B-131763, MAY 17, 1957

B-131763, MAY 17, 1957

TO MR. HADZ R. JOLO:

REFERENCE IS MADE TO A LETTER DATED APRIL 11, 1957, FROM YOUR ATTORNEY, ALERT M. FRANCO, IN EFFECT REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN CONNECTION WITH YOUR CLAIM FOR PAY AND ALLOWANCES ALLEGED TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY DURING THE PERIOD MAY 11, 1942, TO DECEMBER 1943.

THE RECORD SHOWS THAT YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON APRIL 12, 1956. IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, YOUR CLAIM WAS RETURNED TO YOU UNDER DATE OF JUNE 4, 1956, TOGETHER WITH A COPY OF THE CITED ACT, SINCE THE SAME WAS NOT RECEIVED IN OUR OFFICE WITHIN THE PRESCRIBED TIME LIMIT.

SECTION 1 OF THAT ACT PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE 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, AND FURTHER PROVIDES 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. YOUR ATTORNEY STATES THAT THE TREATY OF PEACE WITH JAPAN WAS SIGNED BY THE PRESIDENT ON APRIL 15, 1952, AND HE URGES, THEREFORE, THAT YOUR CLAIM WAS TIMELY PRESENTED.

SECTION 3 OF JOINT RESOLUTION APPROVED 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 THE CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941. PART 2, SENATE REPORT 339, 80TH CONGRESS, AT PAGE 94, CONCERNING THE EFFECT OF THAT STATUTORY PROVISION, READS AS FOLLOWS:

"489. WHEN A CLAIM AGAINST THE UNITED STATES ACCRUES IN TIME OF WAR, TO A PERSON IN THE MILITARY OR NAVAL SERVICE, OR WHEN WAR INTERVENES WITHIN 5 YEARS AFTER ACCRUAL OF SUCH CLAIM, IT MAY BE PRESENTED WITHIN 5 YEARS AFTER THE CLOSE OF THE WAR, EVEN THOUGH THIS WOULD EXCEED THE ORDINARY LIMITATION OF 10 YEARS. OCTOBER 9, 1940 (54 STAT. 1051, CH. 788, SEC. 1).

"TERMINATED. THE RESOLUTION HAS THE EFFECT OF TERMINATING THE WAR FOR THE PURPOSES OF THIS PROVISION AND THUS BEGINNING THE 5-YEAR PERIOD WITHIN WHICH CLAIMS MAY BE FILED. THE STATUTE IS RETAINED AS PART OF THE PERMANENT LEGISLATION OF THE UNITED STATES.' HENCE IT IS CLEAR THAT THE CONGRESS INTENDED THAT FOR THE PURPOSES OF THE ACT OF OCTOBER 9, 1940, PEACE SHOULD BE CONSIDERED AS HAVING BEEN ESTABLISHED ON JULY 25, 1947, EVEN THOUGH A PEACE TREATY HAD NOT THEN BEEN SIGNED.

IT APPEARS THAT YOUR CLAIM FULLY ACCRUED BY DECEMBER 31, 1943. TEN YEARS FROM DECEMBER 31, 1943, WOULD EXPIRE ON DECEMBER 30, 1953. FIVE YEARS AFTER JULY 25, 1947, WOULD HAVE EXPIRED JULY 24, 1952, AND THUS IT IS APPARENT THAT YOUR CLAIM WAS NOT FILED WITHIN THE PRESCRIBED TIME IN ORDER TO BE ALLOWED. UNDER THE APPLICABLE PROVISIONS OF LAW, THE CONSIDERATION OF YOUR CLAIM IS NOT AUTHORIZED, SINCE IT WAS NOT RECEIVED WITHIN TEN YEARS AFTER DECEMBER 31, 1943, OR WITHIN FIVE YEARS AFTER JULY 25, 1947, THE DATE SPECIFIED BY THE CONGRESS AS THE DATE OF TERMINATION OF ANY STATE OF WAR THERETOFORE DECLARED BY THE CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941. THE ACTION TAKEN BY OUR CLAIMS DIVISION IN CONNECTION WITH YOUR CLAIM APPEARS TO HAVE BEEN CORRECT AND THE SAME IS HEREBY SUSTAINED.