B-162815, JAN. 18, 1968

B-162815, JAN. 18, 1968

ARMED SERVICES - MUSTERING-OUT-PAY - PHILIPPINE SCOUT DECISION CONCERNING CLAIM FOR MUSTERING-OUT PAY INCIDENT TO SERVICE AS AN ENLISTED MEMBER OF PHILIPPINE SCOUTS. SINCE MORE THAN 10 YEARS ELAPSED BETWEEN DATE OF DISCHARGE FROM PHILIPPINE SCOUTS AND DATE CLAIM INCIDENT TO SERVICE WAS RECEIVED IN GAO, THE CLAIM IS BARRED UNDER THE ACT OF OCT. 9, 1940.

TO MR. IGNACIO A. PARINGIT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1967, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR SERVICES AS AN ENLISTED MEMBER OF THE PHILIPPINE SCOUTS.

OUR RECORDS SHOW THAT IN A LETTER DATED AUGUST 4, 1966, ADDRESSED TO THE CHIEF, CLAIMS DIVISION, SETTLEMENT OPERATIONS, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOU STATED THAT UNDER THE PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, CH. 9, 58 STAT. 8, AND PARAGRAPH 311 (313 ET SEQ.) OF WAR DEPARTMENT TECHNICAL MANUAL 14-502, DATED AUGUST 1, 1946, FORMER MEMBERS OF THE ARMED FORCES OF THE UNITED STATES UNDER CERTAIN CONDITIONS ARE ENTITLED TO $3,600 ($300) AS MUSTERING-OUT PAY AND, THEREFORE, YOU PRESENTED CLAIM FOR SUCH PAY BY REASON OF YOUR SERVICE IN THE PHILIPPINE SCOUTS UNDER AN ENLISTMENT PURSUANT TO SECTION 14 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 543. THE LATTER PROVISION OF LAW AUTHORIZED THE SECRETARY OF WAR, WITH THE APPROVAL OF THE PHILIPPINE GOVERNMENT, TO ENLIST 50,000 MEN IN THE PHILIPPINE SCOUTS FOR SERVICE IN THE PHILIPPINE ISLANDS AND ELSEWHERE IN THE FAR EAST.

YOUR LETTER WAS FORWARDED TO OUR CLAIMS DIVISION FOR CONSIDERATION AND IT WAS RECEIVED HERE ON SEPTEMBER 19, 1966. SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE, SEPTEMBER 21, 1949 (DATE OF ACCRUAL OF YOUR CLAIM), AND THE DATE IT WAS RECEIVED HERE, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AND IN AN ACCOMPANYING LETTER DATED OCTOBER 14, 1966, ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION. THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 10 U.S.C. 71A, PROVIDES 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.'

ON FEBRUARY 21, 1967, YOU ADDRESSED ANOTHER LETTER TO THE ABOVE FINANCE CENTER, THE CONTENT THEREOF BEING ALMOST IDENTICAL TO THAT IN YOUR LETTER OF AUGUST 4, 1966. IN RESPONSE, OUR CLAIMS DIVISION ADVISED YOU ON MAY 11, 1967, OF THE PRIOR DISPOSITION OF YOUR CLAIM AND THE EFFECT OF THE 1940 LAW. HOWEVER, IN A LETTER DATED JULY 1, 1967, TO OUR CLAIMS DIVISION, YOU REQUESTED A COPY OF THE 1940 LAW AND STATED THAT NEITHER THE PHILIPPINE NOR THE UNITED STATES GOVERNMENT EVER NOTIFIED YOU CONCERNING THE PROVISIONS OF THAT LAW.

IN REPLYING TO THAT LETTER, OUR CLAIMS DIVISION ADVISED YOU ON JULY 28, 1967, AMONG OTHER THINGS, THAT THE FACT THAT YOU ARE NOT ACQUAINTED WITH THE SUBJECT LAW CONSTITUTES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY GIVE CONSIDERATION TO YOUR CLAIM AND THAT IT IS A WELL ESTABLISHED RULE THAT EVERYONE IS CHARGEABLE WITH NOTICE OF PUBLIC LAWS AND THE ENACTMENT OF AN ACT CONSTITUTES LEGAL PUBLIC NOTICE OF ITS CONTENTS. YOU WERE FURTHER ADVISED THAT SINCE THE 1940 LAW CONTAINS NO SPECIFIC PROVISION REQUIRING NOTICE TO AN INDIVIDUAL, NO AGENCY OF THE GOVERNMENT IS REQUIRED TO INFORM HIM OF ANY RIGHTS HE MAY HAVE THEREUNDER. ALSO, ANOTHER COPY OF THE 1940 LAW WAS FORWARDED TO YOU.

IN YOUR LETTER OF SEPTEMBER 28, 1967, YOU MERELY SAY YOU REITERATE YOUR LETTER OF JULY 1, 1967.

IRRESPECTIVE OF WHETHER OR NOT YOU RECEIVED A MUSTERING-OUT PAYMENT OF 300 PHILIPPINE PESOS AFTER YOUR DISCHARGE FROM THE PHILIPPINE SCOUTS, THE FACT REMAINS THAT YOU DID NOT FILE CLAIM FOR THE MUSTERING OUT PAY UNTIL AFTER THE LAPSE OF A PERIOD OF ALMOST 17 YEARS AFTER THE DATE OF SUCH DISCHARGE. HENCE, IN SUCH INSTANCE THERE IS FOR APPLICATION THE ABOVE- MENTIONED ACT OF OCTOBER 9, 1940. THAT ACT SPECIFICALLY PRECLUDES THIS OFFICE FROM CONSIDERING COGNIZABLE CLAIMS AGAINST THE UNITED STATES GOVERNMENT IF NOT RECEIVED HERE WITHIN THE PRESCRIBED 10-YEAR LIMITATION PERIOD AFTER THE CLAIM FIRST ACCRUED.

ALL PERSONS ARE CHARGEABLE WITH KNOWLEDGE OF THIS LAW AND OTHER PUBLIC LAWS OF THE UNITED STATES REGARDLESS OF THEIR RESIDENCE OR CITIZENSHIP. WHILE THE MILITARY SERVICES MAY ADVISE MEMBERS OF THEIR RIGHTS, ENTITLEMENTS AND BENEFITS UNDER THE LAWS IN EFFECT AT THE TIME OF THEIR SEPARATION FROM THE SERVICES, THERE IS NO OBLIGATION TO FURNISH SUCH MEMBERS COPIES OF THE ACT OF OCTOBER 9, 1940, OR OTHER LAWS. THE FACT THAT YOU WERE UNAWARE OF THAT LAW PROVIDES NO BASIS FOR CONSIDERING YOUR CLAIM UPON ITS MERITS.

IN VIEW OF THE CLEAR AND UNAMBIGUOUS PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AND INASMUCH AS YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE WITHIN 10 YEARS AFTER THE DATE OF ITS ACCRUAL, WE MUST ADVISE YOU THAT WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM AND, ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN THEREON.