B-139065, DEC. 11, 1962

B-139065, DEC. 11, 1962

TO ANSELL AND ANSELL:

YOUR LETTER DATED OCTOBER 18, 1962, REASSERTS, ON BEHALF OF CAPTAIN LARA P. GOOD, UNITED STATES ARMY, RETIRED, THAT PORTION OF HIS CLAIM FOR ADJUSTMENT OF RETIRED PAY PURSUANT TO THE DECISION IN THE CASE OF GORDON V. UNITED STATES, 134 CT.CL. 840, FOR THE PERIOD PRIOR TO AUGUST 6, 1948, WHICH WAS DENIED BY SETTLEMENT DATED DECEMBER 30, 1958, AND, UPON REVIEW, BY OUR DECISION OF JULY 1, 1959, B-139065.

CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD PRIOR TO AUGUST 56, 1948, WAS DENIED PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH, BY ITS EXPRESS PROVISIONS FOREVER BARS EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THAT ACTION WAS BASED ON THE FACT THAT THE ONLY CLAIM OF RECORD FOR THE ADDITIONAL RETIRED PAY IS LETTER DATED AUGUST 2, 1958, RECEIVED IN THE GENERAL ACCOUNTING OFFICE AUGUST 6, 1958, THE FILE PERTAINING TO PRIOR CLAIMS FILED BY THE CLAIMANT HAVING BEEN DESTROYED PURSUANT TO LAW ON OR ABOUT APRIL 11, 1958. THERE IS NO RECORD IN THIS OFFICE TO SUPPORT THE CONTENTION THAT A CLAIM WAS ACTUALLY RECEIVED BY THIS OFFICE SOMETIME DURING 1945. SINCE THE PHOTOSTATIC COPY OF LETTER DATED JUNE 15, 1945, PURPORTEDLY MAILED TO THIS OFFICE CANNOT BE CONSIDERED SUFFICIENT TO SUPPORT PAYMENT IN THE ABSENCE OF OTHER EVIDENCE INDICATING THAT THE CLAIM WAS ACTUALLY RECEIVED, AND THE BURDEN OF PROOF OF A CLAIM AGAINST THE UNITED STATES BEING ON THE CLAIMANT, IT WAS HELD THAT WE WERE PRECLUDED FROM CONSIDERING THE CLAIM UNDER THE PLAIN TERMS OF THE 1940 ACT.

YOU SUBMITTED WITH YOUR LETTER AN AFFIDAVIT DATED FEBRUARY 2, 1960, IN WHICH THE CLAIMANT SAYS, AMONG OTHER THINGS, THAT WHEN HIS REQUEST THAT HIS RETIRED PAY BE CALCULATED ON THE BASIS OF 27 YEARS OF LONGEVITY SERVICE WAS DENIED BY THE ARMY FINANCE OFFICER WITH THE SUGGESTION THAT HE MIGHT SUBMIT HIS CLAIM DIRECTLY TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, HE DID, ON JUNE 15, 1945, WRITE A LETTER TO THE GENERAL ACCOUNTING OFFICE CLAIMS DIVISION, WASHINGTON, D.C., AND THAT HE DID PROPERLY PLACE IN THE MAIL SHORTLY AFTERWARD THE SAID LETTER SO ADDRESSED. IN THAT RESPECT THE AFFIDAVIT MERELY RESTATES THE CLAIMANT'S PREVIOUS CONTENTIONS. IT IS YOUR POSITION THAT THIS "ADDITIONAL EVIDENCE" IN THE FORM OF STATEMENTS OF THE CLAIMANT IS SUFFICIENT TO INDICATE THAT THE CLAIM WAS ACTUALLY RECEIVED IN THE GENERAL ACCOUNTING OFFICE IN 1945 AND IS SUFFICIENT TO SUPPORT PAYMENT OF CAPTAIN GOOD'S CLAIM FOR THE PERIOD PRIOR TO AUGUST 6, 1948.

WHILE FOR CERTAIN PURPOSES IT HAS BEEN HELD THAT THE DEPOSITING OF A LETTER IN THE MAILS PROPERLY ADDRESSED AND WITH POSTAGE PREPAID INFERS ITS RECEIPT BY THE ADDRESSEE, A STATEMENT BY THE CLAIMANT THAT HE TOOK SUCH ACTION, UNSUPPORTED BY THE OFFICIAL RECORDS, IS NOT SUFFICIENT EVIDENCE OF RECEIPT OF A CLAIM SO AS TO TOLL THE ACT OF OCTOBER 9, 1940, OR JUSTIFY THE EXPENDITURE OF PUBLIC FUNDS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316.

THE LIMITATION PRESCRIBED BY THE STATUTE 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. SEE 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 CAPTAIN GOOD HAS BEEN ALLOWED ADJUSTMENT OF RETIRED PAY FOR THE PERIOD SUBSEQUENT TO AUGUST 6, 1948, HE HAS BEEN PAID FOR THE PERIOD WHICH LEGALLY MAY BE CONSIDERED BY THIS OFFICE. ACCORDINGLY, THE PREVIOUS ACTIONS IN HIS CASE MUST BE SUSTAINED.