B-141014, NOV. 19, 1959

B-141014, NOV. 19, 1959

TO MR. SAM BUSH:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER, WHICH WAS RECEIVED IN OUR OFFICE ON OCTOBER 5, 1959, CONCERNING YOUR CLAIM FOR PAY WHICH YOU BELIEVE IS DUE YOU INCIDENT TO YOUR ARMY SERVICE FROM JULY 30, 1918, TO JULY 18, 1919.

THE RECORDS SHOW THAT YOUR CLAIM, AS SET FORTH IN YOUR LETTER DATED MAY 20, 1958, ADDRESSED TO FINANCE OFFICE, U.S. ARMY, INDIANAPOLIS, INDIANA, WAS RECEIVED IN OUR OFFICE ON JULY 7, 1958, WHICH WAS PRACTICALLY 39 YEARS AFTER IT FIRST ACCRUED. THE CLAIM WAS, THEREFORE, PROMPTLY RETURNED TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH, AS CODIFIED IN 31 U.S.C. 71A, PROVIDES:

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"/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.'

YOUR LETTER DATED MAY 20, 1958, WAS AGAIN RECEIVED IN OUR OFFICE ON JULY 23, 1958, AND BY LETTER DATED AUGUST 12, 1958, OUR CLAIMS DIVISION AGAIN RETURNED THE LETTER TO YOU WITH ANOTHER COPY OF THE ACT OF OCTOBER 9, 1940, ADVISING YOU THAT YOUR CLAIM IS BARRED BY THE PROVISIONS OF THAT ACT AND THAT IT MAY NOT BE CONSIDERED BY OUR OFFICE. YOUR LETTER DATED JUNE 8, 1959, ADDRESSED TO THE VETERANS ADMINISTRATION WAS RECEIVED IN OUR OFFICE ON JULY 13, 1959, AND BY LETTER DATED JULY 28, 1959, OUR CLAIMS DIVISION AGAIN ADVISED YOU WHY CONSIDERATION OF YOUR CLAIM IS PRECLUDED AT THE PRESENT TIME.

YOU SAY THAT SINCE YOU DID NOT KNOW OF THE ACT OF OCTOBER 9, 1940, YOU BELIEVE THAT WE SHOULD NOW CONSIDER YOUR CLAIM.

THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE IS NOT A MERE STATUTE OF LIMITATION BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. YOU ARE ADVISED, THEREFORE, THAT EVEN THOUGH YOU DID NOT KNOW OF THE ACT OF OCTOBER 9, 1940, WE MAY MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE ACT NOR MAY WE GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. DION V. UNITED STATES, 137 C.CLS. 166.

SINCE UNDER THE LAW WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM, THER IS NO FURTHER ACTION THAT WE MAY TAKE IN CONNECTION THEREWITH.