B-129183, OCT. 26, 1956

B-129183: Oct 26, 1956

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SLUSAR: REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED ON AUGUST 16. YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JUNE 7. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT WHEN A PROVISO IS ATTACHED TO A GENERAL PROVISION IN A STATUTE. THAT PROVISO IS TO BE CONSTRUED STRICTLY AND AS TAKING NO CASE OUT OF THE GENERAL PROVISION WHICH DOES NOT FALL SQUARELY WITHIN THE TERMS OF THE PROVISO. IN THESE INSTANCES SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. WOULD HAVE EXPIRED JULY 24. IT DOES NOT APPEAR THAT YOU WOULD RECEIVE ANY BENEFIT BY PERMITTING THE FILING OF THE CLAIM WITHIN FIVE YEARS AFTER PEACE WAS DECLARED.

B-129183, OCT. 26, 1956

TO MR. MICHAEL S. SLUSAR:

REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED ON AUGUST 16, 1956, CONCERNING YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF YOUR DEPENDENT WIFE FROM MILWAUKEE, WISCONSIN, TO SAN ANTONIO, TEXAS, AND RETURN, DURING NOVEMBER AND DECEMBER 1945, INCIDENT TO YOUR DISCHARGE IN NOVEMBER 1945, AS STAFF SERGEANT, ARMY OF THE UNITED STATES.

YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JUNE 7, 1956, AND ON JULY 11, 1956, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. SECTION 1 OF THE ACT PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. SECTION 1 ALSO CONTAINS A PROVISO 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 URGE THAT YOUR CLAIM BE ALLOWED ON THE BASIS THAT FIVE YEARS HAD NOT ELAPSED WHEN THE KOREAN CONFLICT INTERVENED AND THAT IT HAS NOT BEEN FIVE YEARS SINCE THAT CONFLICT ENDED.

SECTION 3 OF JOINT RESOLUTION DATED JULY 25, 1947, 61 STAT. 451, 454, PROVIDED THAT IN THE INTERPRETATION OF SECTION 1 OF THE ACT OF OCTOBER 9, 1940, THE DATE JULY 25, 1947, SHOULD BE DEEMED TO BE THE DATE OF TERMINATION OF ANY STATE OF WAR THERETOFORE DECLARED BY CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941.

IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT WHEN A PROVISO IS ATTACHED TO A GENERAL PROVISION IN A STATUTE, THAT PROVISO IS TO BE CONSTRUED STRICTLY AND AS TAKING NO CASE OUT OF THE GENERAL PROVISION WHICH DOES NOT FALL SQUARELY WITHIN THE TERMS OF THE PROVISO. UNITED STATES V. DICKSON, 15 PET. 141, 163; RYAN V. CARTER, 93 U.S. 78, 83; UNITED STATES V. EWING, 140 U.S. 142, 148; AND SCHLEMMER V. BUFFALO, ROCHESTER AND PITTSBURGH RAILWAY COMPANY, 205 U.S. 1, 10. THE PROVISO IN SECTION 1 OF THE ACT OF OCTOBER 9, 1940, RELATES, BY ITS OWN TERMS, SOLELY TO ,A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES," AND SPECIFIES THAT THE GENERAL PROVISION OF THE STATUTE MAY BE MODIFIED WHEN THE CLAIM OF A PERSON SO SERVING ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL. IN THESE INSTANCES SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

YOUR CLAIM HAD FULLY ACCRUED AT LEAST BY DECEMBER 31, 1945. IT ALSO APPEARS THAT YOUR MILITARY SERVICE TERMINATION IN NOVEMBER 1945. TEN YEARS FROM DECEMBER 31, 1945, WOULD EXPIRE ON DECEMBER 30, 1955. FIVE YEARS AFTER JULY 25, 1947, WOULD HAVE EXPIRED JULY 24, 1952, AND HENCE, IT DOES NOT APPEAR THAT YOU WOULD RECEIVE ANY BENEFIT BY PERMITTING THE FILING OF THE CLAIM WITHIN FIVE YEARS AFTER PEACE WAS DECLARED. THE PROVISO IN SECTION 1 OF THE ACT OF OCTOBER 9, 1940, RECOGNIZES THAT A PERSON SERVING IN THE MILITARY SERVICE IN TIME OF WAR MAY ENCOUNTER DIFFICULTY IN PRESENTING HIS CLAIM FOR CONSIDERATION. HOWEVER, SINCE IT DOES NOT APPEAR THAT YOU HAD ANY MILITARY SERVICE AFTER NOVEMBER 1945, WE PERCEIVE NO BASIS FOR PERMITTING ANY EXTENSION OF TIME BECAUSE OF THE KOREAN CONFLICT EVEN IF IT OTHERWISE MIGHT BE CONSIDERED TO BE WITHIN THE WORDING OF THE PROVISO.

UNDER THE APPLICABLE PROVISIONS OF LAW, THE CONSIDERATION OF YOUR CLAIM IS NOT AUTHORIZED SINCE IT WAS NOT RECEIVED WITHIN TEN YEARS AFTER THE TRAVEL OF YOUR DEPENDENT IN NOVEMBER AND DECEMBER 1945, OR WITHIN FIVE YEARS AFTER JULY 25, 1947, THE DATE SPECIFIED BY CONGRESS AS THE DATE OF TERMINATION OF ANY STATE OF WAR THERETOFORE DECLARED BY CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941.