B-126904, APR. 4, 1956

B-126904, APR. 4, 1956

TO MRS. JOSEPHINE M. CASTLE:

REFERENCE IS MADE TO LETTER DATED DECEMBER 30, 1955, WRITTEN ON YOUR BEHALF BY MR. MONTE C. FISCUS CONCERNING YOUR CLAIM FOR ARREARS OF PAY DUE THE ESTATE OF YOUR LATE SON, WILLIAM J. CASTLE, JR., STAFF SERGEANT, AIR CORPS, AS OF MAY 9, 1945, THE DATE ESTABLISHED FOR PAY PURPOSES BY THE WAR DEPARTMENT AS THE PRESUMPTIVE DATE OF HIS DEATH.

BY LETTER DATED SEPTEMBER 10, 1945, THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) FORWARDED TO OUR CLAIMS DIVISION A DEPARTMENTAL SETTLEMENT OF THE DECEDENT'S PAY ACCOUNT FROM WHICH IT APPEARED THAT THE SUM OF $1,069.24 WAS DUE THE ESTATE OF YOUR SON AS ARREARS OF PAY AS OF THE PRESUMPTIVE DATE OF HIS DEATH. THERE WAS ALSO TRANSMITTED WITH THE LETTER OF SEPTEMBER 10, 1945, AN APPLICATION DATED JUNE 9, 1945, BY WILLIAM J. CASTLE, SR., FATHER OF THE DECEDENT, FOR PAYMENT OF THE ARREARS OF PAY. THE APPLICANT CERTIFIED THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW OR DESCENDANTS BUT THAT HE WAS SURVIVED BY HIS FATHER AND MOTHER. SETTLEMENT DATED NOVEMBER 13, 1945, OF THE CLAIMS DIVISION THE FATHER WAS ALLOWED THE SUM OF $500 AS HIS SHARE OF THE AMOUNT DUE AND HE WAS ADVISED THAT A LIKE SUM WAS RESERVED FOR THE MOTHER PENDING THE RECEIPT OF HER CLAIM FOR SUCH SHARE. THE SETTLEMENT ALSO CONTAINED ADVICE THAT THE SUM OF $12.80 HAD BEEN WITHHELD FROM THE TOTAL AMOUNT OF $1,069.24 DUE TO COVER AN OVERPAYMENT OF FOREIGN SERVICE PAY TO THE DECEDENT, AND THAT THE BALANCE (APPROXIMATELY $56,44) WAS ALSO RESERVED, SINCE THE ACT OF DECEMBER 7, 1944, 58 STAT. 795, THEN GOVERNING THE SETTLEMENT OF ACCOUNTS OF DECEASED MILITARY PERSONNEL, DID NOT AUTHORIZE PAYMENT IN EXCESS OF $1,000 TO OTHER THAN THE LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEDENT.

YOUR LETTER DATED NOVEMBER 8, 1955, MAKING CLAIM FOR THE AMOUNT RESERVED FOR YOU WAS RETURNED TO YOU BY OUR CLAIMS DIVISION TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES THAT A CLAIM AGAINST THE UNITED STATES SHALL BE BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED HERE WITHIN TEN FULL YEARS AFTER SUCH CLAIM FIRST ACCRUED. THE ACT ALSO PROVIDES THAT A BARRED CLAIM SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THE ACT, WHICH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION. IN THE LETTER OF DECEMBER 30, 1955, MR. FISCUS CONTENDS THAT YOUR CLAIM SHOULD BE ALLOWED, SINCE THE SETTLEMENT OF NOVEMBER 13, 1945, WAS MAILED TO THE FATHER IN AN ENVELOPE POSTMARKED DECEMBER 7, 1945, AND YOUR CLAIM, AS CONTAINED IN THE LETTER OF NOVEMBER 8, 1955, WAS RECEIVED HERE ON NOVEMBER 14, 1955, WITHIN TEN YEARS FROM THE DATE THE SETTLEMENT WAS MAILED.

YOUR RIGHT TO MAKE CLAIM FOR THE ARREARS OF PAY DUE THE ESTATE OF THE DECEDENT FIRST ACCRUED ON THE PRESUMPTIVE DATE OF HIS DEATH, NAMELY, MAY 9, 1945. SINCE YOUR CLAIM FOR YOUR SHARE OF THE AMOUNT DUE WAS NOT RECEIVED HERE UNTIL NOVEMBER 14, 1955, MORE THAN TENFULL YEARS AFTER SUCH CLAIM FIRST ACCRUED, AND THE ACT OF OCTOBER 9, 1940, PERMITS OF NO EXCEPTIONS IN SUCH CASE, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT THE ALLOWANCE OF YOUR CLAIM IS BARRED BY THAT ACT.