B-152845, MAY 6, 1964

B-152845, MAY 6, 1964

TO MR. ALBERT C. BELHOMME:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1963, AND PRIOR CORRESPONDENCE, CONCERNING YOUR CLAIM FOR PAY AND ALLOWANCES FROM NOVEMBER 25, 1950, THE DATE OF YOUR CAPTURE, TO THE DATE OF YOUR DISCHARGE FROM THE UNITED STATES ARMY IN JANUARY 1954. IT APPEARS THAT YOUR CLAIM, DATED JULY 15, 1963, WAS RECEIVED BY THE DEPARTMENT OF THE ARMY ON AUGUST 12, 1963; THAT IT WAS FORWARDED TO OUR OFFICE (THE GENERAL ACCOUNTING OFFICE) ON SEPTEMBER 10, 1963; AND THAT IT WAS RECEIVED IN OUR CLAIMS DIVISION ON SEPTEMBER 11, 1963.

WE ADVISED YOU IN OUR LETTER OF DECEMBER 17, 1963, B-152845, THAT WE WERE RETURNING YOUR CLAIM TO THE DEPARTMENT OF THE ARMY FOR CONSIDERATION UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APPENDIX, SECTIONS 1001-1015. IN A REPORT DATED APRIL 8, 1964, FROM THE DEPARTMENT OF THE ARMY IT IS STATED THAT---

"OFFICIAL RECORDS OF THE DEPARTMENT OF THE ARMY SHOW THAT, PURSUANT TO AUTHORITY DELEGATED BY THE SECRETARY OF THE ARMY, ALL ESSENTIAL DETERMINATIONS UNDER THE MISSING PERSONS ACT AS TO THE STATUS OF ALBERT C. BELHOMME WERE MADE PRIOR TO AUGUST 5, 1953, BEGINNING WITH A DETERMINATION THAT HE WAS MISSING IN ACTION IN KOREA ON NOVEMBER 25, 1950 * * *. A CLAIM ACCRUED TO HIM AT THAT TIME. HOWEVER, ON AUGUST 5, 1953, BELHOMME BECAME A VOLUNTARY NON-REPATRIATE AND UNDER THE PRECEDENTS ESTABLISHED IN BELL V. U.S., 366 U.S. 393 (1961), COURT OF CLAIMS COMMISSIONER'S REPORT (MAY 31, 1962) AND ORDER (JULY 20, 1962), BELL V. U.S., CASE NO. 547-56, BELHOMME, LIKE THE OTHER VOLUNTARY NON REPATRIATES, WAS NOT ENTITLED TO PAY AND ALLOWANCES ON AND AFTER THAT DATE.'

THERE WAS ENCLOSED WITH THAT REPORT A COPY OF A MEMORANDUM CONTAINING A "REVIEW AND DETERMINATION OF STATUS UNDER THE MISSING PERSONS ACT" IN YOUR CASE, DATED NOVEMBER 26, 1951. IT WAS THERE SET FORTH THAT YOU WERE REPORTED MISSING IN ACTION IN KOREA ON NOVEMBER 25, 1950, BY CASUALTY MESSAGE NO. 8, DATED JANUARY 2, 1951; THAT YOU BECAME MISSING IN ACTION WHILE PERFORMING YOUR DUTY AS FORWARD OBSERVER AT AN OUTPOST NORTH OF THE CHONGCHON RIVER IN NORTH KOREA, WHEN YOUR POSITION WAS OVERRUN BY OPPOSING FORCES; AND THAT UNOFFICIAL INFORMATION RECEIVED INDICATED THAT YOU WERE IN THE HANDS OF THE OPPOSING FORCES. IT WAS ALSO THERE SET FORTH THAT, ON THE BASIS OF SUCH INFORMATION, A DETERMINATION, AS OF NOVEMBER 26, 1951, WAS MADE UNDER THE PROVISIONS OF THE MISSING PERSONS ACT DIRECTING THAT YOU BE CONTINUED ON THE RECORDS OF THE DEPARTMENT OF THE ARMY IN A MISSING -IN ACTION STATUS.

THE MISSING PERSONS ACT VESTS IN THE HEAD OF THE DEPARTMENT CONCERNED BROAD AUTHORITY TO MAKE DETERMINATIONS, INCLUDING (50 U.S.C. APP. 1009) THE ENTITLEMENT OF ANY PERSON WITHIN THE SCOPE OF THE ACT TO PAY AND ALLOWANCES AND ALL SUCH DETERMINATIONS ARE MADE CONCLUSIVE BY EXPRESS PROVISION OF LAW. HENCE, IN THE ABSENCE OF AN APPROPRIATE DETERMINATION OF ENTITLEMENT, NO AMOUNT MAY BE ALLOWED FOR ANY PERIOD YOU WERE IN A STATUS COVERED BY THE MISSING PERSONS ACT.

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, PROVIDES

"THAT 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 SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), 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 VIEW OF SUCH STATUTORY PROVISIONS, ANY CLAIM FOR PAY AND ALLOWANCES FOR A PERIOD PRECEDING THE DATE ON WHICH YOU WERE DETERMINED TO BE MISSING IS BARRED. ALSO, SINCE YOUR CLAIM WAS NOT RECEIVED IN THE DEPARTMENT OF THE ARMY WITHIN 10 FULL YEARS AFTER AUGUST 5, 1953, THE DATE ON WHICH YOUR RIGHT TO PAY AND ALLOWANCES CEASED, IT HAS BEEN CONCLUDED BY THE DEPARTMENT OF THE ARMY THAT IT IS UNNECESSARY AND INAPPROPRIATE FOR THE SECRETARY OF THE ARMY TO MAKE ANY DETERMINATION AT THE PRESENT TIME WITH RESPECT TO YOUR ENTITLEMENT TO PAY AND ALLOWANCES FOR PERIODS PRIOR TO AUGUST 5, 1953. IN VIEW OF SUCH CONCLUSION, WE FIND NO BASIS FOR ALLOWANCE BY THIS OFFICE OF ANY PORTION OF YOUR CLAIM.