B-124501, OCT. 25, 1955

B-124501: Oct 25, 1955

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LENORE KATZ: REFERENCE IS MADE TO LETTER DATED MARCH 28. YOUR CLAIM FOR THE ARREARS OF PAY DUE THE ESTATE OF THE DECEASED OFFICER WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 14. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. "/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE. IT IS URGED THAT THE PEACE TREATY BETWEEN JAPAN AND THE UNITED STATES WAS ENTERED INTO ON SEPTEMBER 8. THAT FIVE YEARS FROM THAT DATE IS SEPTEMBER 7. THAT YOUR CLAIM WAS PRESENTED ON FEBRUARY 14. IT WILL BE NOTED THAT THE ABOVE-QUOTED STATUTORY PROVISIONS EXPRESSLY PROHIBIT CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF ANY CLAIM FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

B-124501, OCT. 25, 1955

TO MRS. LENORE KATZ:

REFERENCE IS MADE TO LETTER DATED MARCH 28, 1955, WRITTEN IN YOUR BEHALF BY NIESEN AND SCHERMER, ATTORNEYS AT LAW, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237, BARRING YOUR CLAIM, AS ADMINISTRATRIX OF THE ESTATE OF RALPH A. PLATE, FOR THE BALANCE OF ARREARS OF PAY BELIEVED TO BE DUE THE DECEDENT'S ESTATE, INCIDENT TO HIS SERVICES AS CAPTAIN, UNITED STATES ARMY.

YOUR CLAIM FOR THE ARREARS OF PAY DUE THE ESTATE OF THE DECEASED OFFICER WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 14, 1955, AND ON MARCH 22, 1955, THE CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE SAID ACT OF OCTOBER 9, 1940, WHICH PROVIDES 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.

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN THE LETTER OF MARCH 28, 1955, IT IS URGED THAT THE PEACE TREATY BETWEEN JAPAN AND THE UNITED STATES WAS ENTERED INTO ON SEPTEMBER 8, 1951; THAT FIVE YEARS FROM THAT DATE IS SEPTEMBER 7, 956; AND THAT YOUR CLAIM WAS PRESENTED ON FEBRUARY 14, 1955, A DATE WELL WITHIN THE FIVE YEAR GRACE PERIOD ALLOWED BY THE STATUTE.

IT WILL BE NOTED THAT THE ABOVE-QUOTED STATUTORY PROVISIONS EXPRESSLY PROHIBIT CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF ANY CLAIM FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE ONLY EXCEPTION TO THAT REQUIREMENT IS CONTAINED IN THE PROVISO IN THE QUOTED ACT WHICH IS TO THE EFFECT 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. BY SECTION 3 OF JOINT RESOLUTION APPROVED JULY 25, 1947, 61 STAT. 451, 454, IT WAS PROVIDED THAT IN THE INTERPRETATION OF SECTION 1 OF THE AFORESAID ACT OF OCTOBER 9, 1940, THE DATE WHEN THE JOINT RESOLUTION BECAME EFFECTIVE SHOULD BE DEEMED TO BE THE DATE OF THE TERMINATION OF ANY STATE OR WAR THERETOFORE DECLARED BY THE CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941. FIVE YEARS FROM THE DATE OF APPROVAL (EFFECTIVE DATE) OF THE JOINT RESOLUTION EXPIRED ON JULY 25, 1952.

THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED, OR, IF THE CLAIMS ARE THOSE OF SERVICE PERSONNEL WHICH ACCRUED IN TIME OF WAR, THEY MAY NOT BE CONSIDERED IF FILED MORE THAN FIVE YEARS AFTER PEACE IS ESTABLISHED. THE RIGHT TO THE PAY HERE INVOLVED FIRST ACCRUED TO THE DECEDENT ON (AND BEFORE) MAY 8, 1944, THE DATE HE WAS DECLARED DEAD. THE TEN YEAR PERIOD EXPIRED ON MAY 7, 1954.

THE LIMITATION, PRESCRIBED BY THE STATUTE, UPON 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 COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BY GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267.

ACCORDINGLY, YOU ARE ADVISED THAT THE ACTION TAKEN IN RETURNING YOUR CLAIM WAS IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AND NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.