B-157388, SEP. 22, 1965

B-157388, SEP. 22, 1965

TO MR. JOSE ELGINCOLIN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1965, ACKNOWLEDGING RECEIPT OF LETTER OF JANUARY 29, 1965, FROM OUR CLAIMS DIVISION AND IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR "UNPAID SALARY" AND "BONUS" AS A MEMBER OF THE UNITED STATES ARMY DURING THE YEARS 1917 TO 1920.

YOU INITIALLY PRESENTED CLAIM FOR THE "UNPAID SALARY" AND "BONUS" IN A LETTER DATED AUGUST 5, 1964, ADDRESSED TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON, D.C. SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE YOUR CLAIM FIRST ACCRUED (1920) AND THE DATE THAT LETTER WAS RECEIVED IN THIS OFFICE (OCTOBER 7, 1964) OUR CLAIMS DIVISION RETURNED IT TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, AND ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION. THE ACT OF OCTOBER 9, 1940, PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM IS FILED IN THAT OFFICE WITHIN 10 YEARS AFTER THE DATE IT ACCRUED AND FURTHER PROVIDES FOR THE RETURN OF ANY CLAIM SO BARRED FROM CONSIDERATION. BY LETTER DATED JANUARY 18, 1965, YOU REQUESTED THAT THE CLAIMS DIVISION RECONSIDER YOUR CLAIM, AND IN SUPPORT OF THAT REQUEST YOU STATED THAT YOU WERE NOT AWARE OF THE LAW AND PROCEDURES AND THAT AFTER WORLD WAR II YOU HAD HESITATED TO FILE A CLAIM BECAUSE OF A CERTAIN EXPRESSED FEAR. IN RESPONSE, THE CLAIMS DIVISION ADVISED YOU, AMONG OTHER THINGS, THAT THE FACT THAT YOU WERE NOT AWARE OF THE ACT OF OCTOBER 9, 1940, CONSTITUTES NO LEGAL BASIS FOR CONSIDERATION OF YOUR CLAIM.

IN YOUR LETTER OF JULY 21, 1965, YOU SAY THAT YOU SERVED IN THE UNITED STATES ARMY DURING THE YEARS 1917 TO 1920 AND THAT PRIOR TO DETACHMENT THEREFROM YOU AND OTHER FILIPINOS WHO SERVED WITH YOU WERE INFORMED BY AN AMERICAN OFFICER THAT THE "MONTHLY SALARY" WOULD BE PAID BEFORE LONG AND IF NOT PAID THEN A "COMPENSATORY BONUS" FOR THE SERVICES PERFORMED WOULD BE PAID WHEN YOU REACHED 60 YEARS OF AGE. YOU ALSO SAY, AMONG OTHER THINGS, THAT YOUR MILITARY RECORDS WERE LOST DURING WORLD WAR II WHEN THE OLONGAPO NAVAL STATION WAS BOMBED AND YOUR HOME BURNED TO ASHES AND THAT YOU WERE NOT 60 YEARS OLD AT THE TIME OF THE PASSAGE OF THE ACT OF OCTOBER 9, 1940.

OUR FILE SHOWS THAT DURING A GREATER PART OF THE PERIOD OF YOUR CLAIM, THAT IS, FROM JANUARY 1, 1918, TO DECEMBER 31, 1920, YOU WERE EMPLOYED AS A CIVILIAN EMPLOYEE (PAY NO. 38112) BY THE NAVY DEPARTMENT, NAVAL STATION, OLONGAPO, PHILIPPINES, AND THAT YOU WERE PAID IN FULL FOR YOUR SERVICES AS A MACHINIST DURING THIS ENTIRE PERIOD. IT IS ALSO SHOWN THAT YOUR EMPLOYMENT WITH THE NAVY DEPARTMENT CONTINUED UNTIL OCTOBER 26, 1941, AND THAT AFTER THE REESTABLISHMENT OF THE NAVAL STATION, OLONGAPO, IN 1945 AND YOUR REEMPLOYMENT THEREIN, YOU SERVED UNTIL MAY 31, 1949, BECOMING ELIGIBLE FOR A CIVIL SERVICE RETIREMENT ANNUITY COMMENCING JUNE 1, 1949.

IN VIEW OF THE FOREGOING, YOUR STATEMENT THAT YOU SERVED IN THE UNITED STATES ARMY DURING THE YEARS 1917 TO 1920 IS NOT UNDERSTOOD. HOWEVER, EVEN IF YOU DID IN FACT SERVE IN THE UNITED STATES ARMY DURING ANY PART OF THOSE YEARS, YOUR CLAIM FOR "UNPAID SALARY" AND "BONUS" INCIDENT TO SUCH SERVICE CANNOT BE CONSIDERED BY THIS OFFICE BECAUSE OF THE PROHIBITORY PROVISIONS OF THE ACT OF OCTOBER 9, 1940. SUCH PROVISIONS GOVERN THE DISPOSITION OF YOUR CLAIM BECAUSE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE PRESCRIBED 10 YEAR PERIOD AFTER IT FIRST ACCRUED. THE FACT THAT YOU MAY NOT HAVE BEEN 60 YEARS OLD AT THE TIME OF THE PASSAGE OF THE ACT IS IMMATERIAL- - THE ACT BEING FOR APPLICATION IN ALL CASES WHERE COGNIZABLE CLAIMS AGAINST THE UNITED STATES ARE NOT TIMELY RECEIVED HERE IRRESPECTIVE OF THE AGE, PHYSICAL OR MENTAL CONDITION, OR PLACE OF RESIDENCE OF THE CLAIMANT. FURTHERMORE, THAT ACT DOES NOT PERMIT ANY EXCEPTION IN THE APPLICATION OF ITS PROVISIONS, NOR DOES IT VEST IN THIS OFFICE AUTHORITY TO WAIVE ITS PROVISIONS; HENCE, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT YOUR CLAIM IS BARRED FROM CONSIDERATION BY LAW. ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN THEREON.