B-152489, OCT. 11, 1963

B-152489, OCT. 11, 1963

TO MR. THEOPHILOUS DAVIS:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27, 1963, RELATIVE TO YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY FROM MAY 1945 TO DATE OF DISCHARGE IN JUNE 1946.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 19, 1963, AND ON JULY 18, 1963, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT WE WERE PRECLUDED FROM CONSIDERING YOUR CLAIM BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES AS FOLLOWS (QUOTING FROM 31 U.S.C. 71A):

"/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 CONSIDERATION.'

BY LETTER DATED AUGUST 14, 1963, YOU WERE AGAIN ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU CONTEND THAT THE DELAY IN PRESENTING YOUR CLAIM WAS DUE TO THE ,PRETERMISSION OF THE U.S. ARMY" AND THEREFORE THE BARRING ACT SHOULD NOT BE APPLIED IN YOUR CASE.

THE FILING OF A CLAIM WITH AN ADMINISTRATIVE OFFICE DOES NOT CONSTITUTE A FILING IN THIS OFFICE WITHIN THE TERMS OF THE ACT OF OCTOBER 9, 1940. SEE 32 COMP. GEN. 267, COPY HEREWITH. THE RECORD BEFORE US DOES NOT SHOW ANY NEGLIGENCE OR UNDUE DELAY ON THE PART OF THE ARMY IN HANDLING YOUR CLAIM. HOWEVER, EVEN IF IT SHOULD BE ESTABLISHED THAT YOU FILED A TIMELY CLAIM WITH THE UNITED STATES ARMY AND THAT IT FAILED TO FORWARD IT TO THIS OFFICE BEFORE THE EXPIRATION OF THE TEN YEAR PERIOD, THAT WOULD PROVIDE NO LEGAL BASIS FOR CONSIDERATION OF YOUR CLAIM BY THIS OFFICE. THE BAR OF THE ACT OF OCTOBER 9, 1940, QUOTED ABOVE, IS MANDATORY AND CANNOT BE WAIVED BY THIS OFFICE OR BY ANY OFFICER OF THE GOVERNMENT.

WE TRUST THAT YOU WILL UNDERSTAND THAT WE ARE PROHIBITED BY LAW FROM CONSIDERING YOUR CLAIM AND THAT THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER. ALSO, IT MAY BE STATED THAT THE VETERANS ADMINISTRATION HAS REPORTED THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE NET AMOUNT OF $385.50 ON ACCOUNT OF BENEFIT OVERPAYMENTS. IF ANY AMOUNT WERE OTHERWISE DUE YOU INCIDENT TO YOUR ARMY SERVICE IT WOULD BE SUBJECT TO SET OFF AGAINST YOUR INDEBTEDNESS.