B-167167, JUL. 14, 1969

B-167167, JUL. 14, 1969

MILITARY - MUSTERING-OUT PAY DECISION TO CLAIMANT HOLDING THAT CLAIM FOR MUSTERING-OUT PAY INCIDENT TO SERVICE IN ARMY IN WORLD WAR II IS BARRED UNDER ACT OF OCT. 9, 1940, 31 U.S.C. 71A.

TO MR. JOSE J. BORJA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 10, 1969, ADDRESSED TO THE CHIEF, CLAIMS DIVISION, SETTLEMENT OPERATIONS, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $3,600 INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY FORCES FAR EAST DURING WORLD WAR II. THAT CENTER FORWARDED THAT LETTER TO THIS OFFICE AND IT WAS RECEIVED ON MAY 2, 1969.

OUR FILE SHOWS THAT IN A LETTER DATED MAY 15, 1968, TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOU SAID THAT YOU WERE INDUCTED INTO THE UNITED STATES ARMY FORCES FAR EAST ON DECEMBER 12, 1941, AND IN REFERRING TO THE PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.), YOU CLAIMED THAT YOU WERE ENTITLED TO A MUSTERING-OUT PAYMENT OF $300 INCIDENT TO YOUR MILITARY SERVICE.

YOU ALSO SAID IN THAT LETTER THAT YOU WERE DISCHARGED FROM THE ARMED FORCES OF THE PHILIPPINES ON SEPTEMBER 23, 1953, AS A TECHNICAL SERGEANT. YOU INDICATED THAT YOUR CLAIM WAS BASED ON SERVICE IN THE PHILIPPINE SCOUTS UNDER AN ENLISTMENT PURSUANT TO SECTION 14 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 543, WHICH AUTHORIZED SUCH ENLISTMENTS FOR A PERIOD OF THREE YEARS UNLESS SOONER TERMINATED. THUS YOU APPARENTLY WERE DISCHARGED NOT LATER THAN 1949.

ON JUNE 7, 1968, THE FINANCE CENTER TRANSMITTED YOUR CLAIM TO OUR CLAIMS DIVISION FOR DISPOSITION AND IT WAS RECEIVED ON JUNE 13, 1968. SINCE ON THE LATTER DATE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE YOU WERE DISCHARGED FROM THE ARMED FORCES OF THE UNITED STATES (DATE OF ACCRUAL OF YOUR CLAIM), OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU ON JUNE 24, 1968, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

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 AUGUST 19, 1968, YOU CONTENDED THAT THE ABOVE ACT HAVING BEEN PASSED PRIOR TO WORLD WAR II IS APPLICABLE ONLY TO PERSONS WHO SERVED IN WORLD WAR I AND NOT TO THOSE WHO SERVED IN THE UNITED STATES ARMY FORCES FAR EAST DURING WORLD WAR II. YOU ALSO STATED THAT IT WAS NOT UNTIL 1968 THAT SUCH FORMER MEMBERS WERE ADVISED TO FILE THEIR CLAIMS FOR MUSTERING-OUT PAY.

IN A LETTER DATED NOVEMBER 20, 1968, OUR CLAIMS DIVISION EXPLAINED TO YOU THE EFFECT OF THE ACT OF OCTOBER 9, 1940, AND AGAIN ADVISED YOU THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THAT ACT BECAUSE IT WAS NOT TIMELY FILED. THAT DIVISION FURTHER ADVISED YOU THAT THE FACT THAT YOU WERE NOT ACQUAINTED WITH THE ACT CONSTITUTES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY CONSIDER YOUR CLAIM SINCE IT MAKES NO EXCEPTIONS WHICH WOULD PERMIT FAVORABLE ACTION ON CLAIMS OF INDIVIDUALS WHO BELATEDLY LEARN OF THEIR RIGHTS.

YOU SAY IN YOUR LETTER OF FEBRUARY 10, 1969, TO THE FINANCE CENTER, THAT YOU HAVE FILED YOUR CLAIM UNDER THE PROVISIONS OF "ACT NO. 263 - 88TH CONGRESS DATED JANUARY 9, 1963 AND APPROVED ON SEPTEMBER 30, 1965.' HAVE FOUND NO LAW APPROVED ON THE DATES MENTIONED WHICH HAS ANY BEARING ON YOUR CLAIM FOR MUSTERING-OUT PAY. ON JUNE 24, 1965, PUBLIC LAW 89-50, 79 STAT. 173, WAS ENACTED AS AN AMENDMENT TO CHAPTER 43 OF TITLE 38, U.S.C. IT PROVIDED FOR MUSTERING-OUT PAYMENTS TO THOSE PERSONS WHO SERVED IN THE ARMED FORCES OF THE UNITED STATES DURING THE KOREAN CONFLICT AND PERTAINED ONLY TO CERTAIN MEMBERS WHO WERE DISCHARGED OR RELIEVED FROM ACTIVE DUTY PRIOR TO JULY 16, 1952, IN ORDER TO BE APPOINTED A WARRANT OR COMMISSIONED OFFICER IN A REGULAR COMPONENT OF AN ARMED FORCE OF THE UNITED STATES. PAYMENT WAS AUTHORIZED ONLY IF APPLICATION WAS MADE BEFORE JANUARY 31, 1966. SINCE YOU WERE DISCHARGED FROM AN ARMED FORCE OF THE UNITED STATES PRIOR TO THE KOREAN CONFLICT, PUBLIC LAW 89-50 IS NOT FOR APPLICATION IN YOUR CASE.

THE PROVISION OF LAW WHICH GOVERNS THE DISPOSITION OF YOUR CLAIM FOR MUSTERING-OUT PAY IS THE ACT OF OCTOBER 9, 1940, MENTIONED ABOVE. THAT ACT SPECIFICALLY PRECLUDES THIS OFFICE OR ANY OTHER UNITED STATES OFFICE OR AGENCY FROM CONSIDERING SUCH CLAIMS AGAINST THE UNITED STATES IF THOSE CLAIMS ARE NOT RECEIVED HERE WITHIN THE PRESCRIBED 10-YEAR LIMITATION PERIOD AFTER THE CLAIM FIRST ACCRUED. YOUR CLAIM WAS RECEIVED IN THIS OFFICE MORE THAN 10 YEARS AFTER YOUR DISCHARGE FROM THE ARMED FORCES OF THE UNITED STATES AND, HENCE, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO ADVISE YOU THAT CONSIDERATION THEREOF WAS BARRED. ACCORDINGLY, THERE IS NO FURTHER ACTION WE MAY TAKE ON YOUR CLAIM.