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B-145631, APR. 27, 1961

B-145631 Apr 27, 1961
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TO MISS ROSALINA BANTAY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21. BARRING YOUR CLAIM FOR ANY ARREARS OF RETIRED PAY WHICH MIGHT HAVE BEEN DUE IN THE CASE OF YOUR LATE FATHER. WHO WAS RETIRED AS A PHILIPPINE SCOUT ON APRIL 30. YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 7. THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT WE WERE PRECLUDED FROM CONSIDERING YOUR CLAIM BY THE ACT OF OCTOBER 9. A COPY OF WHICH WAS SENT TO YOU AND WHICH PROVIDES. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'. IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIM FOR ANY ACCRUED RETIRED PAY WHICH MAY HAVE BEEN DUE YOUR LATE FATHER. IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT WHEN A PROVISO IS ATTACHED TO A GENERAL PROVISION IN A STATUTE.

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B-145631, APR. 27, 1961

TO MISS ROSALINA BANTAY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1960 (1961), ADDRESSED TO THE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE AND FORWARDED HERE FOR OUR CONSIDERATION, IN WHICH YOU REQUEST FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1178, 1181, BARRING YOUR CLAIM FOR ANY ARREARS OF RETIRED PAY WHICH MIGHT HAVE BEEN DUE IN THE CASE OF YOUR LATE FATHER, MARINO BANTAY, R- 321587, WHO WAS RETIRED AS A PHILIPPINE SCOUT ON APRIL 30, 1941, AND WHO DIED ON APRIL 8, 1942.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 7, 1959, AND ON DECEMBER 23, 1959, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT WE WERE PRECLUDED FROM CONSIDERING YOUR CLAIM BY THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS SENT TO YOU AND WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/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 71 AND 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.'

IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIM FOR ANY ACCRUED RETIRED PAY WHICH MAY HAVE BEEN DUE YOUR LATE FATHER, APPARENTLY ON THE BASIS THAT WORLD WAR II TOLLED THE TEN-YEAR STATUTE OF LIMITATIONS IN YOUR CASE. YOU CONTEND THAT BECAUSE OF THE HOSTILITIES IN THE PHILIPPINES IN WORLD WAR II THE ACT OF OCTOBER 9, 1940, SHOULD NOT BE APPLICABLE TO YOUR CLAIM. YOU CITE CERTAIN MISSISSIPPI CASES IN SUPPORT OF THIS CONTENTION.

SECTION 3 OF JOINT RESOLUTION DATED JULY 25, 1947, 61 STAT. 451, 454, PROVIDED THAT IN THE INTERPRETATION OF SECTION 1 OF THE ACT OF OCTOBER 9, 1940, THE DATE JULY 25, 1947, SHOULD BE DEEMED TO BE THE DATE OF TERMINATION OF ANY STATE OF WAR THERETOFORE DECLARED BY CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941.

IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT WHEN A PROVISO IS ATTACHED TO A GENERAL PROVISION IN A STATUTE, THAT PROVISO IS TO BE CONSTRUED STRICTLY AND AS TAKING NO CASE OUT OF THE GENERAL PROVISION WHICH DOES NOT FALL SQUARELY WITHIN THE TERMS OF THE PROVISO. UNITED STATES V. DICKSON, 15 PET. 141, 163; RYAN V. CARTER, 93 U.S. 78, 83; UNITED STATES V. EWING, 140 U.S. 142, 148; AND SCHLEMMER V. BUFFALO, ROCHESTER AND PITTSBURG RAILWAY COMPANY, 205 U.S. 1, 10. THE PROVISO IN SECTION 1 OF THE ACT OF OCTOBER 9, 1940, RELATES, BY ITS OWN TERMS, SOLELY TO "A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES," AND SPECIFIES THAT THE GENERAL PROVISION OF THE STATUTE MAY BE MODIFIED WHEN THE CLAIM OF A PERSON SO SERVING ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL. IN THOSE INSTANCES SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

ANY CLAIM YOU MIGHT HAVE HAD INCIDENT TO YOUR LATE FATHER'S DEATH ON APRIL 8, 1942, ACCRUED ON THAT DATE. THE PROVISO IN SECTION 1 OF THE ACT OF OCTOBER 9, 1940, RECOGNIZES THAT A PERSON SERVING IN THE MILITARY SERVICE IN TIME OF WAR MAY ENCOUNTER DIFFICULTY IN PRESENTING HIS CLAIM FOR CONSIDERATION. HOWEVER, SINCE IT DOES NOT APPEAR THAT YOU HAD ANY MILITARY SERVICE SUBSEQUENT TO YOUR FATHER'S DEATH, THE PROVISO IN SECTION 1 OF THE ACT OF OCTOBER 9, 1940, WOULD NOT APPLY TO YOU. BUT EVEN IF SUCH PROVISO WERE APPLICABLE IN YOUR CASE, THE 5 YEAR PERIOD FROM JULY 25, 1947, EXPIRED ON JULY 24, 1952, AND HENCE WOULD AFFORD NO BASIS FOR CONSIDERING YOUR CLAIM. THE COURT DECISIONS WHICH YOU CITE DID NOT RELATE TO THE ACT OF OCTOBER 9, 1940, AND ARE NOT APPLICABLE TO CLAIMS BARRED FROM CONSIDERATION BY THAT ACT.

THE FACT THAT YOU MAY HAVE FILED CLAIM WITH ANOTHER GOVERNMENT AGENCY WITHIN THE TEN-YEAR PERIOD WOULD NOT SATISFY THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940. ANY RIGHT YOU MAY HAVE HAD TO THE ITEMS INVOLVED IN YOUR CLAIM EXPIRED TEN YEARS AFTER YOUR FATHER'S DEATH--- APRIL 7, 1952--- AND THERE IS NO RECORD OF ANY CLAIM FROM YOU HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE.

THE LIMITATION, PRESCRIBED BY THE STATUTE, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE IS NOT A MERE STATUTE OF LIMITATIONS 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. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267.

ACCORDINGLY, YOUR CLAIM NOT HAVING BEEN RECEIVED HERE WITHIN TEN FULL YEARS AFTER THE DATE IT ACCRUED, WE TRUST THAT YOU WILL UNDERSTAND THAT IT IS PRECLUDED FROM OUR CONSIDERATION BY LAW AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.

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