B-171218, DEC. 9, 1970

B-171218, DEC. 9, 1970

MUSTERING-OUT PAY DENIAL OF CLAIM FOR MUSTERING-OUT PAY INCIDENT TO DISCHARGE FROM THE PHILIPPINE SCOUTS ON MAY 3, 1949. THE CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A WHICH REQUIRES THAT THE CLAIM BE RECEIVED BY THE GAO WITHIN 10 YEARS AFTER IT ACCURED.

TO MR. PEDRO C. EUSTAQUIO:

THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, HAS FORWARDED TO THIS OFFICE FOR CONSIDERATION YOUR LETTER OF SEPTEMBER 22, 1969, IN WHICH YOU CLAIM MUSTERING-OUT PAY IN THE AMOUNT OF $3,000 BELIEVED TO HAVE BEEN DUE UPON DISCHARGE FROM THE PHILIPPINE SCOUTS ON MAY 3, 1949.

IT IS SHOWN BY OUR FILES THAT ON FEBRUARY 1, 1967, YOU WROTE TO THE FINANCE CENTER STATING THAT WHILE SERVING IN THE PHILIPPINE SCOUTS YOU WERE ON OVERSEAS DUTY WITH A DESIGNATED UNIT DURING THE PERIOD MARCH 5, 1948, TO APRIL 19, 1949. YOU ALSO SAID THAT UPON DISCHARGE YOU WERE PAID MUSTERING-OUT PAY IN THE AMOUNT OF $100, BUT NOT THE ADDITIONAL $50 WHICH WAS PAYABLE TO THOSE WHO SERVED OVERSEAS. YOU THEREFORE PRESENTED A CLAIM FOR ADDITIONAL MUSTERING-OUT PAY IN THE AMOUNT OF $50. THAT CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION AND WAS RECEIVED ON MARCH 3, 1967.

ON MARCH 3, 1967, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS. THEREFORE, AND SINCE THE FILE DID NOT SHOW YOU HAD FILED AN EARLIER CLAIM WITH OUR CLAIMS DIVISION, THAT DIVISION ADVISED YOU IN A LETTER DATED MARCH 30, 1967, THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, A COPY OF WHICH WAS FURNISHED TO YOU. ALSO, AS REQUIRED BY THAT ACT, THE CLAIM WAS RETURNED TO YOU.

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 JUNE 19, 1967, TO THE DIRECTOR, CLAIMS DIVISION, YOU REQUESTED RECONSIDERATION OF THE CLAIM ON THE BASIS THAT THE ABOVE QUOTED ACT WAS NOT APPLICABLE IN YOUR CASE SINCE YOU SAID A CLAIM HAD BEEN FILED WITH THE SETTLEMENTS DIVISION, FINANCE CENTER, U.S. ARMY, ST. LOUIS, MISSOURI, ON OCTOBER 18, 1953, OR WITHIN 10 YEARS FROM THE DATE OF YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS. IN RESPONSE, OUR CLAIMS DIVISION ON JULY 20, 1967, INFORMED YOU, AMONG OTHER THINGS, THAT THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT IS NOT CONSIDERED AS SUFFICIENT COMPLIANCE WITH THE ACT SINCE IT REQUIRES THAT CLAIMS BE TIMELY FILED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

AS INDICATED IN YOUR LETTER OF SEPTEMBER 22, 1969, YOU NOW BASE YOUR CLAIM FOR THE ADDITIONAL MUSTERING-OUT PAY--FOR $3,000 RATHER THAN $50 AS INITIALLY CLAIMED--ON THE AUTHORITY OF "THE PROVISION OF ACT. 263 OF THE 88TH U.S. CONGRESS, DATED JUNE 9, 1963, AND APPROVED SEPTEMBER 30, 1965." ALSO, YOU SAY THAT UNDER THE PROVISIONS OF "311-322 OF T.M. 502, MUSTERING OUT PAY LAW" MEMBERS OF THE PHILIPPINE SCOUTS, AUS AND USAFFE, IN THE PHILIPPINES AND IN ALASKA WHO WERE HONORABLY DISCHARGED FROM THE SERVICE ARE ENTITLED TO MUSTERING-OUT PAY UNDER THE ACT YOU CITED.

WE ARE NOT AWARE OF ANY STATUTORY PROVISION FOR THE PAYMENT OF $3,000 AS MUSTERING-OUT PAY TO MEMBERS OF THE UNIFORMED SERVICES, INCLUDING PHILIPPINE SCOUTS. AND, WE ARE UNABLE TO IDENTIFY "ACT NO. 263." PUBLIC LAW 88-263 WAS ENACTED ON JANUARY 31, 1964, AND DOES NOT RELATE TO MUSTERING-OUT PAY. ALSO, NO LAW WAS ENACTED ON JUNE 9, 1963, AND THE THREE SEPARATE LAWS WHICH WERE ENACTED ON SEPTEMBER 30, 1965, DEAL WITH SUBJECTS OTHER THAN MUSTERING-OUT PAY.

CONCERNING THE REGULATION YOU CITED, PRESUMABLY YOU INTEND TO MAKE REFERENCE TO T.M. 502 (WAR DEPARTMENT TECHNICAL MANUAL 14-502, AUGUST 1946). PARAGRAPH 314 OF THAT MANUAL AS IT RELATES TO PHILIPPINE SCOUTS SPECIFIED THAT EFFECTIVE MAY 27, 1946, MEMBERS OF THAT ORGANIZATION WHO ENLISTED UNDER THE PROVISIONS OF SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 543, ARE ENTITLED TO MUSTERING-OUT PAYMENTS, EXCEPT THAT FOR THE PURPOSE OF COMPUTING SUCH PAYMENTS FOR SERVICE IN THE PHILIPPINE SCOUTS, SERVICE WHOLLY PERFORMED IN THE PHILIPPINES WILL BE COMPENSATED ON THE SAME BASIS AS SERVICE WHOLLY PERFORMED WITHIN THE UNITED STATES. FURTHER SPECIFIES THAT MUSTERING-OUT PAYMENTS UNDER THAT LAW WILL BE PAID AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.).

AS STATED ABOVE, YOU PREVIOUSLY CLAIMED ADDITIONAL MUSTERING-OUT PAY OF $50, STATING THAT YOU RECEIVED $100 AT THE TIME OF YOUR DISCHARGE. HOWEVER, IF YOU WERE ENTITLED TO AN ADDITIONAL PAYMENT UNDER THE MUSTERING -OUT PAYMENT ACT OF 1944, YOUR CLAIM FOR SUCH AMOUNT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS AFTER YOUR CLAIM FIRST ACCRUED. SINCE YOUR CLAIM WAS RECEIVED HERE ALMOST 18 YEARS AFTER MAY 3, 1949, THE DATE OF YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS AND THE DATE YOUR CLAIM FIRST ACCRUED, THE DISPOSITION OF SUCH CLAIM IS GOVERNED BY THE ABOVE-MENTIONED ACT OF OCTOBER 9, 1940. UNDER THAT ACT THIS OFFICE IS PRECLUDED FROM CONSIDERING YOUR CLAIM ON ITS MERITS BECAUSE OF SUCH LATE FILING AND, ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT THERE IS NO FURTHER ACTION WHICH WE MAY TAKE THEREON.