B-129145, OCT. 25, 1956

B-129145, OCT. 25, 1956

TO JUDGE ADVOCATE GENERAL, REPUBLIC OF THE PHILIPPINES:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 3, 1956, WITH ENCLOSURES, SIGNED BY ANTONIO S. VINLUAN, MAJOR, JAGS, CHIEF, CLAIMS BRANCH, CONCERNING YOUR CLAIM AS LEGAL REPRESENTATIVE, FOR ARREARS OF PAY BELIEVED TO BE DUE THE ESTATE OF THE LATE BENITO MARIANO, PRIVATE FIRST CLASS, PHILIPPINE SCOUTS, UNITED STATES ARMY (RETIRED).

YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON MAY 13, 1955, TOGETHER WITH AN OFFICIAL REPORT OF DEATH OF THE DECEDENT ISSUED BY THE DEPARTMENT OF THE ARMY FROM WHICH IT APPEARS THAT THE DECEDENT DIED ON MARCH 23, 1944. ON JULY 11, 1955, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237, WHICH PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL) SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN OUR OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. IN THE LETTER OF AUGUST 3, 1956, IT IS CONTENDED THAT THE CLAIM SHOULD BE ALLOWED FOR THE REASON THAT THE REPORT OF DEATH OF THE DECEDENT WAS NOT RECEIVED BY YOU FROM THE DEPARTMENT OF THE ARMY UNTIL APRIL 18, 1955.

THE ACT OF OCTOBER 9, 1940, EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED. THE ONLY EXCEPTION MADE IN THE ACT 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. UNDER THE PROVISIONS OF THE ACT OF JULY 25, 1947, 61 STAT. 451, 454, SUCH FIVE-YEAR PERIOD EXPIRED ON JULY 25, 1952. THE RIGHT TO ANY PAY DUE THE ESTATE OF THE DECEDENT HAD ACCRUED TO HIM WHEN HIS DEATH OCCURRED IN 1944 AND YOU, AS LEGAL REPRESENTATIVE, HAD NO MORE TIME IN WHICH TO FILE CLAIM FOR SUCH PAY THAN THE DECEDENT WOULD HAVE HAD IF HE HAD SURVIVED. THE LIMITATION PRESCRIBED BY THE STATUTE IS NOT A MERE STATUTE OF LIMITATION 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, WE CAN MAKE NO EXCEPTION TO THE PROVISIONS OF THE STATUTE NOR GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. SEE 25 COMP. GEN. 670; 32 ID. 267.

THE ACTION PREVIOUSLY TAKEN BY OUR CLAIMS DIVISION IN RETURNING THE CLAIM WAS IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AND ACCORDINGLY, NO FURTHER ACTION MAY BE TAKEN IN THE MATTER.