 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 *** SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED *** ."

IN SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY, YOU CONTEND THAT SUCH PAY IS AUTHORIZED "UNDER PROVISION OF ACT NO. 263 88TH CONGRESS DATED JANUARY 9, 1963 AND APPROVED SEPTEMBER 30, 1965."

WE ARE UNABLE TO IDENTIFY THE LAW TO WHICH YOU REFER. NEITHER PUBLIC LAW 88-263 (WHICH WAS APPROVED JANUARY 31, 1964), NOR ANY LAW ENACTED SEPTEMBER 30, 1965, IN ANY WAY RELATES TO MUSTERING-OUT PAY. NO LAW WAS ENACTED OR APPROVED ON JANUARY 9, 1963.

YOU ALSO REFER TO "PROVISION OF 311-322 T.W. 502 MUSTERING OUT PAY *** ." PRESUMABLY YOU HAVE REFERENCE TO T.M. 14-502, CHAPTER 10, SECTION V, MUSTERING-OUT PAYMENTS, WHICH RELATES TO PAYMENTS UNDER THE MUSTERING-OUT PAYMENTS, WHICH RELATES TO PAYMENTS UNDER THE MUSTERING OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 ET SEQ. (1946 ED.).

THE MUSTERING-OUT PAYMENT ACT OF 1944 AUTHORIZED THE PAYMENT OF MUSTERING -OUT PAY TO MEMBERS OF THE ARMED FORCES WHO ENGAGED IN ACTIVE SERVICE FOR VARIOUS PERIODS OF TIME DURING WORLD WAR II. SECTION 6(A) OF THAT ACT DEFINED THE TERM "MEMBER OF THE ARMED FORCES" TO MEAN--

" *** ANY MEMBER OF THE ARMY OR NAVY OF THE UNITED STATES, THE UNITED STATES MARINE CORPS, THE UNITED STATES COAST GUARD OR ANY OF THEIR RESPECTIVE COMPONENTS *** ."

WHILE YOU MENTION THE PHILIPPINE SCOUTS AND THE USAFFE, CORRESPONDENCE FROM YOU INDICATES THAT THE SERVICE YOU PERFORMED MAY NOT HAVE BEEN AS A MEMBER OF ONE OF THE ORGANIZATIONS MENTIONED ABOVE, BUT RATHER AS A MEMBER OF THE PHILIPPINE ARMY. SHOULD THAT BE CORRECT, NO RIGHT TO MUSTERING-OUT PAY WOULD HAVE ACCRUED TO YOU UNDER ANY OF THE PROVISIONS OF LAW RELATING THERETO. WE ARE NOT AWARE OF ANY LAW WHICH ENTITLED MEMBERS OF THE PHILIPPINE ARMY SERVING WITH THE USAFFE TO RECEIVE MUSTERING-OUT PAY DIRECTLY FROM THE UNITED STATES GOVERNMENT. IF YOU DID SERVE AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES, PAYMENT OF YOUR CLAIM IS BARRED BY THE 1940 ACT.

FUNDS FOR PAYMENT OF ITEMS OF PAY AND ALLOWANCES AUTHORIZED FOR MEMBERS OF THE ORGANIZED MILITARY FORCES OF THE COMMONWEALTH OF THE PHILIPPINES SERVING IN WORLD WAR II WERE APPROPRIATED BY THE UNITED STATES GOVERNMENT AND TRANSFERRED TO THE PHILIPPINE GOVERNMENT FOR PAYMENT. IN THIS REGARD AN AGREEMENT BETWEEN THE UNITED STATES AND THE REPUBLIC OF THE PHILIPPINES ENTITLED "SETTLEMENT OF VETERANS CLAIMS" BECAME EFFECTIVE ON JUNE 29, 1967. THAT AGREEMENT PROVIDED FOR THE PAYMENT OF FUNDS BY THE UNITED STATES TO THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES IN FULL SETTLEMENT OF VARIOUS CLAIMS FOR BACK PAY AND ALLOWANCES ARISING FROM MILITARY SERVICE BY MEMBERS OF THE PHILIPPINE ARMY AND RECOGNIZED PHILIPPINE GUERRILLAS DURING WORLD WAR II WHO HAD NOT BEEN PREVIOUSLY PAID AND WHOSE NAMES APPEARED ON THE UNITED STATES APPROVED REVISED FINAL ROSTER OF MARCH 1948.

IF YOU BELIEVE YOU HAVE A VALID CLAIM FOR PAYMENT OF MUSTERING-OUT PAY OUT OF THE ABOVE MENTIONED FUNDS, SUCH CLAIM SHOULD BE SUBMITTED TO THE PHILIPPINE GOVERNMENT. THERE IS NO ACTION WE LEGALLY MAY TAKE IN THE MATTER.

FURTHER WITH RESPECT TO THE MATTER OF FAMILY ALLOWANCE, THE SERVICEMAN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, PROVIDED FOR THE PAYMENT OF A FAMILY ALLOWANCE TO THE DEPENDENTS OF CERTAIN CLASSES OF ENLISTED MEN IN THE CIRCUMSTANCES THERE PRESCRIBED. HOWEVER, SECTION 120(I) OF THAT ACT DEFINED THE TERM "ENLISTED MAN" AS NOT INCLUDING "ANY MEMBER OF *** THE PHILIPPINE ARMY, THE PHILIPPINE SCOUTS *** ."