B-149146, JUL. 24, 1962

B-149146, JUL. 24, 1962

TO MASTER SERGEANT NICASIO REMERATA, USA, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1962, REQUESTING REVIEW OF THE SETTLEMENT OF MAY 21, 1962, WHICH DISALLOWED YOUR CLAIM FOR COMMUTATION OF RATIONS AND CLOTHING ALLOWANCE FOR THE PERIOD OCTOBER 26, 1942, TO JUNE 13, 1945, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY (PHILIPPINE SCOUTS).

YOUR CLAIM IS BASED ON SECTION 2 (B) OF THE ACT OF AUGUST 29, 1957,71 STAT. 492, WHICH AMENDED SECTION 2 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 143 (50 U.S.C. APP. 1002), TO PROVIDE THAT ENTITLEMENT TO PAY AND ALLOWANCES UNDER THAT SECTION SHOULD NOT BE DENIED IN THE CASE OF ANY MEMBER OF THE PHILIPPINE SCOUTS WHO WAS CAPTURED IN THE PHILIPPINE ISLANDS BY THE ENEMY DURING WORLD WAR II, SOLELY ON THE GROUND THAT SUCH MEMBER WAS PAROLED AND PERMITTED TO RETURN TO HIS HOME AND ENGAGE IN CIVILIAN PURSUITS PRIOR TO THE TERMINATION OF THE JAPANESE OCCUPATION OF SUCH ISLANDS. IT FURTHER PROVIDES THAT CLAIMS OF MEMBERS OF THE PHILIPPINE SCOUTS FOR PAY AND ALLOWANCES UNDER THE SUBSECTION (WHETHER OR NOT SUCH CLAIMS HAVE BEEN PRESENTED AND REJECTED OR DISALLOWED) MAY, UNTIL THREE YEARS AFTER AUGUST 29, 1957, BE PRESENTED FOR CONSIDERATION OR RECONSIDERATION AND PAYMENT. SECTION 9 OF THE MISSING PERSONS ACT, 56 STAT. 145, AS AMENDED (50 U.S.C. APP. 1009), PROVIDES THAT WITHIN THE SCOPE OF THE AUTHORITY GRANTED BY THAT ACT, DETERMINATIONS BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH PERSON AS HE MAY DESIGNATE, OF THE STATUS OF A PERSON IN THE MILITARY OR NAVAL FORCES AS DEFINED IN SECTION 1 OF THE ACT, RELATIVE TO THE CONTINUANCE, TEMPORARY SUSPENSION, OR RESUMPTION OF PAYMENT OF PAY AND ALLOWANCES, WHILE IN A CASUALTY STATUS SHALL BE CONCLUSIVE.

THE RECORD SHOWS THAT YOUR CLAIM FOR PAY AND ALLOWANCES WAS CONSIDERED BY THE DEPARTMENT OF THE ARMY UNDER THE ACT OF AUGUST 29, 1957, AND ALLOWANCE WAS AUTHORIZED TO THE EXTENT THAT LEGAL BASIS THEREFOR WAS FOUND. THUS, $1,604.88, LESS FEDERAL WITHHOLDING TAX OF $288.88, OR $1,316 WAS PAID TO YOU BY SETTLEMENT OF THIS OFFICE DATED SEPTEMBER 24, 1959, BASED ON THE DETERMINATION BY THE DEPARTMENT OF THE ARMY, AND IT APPEARS THAT THE DEPARTMENT OF THE ARMY ALSO ALLOWED YOU AN ADDITIONAL AMOUNT OF $471.

THE PURPOSE OF COMMUTATION OF RATIONS IS TO REIMBURSE MEMBERS WHO ARE NOT FURNISHED RATIONS IN KIND AND WHO ARE REQUIRED TO PURCHASE RATIONS AT PERSONAL EXPENSE IN LIEU OF RATIONS IN KIND. THE DEPARTMENT OF THE ARMY DETERMINED, THEREFORE, WITH RESPECT TO ENLISTED MEMBERS IN SITUATIONS SUCH AS YOURS, THAT PRISONERS OF WAR ARE NOT ENTITLED TO COMMUTATION OF RATIONS BY VIRTUE OF BEING PRISONERS OF WAR BECAUSE THEY ARE FURNISHED SUBSISTENCE AND QUARTERS IN KIND BY THEIR CAPTORS UNDER THE PROVISIONS OF ARTICLE VIII OF THE HAGUE CONVENTION. ALSO, IT WAS DETERMINED THAT THE PAYMENT OF A SUBSISTENCE ALLOWANCE TO THOSE PERSONS WHO EVADED CAPTURE, ESCAPED, WERE RELEASED BY THE JAPANESE GOVERNMENT AND/OR SERVED WITH A GUERRILLA ORGANIZATION IS NOT AUTHORIZED ON THE PRINCIPLE THAT THEY WERE ABLE, DURING THE JAPANESE OCCUPATION IN THE PHILIPPINES, TO MAINTAIN A REASONABLE LIVELIHOOD AS EVIDENCED BY AFFIDAVITS SIGNED AND SWORN TO UPON RETURN TO MILITARY CONTROL. CLOTHING MONEY ALLOWANCE FOR ALL ENLISTED MEN, INCLUDING PHILIPPINE SCOUTS WAS SUSPENDED EFFECTIVE SEPTEMBER 15, 1940, BY DIRECTION OF THE PRESIDENT OF THE UNITED STATES, BY WAR DEPARTMENT CIRCULAR 97, 1940, AND THE ACT OF JULY 1, 1947, 61 STAT. 242, AMENDING SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, TO AUTHORIZE CLOTHING ALLOWANCE AFTER JULY 1, 1947, DOES NOT PROVIDE FOR RETROACTIVE PAYMENT TO PHILIPPINE SCOUTS FOR CLOTHING NOT FURNISHED IN KIND PRIOR TO THAT DATE. THEREFORE, FOR THOSE REASONS, THE FINANCE CENTER, DEPARTMENT OF THE ARMY, UPON CONSIDERATION OF YOUR CLAIM, DETERMINED ADMINISTRATIVELY THAT YOU ARE NOT ENTITLED TO THE COMMUTATION OF RATIONS AND CLOTHING ALLOWANCE, AND ADMINISTRATIVE DETERMINATIONS UNDER THE MISSING PERSONS ACT ARE FINAL AND CONCLUSIVE. SEE FERRER V. UNITED STATES, 132 CT.CL. 442; LOGRONIO V. UNITED STATES, 132 CT.CL. 596; MORENO V. UNITED STATES, 118 CT.CL. 30.

SINCE THERE IS NO BASIS FOR THE PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF MAY 21, 1962, WAS CORRECT AND IS SUSTAINED.