B-154074, AUG. 7, 1964

B-154074, AUG. 7, 1964

TO MRS. ROSE E. LAHANIER:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1964, AND LETTER OF JULY 11, 1964, WITH ENCLOSURE, RELATIVE TO YOUR CLAIM FOR THE ARREARS OF PAY BELIEVED TO BE DUE INCIDENT TO THE SERVICE OF YOUR SON, JOHN A. LAMAR, SECOND LIEUTENANT, AIR CORPS, AT DATE OF RECEIPT OF EVIDENCE OF DEATH, JULY 18, 1945.

YOU WERE ADVISED BY OUR CLAIMS DIVISION IN LETTER OF MARCH 4, 1963, OF THE POSSIBILITY OF AN ERROR IN ITS PRIOR ACTION IN LETTER OF OCTOBER 25, 1962, OF BARRING YOUR CLAIM PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, SINCE THERE IS INDICATION THAT YOU MAY HAVE PREVIOUSLY FILED A CLAIM WITH OUR OFFICE. YOU WERE ALSO ADVISED, HOWEVER, THAT THERE IS NO WAY OF DEFINITELY ESTABLISHING THIS FACT SINCE MOST OF THE RECORDS IN THE CASE HAVE BEEN DESTROYED IN ACCORDANCE WITH THE LAW AUTHORIZING THE DESTRUCTION OF OLD RECORDS. (CHAPTER 10 OF TITLE 44 OF THE UNITED STATES CODE.) THE AVAILABLE RECORDS SHOW IN THE CASE OF YOUR SON THAT THE AMOUNT OF $1,000 WAS ALLOWED ON OCTOBER 17, 1945, AND THE AMOUNT OF $393.06 WAS ALLOWED ON FEBRUARY 4, 1948, BUT SUCH RECORDS DO NOT SHOW THE NAME OF THE PERSON, OR PERSONS, TO WHOM THESE AMOUNTS WERE ALLOWED. ALSO, THE AMOUNT OF $2,559.60 WAS ALLOWED ON OCTOBER 1, 1947, TO NORMA ANNE GENEVIEVE LAMAR, AS EXECUTRIX OF THE WILL OF JOHN ATWOOD LAMAR, DECEASED, FOR PAY DUE DECEDENT AT DATE OF RECEIPT OF EVIDENCE OF DEATH, JULY 18, 1945.

PRIOR TO JANUARY 1, 1956, THE SETTLEMENT OF ACCOUNTS OF DECEASED OFFICERS AND ENLISTED MEN OF THE ARMY WAS GOVERNED BY THE PROVISIONS OF THE ACT OF JUNE 30, 1906, AS AMENDED, 10 U.S.C. 868. THE AIR CORPS WAS A PART OF THE ARMY AT THE TIME OF YOUR SON'S DEATH. SUCH ACT, AS AMENDED BY THE ACT OF DECEMBER 7, 1944, 58 STAT. 795, PROVIDED THAT WHERE THE AMOUNT DUE THE DECEDENT'S ESTATE IS $1,000 OR MORE AND NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE THE ACCOUNTING OFFICERS MAY ALLOW $1,000 OF THE AMOUNT DUE TO THE ESTATE TO THE WIDOW OR LEGAL HEIRS IN THE ORDER OF PRECEDENCE PRESCRIBED. THE INDICATED $1,000 PAYMENT APPARENTLY WAS ALLOWED ON OCTOBER 17, 1945, UNDER THAT AUTHORITY, AND THE BALANCE REMAINING DUE IN YOUR SON'S ACCOUNT, $2,559.60, SUBSEQUENTLY WAS CLAIMED AND ALLOWED ON OCTOBER 1, 1947, TO A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE.

GENERALLY, IT IS THE PRACTICE TO DISPOSE OF ALL FILES OF SETTLED CLAIMS AGAINST THE UNITED STATES IN WHICH THERE HAS BEEN NO ACTIVITY FOR A PERIOD OF 12 YEARS. IT MUST BE ASSUMED IN SUCH CASES THAT PRIOR TO ITS DESTRUCTION, THE CLAIM WAS ADJUDICATED AND ANY AMOUNT FOUND DUE ON THE CLAIM WAS ALLOWED OR, IF NO AMOUNT WAS DUE, THE CLAIM WAS DISALLOWED AS LACKING IN MERIT. FROM THE INFORMATION THAT IS AVAILABLE IN THE MATTER IT APPEARS PROBABLE THAT ALL AMOUNTS DUE INCIDENT TO YOUR SON'S MILITARY SERVICE HAVE BEEN ALLOWED IN ACCORDANCE WITH THE REQUIREMENTS OF THE LAW. MOREOVER, THE ACCOUNTING OFFICERS OF THE GOVERNMENT, IN THE ABSENCE OF CLEAR AND SATISFACTORY EVIDENCE OF NONPAYMENT OF A CLAIM, HAVE CONSISTENTLY REFUSED TO ALLOW A CLAIM WHERE THE CLAIMANT HAS FAILED TO ASSERT HIS RIGHTS FOR A LONG PERIOD OF TIME. SEE 4 COMP. DEC. 276; 5 COMP. DEC. 282; AND 4 COMP. GEN. 805.

UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OF THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER IT FIRST ACCRUED. THE PRIMARY PURPOSE OF THE ACT WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. SEE 32 COMP. GEN. 107. THE LIMITATION PRESCRIBED BY THE 1940 ACT UPON THE 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. COMPARE BARTLESVILLE ZINC CO. V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES 56 F.2D 828. ACCORDINGLY, NO MATTER HOW MERITORIOUS A CLAIM MAY BE, 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 BY OUR OFFICE.

SINCE, SO FAR AS DISCLOSED BY THE RECORDS AVAILABLE TO US, YOUR PRESENT CLAIM WAS NOT RECEIVED IN OUR OFFICE PRIOR TO OCTOBER 1, 1962, AND EVIDENCE OF DEATH OF YOUR SON WAS RECEIVED JULY 18, 1945, CONSIDERATION THEREOF IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940. ACCORDINGLY, THERE IS NO FURTHER ACTION WE OR OTHER AGENCIES OF THE GOVERNMENT MAY TAKE ON YOUR CLAIM.

REGARDING YOUR INQUIRY WHETHER JOHN P. LAMAR IS NOW IN THE MILITARY SERVICE, WE DO NOT KEEP RECORDS OF ALL MEMBERS OF THE MILITARY SERVICES. THE DEPARTMENT OF DEFENSE HAS INFORMALLY ADVISED US THAT SINCE IT DOES NOT HAVE A CENTRAL LOCATOR FOR THE PURPOSE OF ASCERTAINING IF A PERSON IS A MEMBER OF ONE OF THE MILITARY SERVICES, IT WILL BE NECESSARY FOR YOU TO WRITE TO EACH MILITARY DEPARTMENT FOR SUCH INFORMATION. THE ADDRESSES OF THE DEPARTMENTS TO WHICH YOUR INQUIRIES MIGHT BE DIRECTED ARE AS FOLLOWS: ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C.; CHIEF OF THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, WASHINGTON 25, D.C.; AND DIRECTORATE OF ADMINISTRATIVE SERVICES, HEADQUARTERS, UNITED STATES AIR FORCE, PENTAGON, WASHINGTON 25, D.C. ..END :