B-153955, AUG. 19, 1964

B-153955, AUG. 19, 1964

TO MISS LUCIA REXAS:

WE HAVE YOUR LETTER OF AUGUST 4, 1964, ACKNOWLEDGING RECEIPT OF OUR DECISION OF JUNE 30, 1964, B-153955, AND FORWARDING FORM LETTER DATED FEBRUARY 23, 1946, FROM THE RECEIPTS AND DISBURSEMENTS DIVISION, HEADQUARTERS, UNITED STATES ARMY FORCES WESTERN PACIFIC, OFFICE OF THE FISCAL DIRECTOR, TO SUPPORT YOUR CONTENTION THAT YOU TIMELY FILED A CLAIM FOR THE 6-MONTHS' DEATH GRATUITY IN THE CASE OF YOUR LATE FATHER, CONSTANCIO REXAS, PRIVATE FIRST CLASS, PHILIPPINE SCOUTS, WHOSE DEATH WAS ESTABLISHED ON NOVEMBER 11, 1945.

YOU WERE ADVISED IN OUR DECISIONS OF MAY 14, 1964, AND JUNE 30, 1964, B- 153955, THAT THIS OFFICE WAS EXPRESSLY PROHIBITED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, FROM CONSIDERING YOUR CLAIM FOR THE 6-MONTHS' DEATH GRATUITY FOR THE REASON THAT YOUR CLAIM WAS RECEIVED HERE ON NOVEMBER 26, 1963, OR MORE THAN 10 YEARS--- THE TIME LIMITATION PRESCRIBED IN THAT ACT--- AFTER NOVEMBER 11, 1945, THE DATE OF ACCRUAL OF THE CLAIM. WE ALSO ADVISED YOU THAT EVEN IF IT WERE ESTABLISHED THAT YOU FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY WITHIN THE STATUTORY 10-YEAR PERIOD THAT FACT ALONE WOULD NOT AFFORD A LEGAL BASIS FOR THIS OFFICE TO CONSIDER YOUR CLAIM SINCE THE LAW SPECIFICALLY REQUIRES THAT YOUR CLAIM MUST BE FILED IN THIS OFFICE WITHIN SUCH PERIOD IN ORDER FOR IT TO BE CONSIDERED ON ITS MERITS. INASMUCH AS THE RECORD ESTABLISHES THAT YOUR CLAIM WAS NOT RECEIVED HERE UNTIL THE EXPIRATION OF A PERIOD OF MORE THAN 18 YEARS AFTER IT ACCRUED, THIS OFFICE HAD NO ALTERNATIVE BUT TO INFORM YOU THAT UNDER THE LAW YOUR CLAIM WAS BARRED FROM CONSIDERATION. WE HAVE NO AUTHORITY TO WAIVE THE PROVISIONS OF THE BARRING ACT IN ANY CASE. CONSEQUENTLY NO FURTHER ACTION MAY BE TAKEN IN THE MATTER BY THIS OFFICE.

WITH REGARD TO YOUR REQUEST FOR PAYMENT OF THE GRATUITY UNDER PUBLIC LAW 881, 84TH CONGRESS, APPROVED AUGUST 1, 1956, 70 STAT. 868, YOU ARE ADVISED THAT THE ACT SPECIFICALLY PROVIDED FOR ITS APPLICATION ONLY IN CASES OF SERVICE MEMBERS OR FORMER SERVICE MEMBERS WHO DIE ON OR AFTER JANUARY 1, 1957. AS STATED ABOVE, THE RIGHT TO RECEIVE THE 6 MONTHS' DEATH GRATUITY ACCRUES ON THE DATE OF DEATH OR DETERMINATION OF PRESUMPTIVE DEATH OF A SERVICE MEMBER AND THE DETERMINATION OF THE PERSON OR PERSONS ENTITLED TO SUCH GRATUITY IS DEPENDENT UPON THE PROVISIONS OF THE GOVERNING LAW IN EFFECT ON SUCH DATE. SINCE YOUR FATHER'S DEATH WAS ESTABLISHED ON NOVEMBER 11, 1945, THE PROVISIONS OF THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903 (1940 ED. SUPP. IV), WHICH WERE IN EFFECT ON NOVEMBER 11, 1945, WOULD HAVE BEEN FOR APPLICATION IN THIS CASE IF YOUR CLAIM HAD BEEN TIMELY FILED IN THIS OFFICE.

IN ACCORDANCE WITH YOUR REQUEST, LETTER DATED FEBRUARY 23, 1946, FROM THE RECEIPTS AND DISBURSEMENTS DIVISION IS RETURNED.