B-161138, SEP. 7, 1967

B-161138, SEP. 7, 1967

ARMED SERVICES - PAY - PHILIPPINE SCOUT DECISION TO FATHER OF DECEASED PHILIPPINE SCOUT FOR ARREARS OF PAY. SINCE CLAIM FOR ARREARS OF PAY INCIDENT TO SON'S SERVICE IN PHILIPPINE SCOUTS WAS NOT FILED IN GAO UNTIL MORE THAN 23 YEARS AFTER CLAIM ACCRUED, BARRED ACT OF 1940 PRECLUDES CONSIDERATION. PRESUMABLY ARREARS OF PAY WAS SETTLED UNDER PHILIPPINE REPUBLIC ACT NO. 136.

TO MR. SULPICIO O. ODO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 1, 1967, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM AS FATHER FOR ARREARS OF PAY BELIEVED DUE YOUR SON, SANTOS P. ODO, ON THE DATE OF HIS DEATH, MAY 8, 1942, AS A MEMBER OF THE USAFFE.

IN DECISION OF APRIL 19, 1967, B-161138, COPY ENCLOSED, WE ADVISED YOU THAT SINCE YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 17, 1966, IT WAS RETURNED TO YOU BY OUR CLAIMS DIVISION ON AUGUST 30, 1966, WITH THE ADVICE THAT SINCE IT WAS NOT RECEIVED WITHIN 10 FULL YEARS AFTER IT FIRST ACCRUED, IT WAS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. WE ALSO POINTED OUT THAT IN A LETTER DATED JANUARY 24, 1967, OUR CLAIMS DIVISION HAD EXPLAINED TO YOU THAT THE 1940 ACT BARRED OUR CONSIDERATION OF THE CLAIM EVEN THOUGH YOU MAY HAVE PREVIOUSLY FILED A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT SUCH AS THE DEPARTMENT OF THE ARMY OR THE VETERANS ADMINISTRATION. RESPONSE TO A STATEMENT IN YOUR LETTER OF MARCH 13, 1967, THAT YOU HAD FILED A TIMELY CLAIM WITH THE VETERANS ADMINISTRATION WE POINTED OUT IN THE DECISION THAT ALTHOUGH THE VETERANS ADMINISTRATION AND THE GENERAL ACCOUNTING OFFICE ARE BOTH AGENCIES OF THE GOVERNMENT, THEY ARE SEPARATE AND DISTINCT OFFICES AND THAT THE FILING OF A CLAIM IN THE VETERANS ADMINISTRATION, NORMALLY FOR DIFFERENT BENEFITS THAN WOULD BE CONSIDERED HERE, DOES NOT CONSTITUTE THE FILING OF A CLAIM WITH THE GENERAL ACCOUNTING OFFICE AS REQUIRED BY LAW.

IN YOUR PRESENT LETTER YOU SAY THAT THE ARMY AND VETERANS ADMINISTRATION HAD BRANCH OFFICES IN THE PHILIPPINES, THAT THIS OFFICE HAD NONE, AND THAT VETERANS AND THEIR SURVIVING PARENTS LEARNED ONLY BY CHANCE THAT CERTAIN CLAIMS SHOULD BE SENT TO OUR OFFICE IN WASHINGTON. FOR THAT REASON YOU BELIEVE YOUR CLAIM SHOULD BE PAID EVEN THOUGH IT WAS NOT FILED HERE UNTIL MORE THAN 24 YEARS AFTER IT FIRST ACCRUED.

AS WE HAVE PREVIOUSLY INDICATED, THE ACT OF OCTOBER 9, 1940, UNEQUIVOCABLY PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM IS FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS AFTER THE DATE IT ACCRUED. HENCE, THE FACT THAT WE DID NOT ESTABLISH A BRANCH OFFICE IN THE PHILIPPINES FOLLOWING THEIR LIBERATION DURING WORLD WAR II OR THAT YOU WERE UNAWARE OF THE PROVISIONS OF THE 1940 ACT AFFORDS NO LEGAL BASIS TO GIVE CONSIDERATION TO YOUR CLAIM ON ITS MERITS.

IT MAY BE STATED THAT PHILIPPINE REPUBLIC ACT NO. 136, SECTION 1, AS AMENDED BY REPUBLIC ACT NO. 209, SECTION 2, NOW CONTAINED IN SECTION 58 OF TITLE 78 PHILIPPINE ANNOTATED LAWS, PROVIDES, AMONG OTHER THINGS, THAT MONIES UNDER THE LAWS OF THE UNITED STATES AND OF THE PHILIPPINES DUE TO DECEASED OR INCOMPETENT FILIPINOS WHO WERE MEMBERS OF THE UNITED STATES ARMY, UNITED STATES NAVY, OR THE PHILIPPINE SCOUTS, THE DECEDENTS BEING DOMICILED IN THE PHILIPPINES AT THE TIME OF THEIR DEATH, SHALL BE ADMINISTERED BY THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES OF THE PHILIPPINES, OR HIS DULY AUTHORIZED REPRESENTATIVES. SIMILAR PROVISIONS WERE CONTAINED IN THE PRIOR COMMONWEALTH ACTS 675 AND 684. UNDER THESE PROVISIONS, FOLLOWING THE LIBERATION OF THE PHILIPPINES, AND AFTER AN ADMINISTRATIVE DETERMINATION AS TO THE DATE OF DEATH OF THE MEMBER AND HIS PAY STATUS, THE ARREARS OF PAY DUE THE ESTATES OF DECEASED FILIPINOS WHO DIED IN AN ACTIVE DUTY STATUS DURING WORLD WAR II WHILE SERVING WITH THE ARMED FORCES OF THE UNITED STATES WAS PAID TO THE JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY, WHEN CLAIMED BY HIM, FOR DISTRIBUTION TO THE PERSONS ENTITLED TO RECEIVE SUCH AMOUNTS. PRESUMABLY, THE ARREARS OF PAY DUE YOUR SON'S ESTATE WAS SETTLED UNDER THESE PROVISIONS. BUT IN ANY EVENT YOUR CLAIM IS NOW BARRED BY THE 1940 ACT.

THIS OFFICE DOES NOT HAVE POWER OF DISPENSATION UNDER THE ACT OF OCTOBER 9, 1940. WE HAVE NO AUTHORITY TO WAIVE OR DISREGARD THE LAW IN ANY CASE. SINCE YOUR CLAIM WAS NOT FILED HERE WITHIN 10 YEARS AFTER IT FIRST ACCRUED, WE TRUST YOU WILL UNDERSTAND WE HAVE NO CHOICE BUT TO ADVISE YOU WE ARE PRECLUDED BY LAW FROM CONSIDERING IT. ..END :