B-106890, AUG. 11, 1970

B-106890: Aug 11, 1970

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COAST & GEODETIC SURVEY WHO WAS GRANTED LEAVE WITHOUT PAY FOR PURPOSE OF ATTENDING SCHOOL AS FULL TIME STUDENT TO OBTAIN DEGREE IN CIVIL ENGINEERING FROM JUNE 15 TO OCTOBER 10. MAY NOT HAVE THE THREE MONTHS AND 26 DAYS CREDITED FOR CONTINUOUS SERVICE FOR LONGEVITY PAY PURPOSES. SINCE CLAIM IS TIME BARRED AND CONSIDERATION AS MERITORIOUS CLAIM UNDER 31 U.S.C. 236 IS EXPRESSLY INCLUDED IN THE BARRING PROVISIONS OF THE 1940 ACT. RANDALL: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 1. IN WHICH YOU ASK THAT THE PART OF YOUR CLAIM WHICH WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED APRIL 2. YOU WERE COMMISSIONED AN ENSIGN IN THE COAST AND GEODETIC SURVEY AND HAVE SERVED ON CONTINUOUS ACTIVE DUTY SINCE THAT DATE.

B-106890, AUG. 11, 1970

MERITORIOUS CLAIM -- BARRED ACT DECISION TO OFFICER OF THE U.S. COAST & GEODETIC SURVEY, SUSTAINING DISALLOWANCE OF THE REMAINDER OF A CLAIMS SETTLEMENT OF APRIL 2, 1970 FOR LONGEVITY PAY PRIOR TO JUNE 11, 1959, WHICH BECAME TIME BARRED. MEMBER OF THE U.S. COAST & GEODETIC SURVEY WHO WAS GRANTED LEAVE WITHOUT PAY FOR PURPOSE OF ATTENDING SCHOOL AS FULL TIME STUDENT TO OBTAIN DEGREE IN CIVIL ENGINEERING FROM JUNE 15 TO OCTOBER 10, 1943, MAY NOT HAVE THE THREE MONTHS AND 26 DAYS CREDITED FOR CONTINUOUS SERVICE FOR LONGEVITY PAY PURPOSES, SINCE CLAIM IS TIME BARRED AND CONSIDERATION AS MERITORIOUS CLAIM UNDER 31 U.S.C. 236 IS EXPRESSLY INCLUDED IN THE BARRING PROVISIONS OF THE 1940 ACT.

TO CAPTAIN WILLIAM E. RANDALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 1, 1970, IN WHICH YOU ASK THAT THE PART OF YOUR CLAIM WHICH WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED APRIL 2, 1970, BE GIVEN CONSIDERATION UNDER THE ACT OF APRIL 10, 1928, CH. 344, 45 STAT. 413, 31 U.S.C. 236.

THE RECORD DISCLOSES THAT YOU SERVED AS A JUNIOR ENGINEER IN THE UNITED STATES COAST AND GEODETIC SURVEY FROM NOVEMBER 9, 1942, THROUGH DECEMBER 12, 1943. EFFECTIVE DECEMBER 13, 1943, YOU WERE COMMISSIONED AN ENSIGN IN THE COAST AND GEODETIC SURVEY AND HAVE SERVED ON CONTINUOUS ACTIVE DUTY SINCE THAT DATE. ON MAY 17, 1943, YOU SUBMITTED A REQUEST FOR LEAVE WITHOUT PAY FOR THE PURPOSE OF RETURNING TO SCHOOL AS A FULL-TIME STUDENT IN ORDER TO OBTAIN A DEGREE IN CIVIL ENGINEERING. THIS REQUEST WAS GRANTED AND YOU WERE IN A LEAVE WITHOUT PAY STATUS FROM JUNE 15, 1943, TO OCTOBER 10, 1943, A PERIOD OF 3 MONTHS AND 26 DAYS.

IT APPEARS THAT FROM THE TIME OF YOUR APPOINTMENT AS AN ENSIGN IN THE COAST AND GEODETIC SURVEY YOU WERE CREDITED FOR BASIC PAY PURPOSES WITH CONTINUOUS SERVICE FROM NOVEMBER 9, 1942, UNTIL 1953 WHEN GENERAL ACCOUNTING OFFICE NOTICE OF EXCEPTION NO. 4Q02 WAS ISSUED BY OUR DIVISION OF AUDITS, CIVIL PAY SECTION, DENYING THE CREDITABILITY OF THE PERIOD OF LEAVE WITHOUT PAY. WHEN THE EXCEPTION WAS TAKEN YOUR CONTROL DATE FOR PAY PURPOSES WAS CHANGED TO MARCH 5, 1943.

THE SETTLEMENT OF APRIL 2, 1970, ALLOWED YOU $751.42 COVERING DIFFERENT PERIODS BETWEEN NOVEMBER 9, 1960, TO MARCH 4, 1969. SINCE YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE UNTIL JUNE 11, 1969, THAT PORTION OF YOUR CLAIM FOR THE PERIOD PRIOR TO JUNE 11, 1959, WAS BARRED PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A.

YOU NOW CONTEND THAT THE BARRING OF YOUR CLAIM FOR THE PERIOD PRIOR TO JUNE 11, 1959, IS UNJUST IN VIEW OF THE CIRCUMSTANCES THAT PREVAILED IN 1953 AT THE TIME OF THE GENERAL ACCOUNTING OFFICE EXCEPTION. YOU STATE THAT AT THAT TIME YOU WERE UNPREPARED AND ILL-EQUIPPED TO CONTEST THE EXCEPTION. UNDER SUCH CIRCUMSTANCES YOU EXPRESS THE VIEW THAT IT IS UNREASONABLE TO EXPECT AN INDIVIDUAL TO DEFEND HIMSELF AGAINST THIS OFFICE WHEN HIS OWN AGENCY WOULD NOT ASSIST HIM. HENCE, YOU ASK THAT THE COMPTROLLER GENERAL SUBMIT YOUR CLAIM TO THE CONGRESS AS A MERITORIOUS CLAIM UNDER THE 1928 ACT.

THE ACT OF APRIL 10, 1928, PROVIDES AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

THE REASON THAT OUR SETTLEMENT COVERED ONLY A 10-YEAR PERIOD PRIOR TO THE DATE THE CLAIM WAS RECEIVED HERE IS THAT THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A AND 237, PRECLUDES US FROM CONSIDERING ANY PRIOR PERIODS. THAT ACT PROVIDES IN PART AS FOLLOWS:

"(1) 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 SECTIONS 71 AND 236 OF THIS TITLE, 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."

YOU WILL NOTE THAT MERITORIOUS CLAIMS COGNIZABLE UNDER THE 1928 ACT (31 U.S.C. 236) ARE EXPRESSLY INCLUDED IN THE BARRING PROVISIONS OF THE 1940 ACT. SINCE YOUR CLAIM FIRST ACCRUED IN 1953, MORE THAN 10 YEARS PRIOR TO JUNE 11, 1969, THE DATE YOUR CLAIM WAS RECEIVED IN THIS OFFICE, IT FOLLOWS AS A MATTER OF LAW THAT WE MAY NOT REPORT YOUR CLAIM TO THE CONGRESS.