B-171464, JAN 5, 1971

B-171464, JAN 5, 1971

MUSTERING-OUT PAY DENIAL OF CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO SERVICE IN THE PHILIPPINE SCOUTS DURING WORLD WAR II ON BASIS THAT WHERE THE CLAIM IS NOT RECEIVED WITHIN 10 YEARS FROM THE DATE IT ACCRUED, IT IS BARRED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A.

TO MR. ESTEBAN A. GUTING:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 1, 1970, ADDRESSED TO THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, WHICH WAS FORWARDED TO THIS OFFICE FOR REPLY, CONCERNING YOUR CLAIM FOR MUSTERING- OUT PAY IN THE AMOUNT OF $3,600 BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS IN 1947.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED NOVEMBER 5, 1957, AND MAY 1, 1958, IN WHICH YOU WERE ADVISED THAT CONSIDERATION BY THIS OFFICE OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT READS 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 CONNECTION WITH THE ABOVE-QUOTED ACT, 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 UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

IN SUPPORT OF YOUR CLAIM FOR MUSTERING-OUT PAY YOU CONTEND THAT SUCH PAY IS "AUTHORIZED UNDER THE PROVISIONS OF ACT. 263-322 OF THE 88TH CONGRESS DATED JANUARY 1963 APPROVED SEPTEMBER 30, 1965." YOU ALSO REFER TO THE PROVISIONS OF "311-322 T. M. 502 MUSTERING OUT-PAY LAW."

WE ARE UNABLE TO IDENTIFY THE LAWS TO WHICH YOU REFER. NONE OF THE LAWS WHICH YOU MENTION SPECIFICALLY NOR ANY LAW ENACTED ON SEPTEMBER 30, 1965, IN ANY WAY RELATES TO MUSTERING-OUT PAY. NO LAWS WERE ENACTED DURING THE MONTH OF JANUARY 1963.

THE PROVISIONS OF LAW GOVERNING MUSTERING-OUT PAY AT THE TIME YOU WERE DISCHARGED FROM MILITARY SERVICE, WERE CONTAINED IN THE MUSTERING OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.). APPLICABLE REGULATIONS ISSUED BY THE WAR DEPARTMENT UNDER AUTHORITY OF THAT ACT ARE CONTAINED IN PARAGRAPHS 313 322, T. M. 14-502.

SECTION 2(A)(1) OF THE 1944 ACT PROVIDED FOR THE MAXIMUM PAYMENT OF $300 TO PERSONS WHO SERVED 60 DAYS OR MORE AND SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. IN CONNECTION WITH THIS ACT, TITLE II OF THE ACT OF MAY 27, 1946, CH. 271, 60 STAT. 223, PROVIDED THAT THE MUSTERING-OUT PAYMENT ACT OF 1944 SHOULD BE DEEMED APPLICABLE TO PERSONS WHO PERFORMED SERVICE IN THE PHILIPPINE SCOUTS UNDER SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 543, BUT PAYMENT WAS TO BE MADE AT THE RATE OF ONE PHILIPPINE PESO FOR EACH DOLLAR AUTHORIZED BY THE 1944 ACT. IN OTHER WORDS, UNDER THE PROVISIONS OF THOSE LAWS, THE MAXIMUM AMOUNT THAT COULD BE PAID AS MUSTERING-OUT PAY TO A PHILIPPINE SCOUT UPON DISCHARGE, EVEN THOUGH HE MAY HAVE SERVED MORE THAN 60 DAYS INCLUDING SERVICE OUTSIDE THE PHILIPPINES ON OR AFTER OCTOBER 6, 1945, WAS 300 PESOS.

CLAIMS FOR MUSTERING-OUT PAY ARE SUBJECT TO THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT EVERY CLAIM COGNIZABLE BY THIS OFFICE BE RECEIVED HERE WITHIN 10 FULL YEARS FROM THE DATE SUCH CLAIM FIRST ACCRUED. SINCE THE RECORD SHOWS THAT YOU WERE DISCHARGED FROM MILITARY SERVICE ON APRIL 15, 1947, YOUR CLAIM COULD BE CONSIDERED ON ITS MERITS, ONLY IF IT WAS RECEIVED HERE ON OR BEFORE APRIL 15, 1957. OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED HERE OCTOBER 25, 1957, MORE THAN 10 YEARS AFTER YOUR DISCHARGE.

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