B-132273, AUG. 22, 1957

B-132273: Aug 22, 1957

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OWEN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 6. YOUR LATE HUSBAND WAS TRANSFERRED TO THE FLEET NAVAL RESERVE AND RELEASED TO INACTIVE DUTY. WAS SUBSEQUENTLY RECALLED TO ACTIVE DUTY ON JUNE 17. SUCH ADJUSTMENT WAS BASED ON THE PROVISIONS OF THE ACT OF AUGUST 10. OWEN WAS PAID RETIRED PAY AT A GREATER RATE THAN THAT WHICH HE WAS OTHERWISE AUTHORIZED TO RECEIVE ON SEPTEMBER 30. NO ADJUSTMENT BEYOND THAT DATE WAS AUTHORIZED OR REQUIRED. WHICH WAS RECEIVED HERE ON JANUARY 3. WAS NOT FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN YEARS AFTER THE CLAIM FOR THE PERIOD PRIOR TO JANUARY 3. OUR CLAIMS DIVISION EXPLAINED TO YOU WHY WE ARE PRECLUDED FROM CONSIDERING THAT PORTION OF YOUR CLAIM PRIOR TO JANUARY 3.

B-132273, AUG. 22, 1957

TO MRS. FRANCES M. OWEN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1957, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MARCH 11, 1957, WHICH DISALLOWED THAT PORTION OF YOUR CLAIM FOR ADJUSTED RETIRED PAY DUE YOUR LATE HUSBAND, NORTON F. OWEN, CHIEF QUARTERMASTER, UNITED STATES NAVY, RETIRED, FOR THE PERIOD MAY 19, 1945, TO JANUARY 2, 1947.

THE RECORD SHOWS THAT ON FEBRUARY 21, 1929, YOUR LATE HUSBAND WAS TRANSFERRED TO THE FLEET NAVAL RESERVE AND RELEASED TO INACTIVE DUTY. WAS SUBSEQUENTLY RECALLED TO ACTIVE DUTY ON JUNE 17, 1940, AND CONTINUED ON ACTIVE DUTY UNTIL HIS RELEASE ON MAY 18, 1945. THE RECORD FURTHER SHOWS THAT HE DIED ON AUGUST 25, 1956.

BY SETTLEMENT DATED MARCH 11, 1957, OUR CLAIMS DIVISION ALLOWED YOU, AS DESIGNATED BENEFICIARY OF MR. OWEN, THE NET AMOUNT OF $742.65, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN $112.75 PER MONTH RECEIVED BY MR. OWEN AND $140.25 PER MONTH FOR THE PERIOD JANUARY 3, 1947, THROUGH SEPTEMBER 30, 1949. SUCH ADJUSTMENT WAS BASED ON THE PROVISIONS OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, AND THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SANDERS V. UNITED STATES, 120 C.CLS. 501. EFFECTIVE OCTOBER 1, 1949 (UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949), MR. OWEN WAS PAID RETIRED PAY AT A GREATER RATE THAN THAT WHICH HE WAS OTHERWISE AUTHORIZED TO RECEIVE ON SEPTEMBER 30, 1949, AND, HENCE, NO ADJUSTMENT BEYOND THAT DATE WAS AUTHORIZED OR REQUIRED. THE SETTLEMENT DISALLOWED THAT PORTION OF YOUR CLAIM PRIOR TO JANUARY 3, 1947, BECAUSE YOUR CLAIM, WHICH WAS RECEIVED HERE ON JANUARY 3, 1957, WAS NOT FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN YEARS AFTER THE CLAIM FOR THE PERIOD PRIOR TO JANUARY 3, 1947, FIRST ACCRUED AS REQUIRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. BY LETTER DATED MAY 27, 1957, OUR CLAIMS DIVISION EXPLAINED TO YOU WHY WE ARE PRECLUDED FROM CONSIDERING THAT PORTION OF YOUR CLAIM PRIOR TO JANUARY 3, 1947.

AS POINTED OUT IN THE CITED SETTLEMENT OF MARCH 11, 1957, AND LETTER OF MAY 27, 1957, THE RIGHT TO RECOMPUTATION OF RETIRED PAY FIRST ACCRUED ON AUGUST 10, 1946, THE DATE OF THE ACT (60 STAT. 993) AUTHORIZING SUCH RIGHT. THE CLAIM DID NOT ARISE INCIDENT TO YOUR HUSBAND'S DEATH ON AUGUST 25, 1956, AS YOU SEEM TO BELIEVE. RATHER, HE COULD HAVE FILED A CLAIM FOR SUCH PAY BEFORE THE DATE OF HIS DEATH. IT IS UNFORTUNATE THAT YOUR ORIGINAL CLAIM, WHICH YOU SAY WAS FILED IN THE DEPARTMENT OF THE NAVY IN SEPTEMBER 1956, WAS RETURNED TO YOU BECAUSE IT WAS ON THE WRONG FORM; HOWEVER, THE FILING OF SUCH CLAIM IN THE ADMINISTRATIVE OFFICE DOES NOT MEET THE REQUIREMENTS OF THE STATUTE. THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, EXPRESSLY REQUIRES THAT CLAIMS BE FILED IN THE GENERAL ACCOUNTING OFFICE AND, WITH EXCEPTIONS NOT HERE MATERIAL, BARS FURTHER CONSIDERATION OF ANY CLAIM NOT RECEIVED HERE WITHIN A TEN-YEAR PERIOD. COMP. GEN. 267. THE LAW DOES NOT GRANT US THE RIGHT TO MAKE AN EXCEPTION IN ANY TYPE OF CASE.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM WITH RESPECT TO THE PERIOD PRIOR TO JANUARY 3, 1947, WAS CORRECT AND MUST BE SUSTAINED.