B-165756, FEB. 4, 1969

B-165756, FEB. 4, 1969

TO MR. DWIGHT C. GARREN, SR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 19, 1968, CONCERNING YOUR CLAIM FOR THE PROCEEDS OF CHECK NO. 262,228, DATED OCTOBER 1, 1952, SYMBOL NO. 215-142, IN THE AMOUNT OF $300, DRAWN TO YOUR ORDER AND REPRESENTING MUSTERING-OUT PAY.

IT APPEARS FROM THE RECORD BEFORE US THAT SOMETIME IN 1967 YOU FILED A CLAIM FOR MUSTERING-OUT PAY WITH THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, AND IN REPLY TO YOUR CLAIM THAT OFFICE FURNISHED YOU WITH A DESCRIPTION OF THE ABOVE MENTIONED CHECK SHOWING THAT A CHECK FOR MUSTERING-OUT PAY IN THE AMOUNT OF $300 DATED OCTOBER 1, 1952, WAS DRAWN IN YOUR FAVOR AND MAILED TO "DWIGHT C. GARREN, 1400 S.3D STREET, PARIS, ARKANSAS.' SEE FC USA FORM 4-208, COPY ENCLOSED. THEREAFTER, IN RESPONSE TO YOUR REQUEST FOR A PHOTOCOPY OF THE ABOVE CHECK, THE SPECIAL ASSISTANT TREASURER, TREASURY DEPARTMENT, IN LETTER DATED MARCH 4, 1968, ADVISED YOU THAT THE RECORDS OF THAT OFFICE INDICATE THAT THE CHECK IN QUESTION WAS PAID AND SUBSEQUENTLY DESTROYED PURSUANT TO STATUTORY AUTHORITY. INDICATED IN LETTER OF MARCH 4, 1968, PAYMENT OF YOUR CLAIM WAS DENIED BECAUSE OF THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 22, 1926, AS AMENDED, 31 U.S.C. 122, WHICH BARS CLAIMS ON ACCOUNT OF GOVERNMENT CHECKS WHEN SUCH CLAIMS ARE NOT PRESENTED HERE (GENERAL ACCOUNTING OFFICE) OR TO THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK.

SUBSEQUENTLY, OUR CLAIMS DIVISION CONSIDERED YOUR CLAIM AND BY LETTER DATED NOVEMBER 13, 1968, ADVISED YOU THAT NOTWITHSTANDING THE PROVISIONS OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, 50 U.S.C. APP. 525, WHICH TOLLS THE RUNNING OF BARRING ACTS, SUCH AS 31 U.S.C. 122, FOR THE PERIOD OF A CLAIMANT'S MILITARY SERVICE, YOUR DELAY IN FILING A CLAIM DEPRIVED THE GOVERNMENT OF ANY RIGHT TO RECOURSE AGAINST THE ENDORSERS OF THE CHECK UNDER THE ACT OF MARCH 6, 1946, CH. 48, 60 STAT. 31, AS AMENDED, 31 U.S.C. 129.

YOU STATE THAT WHEN YOU RETIRED FROM THE ARMY ON JANUARY 31, 1967, YOU IMMEDIATELY APPLIED FOR MUSTERING-OUT PAY. FOR THIS REASON YOU SAY THERE WAS NO DELAY IN FILING YOUR CLAIM.

AS INDICATED ABOVE, THE DEPARTMENT OF THE ARMY RECORDS SHOW THAT A CHECK DATED OCTOBER 1, 1952, IN THE AMOUNT OF $300 IN YOUR FAVOR AND REPRESENTING MUSTERING-OUT PAY WAS MAILED TO YOU AT "1400 S. 3D STREET, PARIS, ARKANSAS.' WHILE YOU MAY NOT HAVE BEEN ACTUALLY LIVING AT THAT ADDRESS IN OCTOBER 1952, BECAUSE, AS YOU ALLEGED, YOU WERE LIVING AT THAT TIME AT FORT SMITH, ARKANSAS -- WHICH YOU SAY IS 42 MILES FROM PARIS, ARKANSAS -- INCIDENT TO YOUR ACTIVE DUTY AT FORT CHAFFEE, ARKANSAS, PRESUMABLY PARIS, ARKANSAS, WAS THE MAILING ADDRESS YOU FURNISHED THE DEPARTMENT OF THE ARMY WHEN YOU MADE APPLICATION FOR MUSTERING-OUT PAY. IN THIS CONNECTION, OUR RECORDS SHOW THAT ON JULY 16, 1956, YOU FILED A CLAIM FOR SHIPMENT OF YOUR HOUSEHOLD GOODS AND YOU CERTIFIED THAT CERTAIN EFFECTS WERE AT "1406" S. 3D STREET, PARIS, ARKANSAS. ALSO, YOUR LEAVE ADDRESS ON JUNE 30, 1964, IS SHOWN AS 1304 SOUTH 3D STREET, IN PARIS. SINCE YOUR CURRENT ADDRESS IS "1414" S. 3D STREET, IN THAT CITY, IT SEEMS LIKELY THAT THE CHECK FOR MUSTERING-OUT PAY MAILED TO YOU IN OCTOBER 1952 AT "1400" S. 3D STREET, WHERE YOU PRESUMABLY WERE WELL KNOWN IN THE IMMEDIATE VICINITY, WOULD HAVE BEEN DELIVERED TO YOU IN DUE COURSE.

