B-107211, MAY 8, 1987, OFFICE OF GENERAL COUNSEL

B-107211: May 8, 1987

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BASED ON OUR LEGAL DETERMINATION IN 1952 THAT HE WAS ENTITLED TO SUCH PAY. THE HONORABLE JIM MOODY: THIS IS IN RESPONSE TO YOUR LETTER OF APRIL 1. BASED ON OUR LEGAL DETERMINATION IN 1952 THAT THE CLAIM WAS VALID. GRUNDT'S CLAIM BECAUSE RELEVANT GOVERNMENT RECORDS HAVE BEEN DESTROYED PURSUANT TO LAW AND MR. IF GOVERNMENT RECORDS HAVE BEEN DESTROYED PURSUANT TO LAW BECAUSE OF A LAPSE OF TIME. THE CLAIMANT'S EVIDENTIARY BURDEN IS EXTREMELY DIFFICULT TO SATISFY. THERE HAVE BEEN ONLY A FEW INSTANCES IN WHICH A CLAIMANT HAS PRESENTED US WITH EVIDENCE WHICH WE HAVE DEEMED SUFFICIENT TO ESTABLISH NONPAYMENT OF A CLAIM. THERE IS NO EVIDENCE IN THE PRESENT RECORD WHICH WOULD PERMIT US TO VERIFY THAT MR.

B-107211, MAY 8, 1987, OFFICE OF GENERAL COUNSEL

MILITARY PERSONNEL - PAY - RETROACTIVE PAY - ELIGIBILITY - BURDEN OF PROOF DIGEST: FORMER ARMY MEMBER REQUESTS PAYMENT OF ACTIVE DUTY PAY FROM OCTOBER 1, 1944, TO OCTOBER 25, 1945, BASED ON OUR LEGAL DETERMINATION IN 1952 THAT HE WAS ENTITLED TO SUCH PAY. WE ADVISE THE INTERESTED CONGRESSMAN THAT, IN THE ABSENCE OF PERTINENT GOVERNMENT RECORDS, THE FORMER MEMBER'S CLAIM MAY BE PAID ONLY IF HE FURNISHES CLEAR AND SATISFACTORY EVIDENCE THAT THE CLAIM HAS NEVER BEEN SATISFIED.

THE HONORABLE JIM MOODY:

THIS IS IN RESPONSE TO YOUR LETTER OF APRIL 1, 1987, REQUESTING ADDITIONAL ADVICE CONCERNING MR. EDWARD L. GRUNDT'S CLAIM AGAINST THE DEPARTMENT OF THE ARMY FOR ACTIVE DUTY PAY BETWEEN OCTOBER 1, 1944, AND OCTOBER 25, 1945, BASED ON OUR LEGAL DETERMINATION IN 1952 THAT THE CLAIM WAS VALID. IN OUR LETTER OF MARCH 17, 1987, WE ADVISED YOU THAT WE HAD NO BASIS FOR ALLOWING PAYMENT OF MR. GRUNDT'S CLAIM BECAUSE RELEVANT GOVERNMENT RECORDS HAVE BEEN DESTROYED PURSUANT TO LAW AND MR. GRUNDT SUPPLIED NO OTHER EVIDENCE PERMITTING VERIFICATION THAT HIS CLAIM HAD NEVER BEEN SATISFIED BY THE ARMY. IN YOUR LETTER OF APRIL 1, YOU ASK THAT WE IDENTIFY THE TYPE OF EVIDENCE MR. GRUNDT MUST FURNISH IN ORDER TO OBTAIN PAYMENT OF HIS CLAIM.

AS WE NOTED IN OUR LETTER OF MARCH 17, AN EMPLOYEE PRESSING EVEN A VALID CLAIM HAS THE BURDEN OF PROVING THAT HIS CLAIM HAS NEVER BEEN PAID. ORDINARILY, PROOF OF PAYMENT OR NONPAYMENT OF A CLAIM CAN BE FOUND IN GOVERNMENT RECORDS. HOWEVER, IF GOVERNMENT RECORDS HAVE BEEN DESTROYED PURSUANT TO LAW BECAUSE OF A LAPSE OF TIME, THE CLAIMANT MAY OBTAIN PAYMENT OF HIS CLAIM ONLY IF HE PRESENTS CLEAR AND SATISFACTORY EVIDENCE THAT THE CLAIM HAS NOT PREVIOUSLY BEEN PAID. SEE TABLE TALK, INC., B-183803, JANUARY 14, 1976. THE CLAIMANT'S EVIDENTIARY BURDEN IS EXTREMELY DIFFICULT TO SATISFY, AND THERE HAVE BEEN ONLY A FEW INSTANCES IN WHICH A CLAIMANT HAS PRESENTED US WITH EVIDENCE WHICH WE HAVE DEEMED SUFFICIENT TO ESTABLISH NONPAYMENT OF A CLAIM. SEE CLAIM OF COMMONWEALTH OF MASSACHUSETTS FOR $71,533.04, B-217562, SEPTEMBER 30, 1985 (STATE FURNISHED SUFFICIENT PROOF THAT FEDERAL AGENCY HAD NEVER PAID ITS CLAIM FOR REAL ESTATE RENTAL EXPENSES BECAUSE IT SHOWED THAT THE AGENCY HAD RETURNED THE STATE'S VOUCHER UNPAID AND HAD NOT ENTERED RENTAL EXPENSES FOR THE PERIOD IN QUESTION INTO ITS PAYMENT BOOKS).

THERE IS NO EVIDENCE IN THE PRESENT RECORD WHICH WOULD PERMIT US TO VERIFY THAT MR. GRUNDT'S CLAIM WAS NEVER PAID BY THE ARMY, AND WE RECOGNIZE THAT MR. GRUNDT MAY NOT HAVE SUCH EVIDENCE IN HIS POSSESSION. WE WOULD, OF COURSE, GIVE FAVORABLE CONSIDERATION TO ANY CORRESPONDENCE BETWEEN MR. GRUNDT AND THE ARMY DURING THE 35-YEAR PERIOD AFTER WE CONSIDERED HIS CLAIM, INDICATING THAT MR. GRUNDT REQUESTED AND WAS REFUSED PAYMENT. HOWEVER, IN THE ABSENCE OF EVIDENCE THAT MR. GRUNDT'S CLAIM WAS NEVER SATISFIED, WE HAVE NO AUTHORITY TO CERTIFY THE CLAIM FOR PAYMENT. IT IS WELL SETTLED THAT ACCOUNTING OFFICERS OF THE GOVERNMENT MUST DISALLOW ANY CLAIM FOR WHICH THE GOVERNMENT'S LIABILITY HAS NOT BEEN CLEARLY ESTABLISHED, LEAVING THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONG WILL V. UNITED STATES, 17 CT.CL. 288, 291 (1881); CHARLES V. UNITED STATES, 19 CT.CL. 316, 319 (1884).

WE ARE ENCLOSING COPIES OF THE ABOVE-CITED DECISIONS, WITH THE HOPE THAT THIS INFORMATION WILL ENABLE YOU TO RESPOND TO YOUR CONSTITUENT.

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