B-129359, OCT. 26, 1956

B-129359: Oct 26, 1956

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GAMBALE: WE HAVE RECEIVED FROM THE FINANCE CENTER. IT APPEARS THAT YOUR CLAIM WAS RECEIVED IN OUR OFFICE ON APRIL 26. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEAR AFTER PEACE IS ESTABLISHED. IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT A PROVISO TO A GENERAL PROVISION IN A STATUTE 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 THOSE 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. THE CONSIDERATION OF YOUR CLAIM IS NOT AUTHORIZED SINCE IT WAS NOT RECEIVED IN OUR OFFICE WITHIN TEN YEARS AFTER AUGUST 29.

B-129359, OCT. 26, 1956

TO MR. FRANK N. GAMBALE:

WE HAVE RECEIVED FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA, YOUR LETTER OF AUGUST 27, 1956, IN WHICH YOU CONTEND THAT BECAUSE OF THE "INTERVENING WAR IN KOREA" THE STATUTE OF LIMITATIONS HAS NOT RUN ON YOUR CLAIM FOR ADDITIONAL LONGEVITY PAY INCIDENT TO YOUR ARMY SERVICE FROM MARCH 27, 1944, TO AUGUST 29, 1945. IT APPEARS THAT YOUR CLAIM WAS RECEIVED IN OUR OFFICE ON APRIL 26, 1956.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES---

"THAT 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 SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), 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 YEAR AFTER PEACE IS ESTABLISHED.

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

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 A PROVISO TO A GENERAL PROVISION IN A STATUTE 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, 54 STAT. 1061, 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 THOSE INSTANCES SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

YOUR CLAIM HAD FULLY ACCRUED ON AUGUST 29, 1945, ON WHICH DATE IT APPEARS THAT YOUR MILITARY SERVICE TERMINATED. TEN YEARS FROM THAT DATE WOULD EXPIRE ON AUGUST 28, 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 AUGUST 29, 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.

ACCORDINGLY, UNDER THE APPLICABLE PROVISIONS OF LAW, THE CONSIDERATION OF YOUR CLAIM IS NOT AUTHORIZED SINCE IT WAS NOT RECEIVED IN OUR OFFICE WITHIN TEN YEARS AFTER AUGUST 29, 1945, THE LAST DATE ON WHICH A PORTION OF IT ACCRUED.