THE RECORDS OF THE TREASURER OF THE UNITED STATES SHOW, AS INDICATED ABOVE, THAT THE CHECK IN QUESTION ACTUALLY WAS ISSUED, PAID AND DESTROYED PURSUANT TO LAW. CONTRARY TO YOUR APPARENT BELIEF, THE CHECK WAS NOT DESTROYED BY AN EMPLOYEE OF OUR CLAIMS DIVISION. RATHER, IN ACCORDANCE WITH PROCEDURE ESTABLISHED PURSUANT TO THE LAW RELATING TO THE DESTRUCTION OF OLD RECORDS (44 U.S.C. 366-376, 378-380), PAID CHECKS ARE REQUIRED TO BE RETAINED ONLY FOR 7 YEARS AFTER DATE OF ISSUE AND ARE THEN DESTROYED BY APPROPRIATE PERSONNEL IN THE FEDERAL RECORDS CENTER. SINCE THE CHECK WAS ISSUED (OCTOBER 1952) MORE THAN 7 YEARS AGO, IT WAS DESTROYED PURSUANT TO LAW.

THE MERE SUSPENSION OR TOLLING OF A STATUTE OF LIMITATION DOES NOT PERFECT AN OTHERWISE UNSUPPORTED CLAIM. IN VIEW OF THE LAPSE OF TIME, THE POSSIBILITY EXISTS THAT YOU MAY HAVE NEGOTIATED THE CHECK AND LATER FORGOTTEN ABOUT IT. OR, THE CHECK MAY HAVE BEEN ENDORSED BY A MEMBER OF YOUR FAMILY, PERHAPS WITH YOUR KNOWLEDGE OR CONSENT.

IT MAY BE POINTED OUT ALSO THAT, EVEN IF THE CHECK WAS NEVER RECEIVED BY YOU AND WAS ERRONEOUSLY NEGOTIATED, YOUR FAILURE TO MAKE A TIMELY CLAIM FOR NONRECEIPT HAS NOW PLACED THE GOVERNMENT IN A POSITION WHEREBY IT CANNOT, IN ANY EVENT, HAVE RECOURSE AGAINST THE ENDORSERS. SEE 31 U.S.C. 129, PROHIBITING ANY ATTEMPT BY THE UNITED STATES TO ENFORCE LIABILITY OF AN ENDORSER ON A GOVERNMENT CHECK UNLESS ACTION TO ENFORCE THE SAME OR NOTICE OF LIABILITY IS GIVEN THE ENDORSER WITHIN SIX YEARS OF THE PRESENTATION OF THE CHECK TO THE TREASURER OF THE UNITED STATES FOR PAYMENT. SEE IN THIS CONNECTION UNITED STATES V UNION PLANTERS NATIONAL BANK AND TRUST COMPANY, 175 F.2D 684.

MOREOVER, THE FACT THAT YOU FILED A CLAIM FOR MUSTERING-OUT PAY AT THE TIME OF YOUR RETIREMENT FROM THE ARMY IN JANUARY 1967, AFFORDS NO BASIS FOR ALLOWING SUCH A CLAIM, SINCE NO RIGHT TO SUCH PAY ACCRUED TO YOU AT THAT TIME. EXCEPT FOR A MEMBER RETIRED FOR PHYSICAL DISABILITY, SECTION 1011 (B) (2) OF TITLE 38, U.S.C. (1952 ED.) PRECLUDED PAYMENT OF MUSTERING-OUT PAY TO A MEMBER WHO WAS PLACED ON THE RETIRED LIST WITH RETIRED PAY.

IN THE CIRCUMSTANCES SHOWN, WE FIND NO PROPER BASIS FOR THE PAYMENT OF YOUR CLAIM AND THE ACTION TAKEN IN DISALLOWING SUCH CLAIM IS SUSTAINED.