B-135691, APR. 15, 1958

B-135691, APR. 15, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MARCH 27, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT/--- COMMITTEE SUBMISSION NO. N -331, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE- - REQUESTING DECISION AS TO THE PROPER APPLICATION OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 11061, TO THOSE CASES WHERE DECISIONS OF OUR OFFICE OR THE COURTS CHANGE THE PREVIOUS CONSTRUCTION OF A STATUTE SO THAT THE PERSON CONCERNED BECOMES ENTITLED TO INCREASED RETIRED OR RETAINER PAY FOR A RETROACTIVE PERIOD OF MORE THAN TEN YEARS.

THE ACT OF OCTOBER 9, 1940, PROVIDES THAT EVERY CLAIM OR DEMAND (WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER APPLICABLE PROVISIONS OF LAW,"SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

TWO EXAMPLES OF THE TYPE OF CASES INVOLVED ARE CITED, ONE OF WHICH IS THAT OF CHIEF WARRANT OFFICER LAWRENCE C. MAGILL, USN, RETIRED. APPEARS THAT HE WAS PAID RETAINER PAY AT THE RATE OF ONE-THIRD OF HIS BASE PAY PLUS LONGEVITY ON AND AFTER HE WAS RELEASED FROM A TOUR OF ACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE ON OCTOBER 15, 1945, UNDER THE CONSTRUCTION OF APPLICABLE STATUTES ADOPTED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AT THAT TIME. SEE 26 COMP. GEN. 805. IN THE CASE OF SANDERS V. UNITED STATES, 120 C.CLS. 501, THE COURT HELD THAT, UNDER FACTS SIMILAR TO THOSE HERE INVOLVED, A FLEET RESERVIST IS ENTITLED TO HAVE HIS RETAINER PAY COMPUTED AT THE RATE OF ONE-HALF OF HIS BASE AND LONGEVITY PAY. YOU WERE ADVISED IN DECISION OF OCTOBER 3, 1952, B-109748, 32 COMP. GEN. 159, THAT SUCH RULE WOULD BE FOLLOWED HERE IN THE SETTLEMENT OF CLAIMS. APPARENTLY, MR. MAGILL DID NOT LEARN OF HIS RIGHT TO INCREASED RETAINER PAY UNTIL SEPTEMBER 1957. THAT PART OF HIS CLAIM FOR SUCH PAY, RECEIVED HERE ON SEPTEMBER 26, 1957, WHICH INVOLVED THE PERIOD OCTOBER 16, 1945, TO SEPTEMBER 25, 1947, WAS DISALLOWED BY SETTLEMENT DATED JANUARY 17, 1958, UNDER THE ACT OF OCTOBER 9, 1940.

IN CONSTRUING THE STATUTE OF LIMITATIONS APPLICABLE TO THE COURT OF CLAIMS (28 U.S.C. 2501) WHICH PROVIDES THAT EVERY CLAIM OF WHICH THE COURT OF CLAIMS HAS JURISDICTION "SHALL BE BARRED UNLESS THE PETITION THEREON IS FILED * * * WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES," THE COURT HELD THAT AN ERRONEOUS RULING OF THE ACCOUNTING OFFICERS OF THE UNITED STATES IN ONE CASE WHEREBY A CLAIMANT IS MISLED AS TO HIS RIGHTS IN ANOTHER, DOES NOT SUSPEND THE RUNNING OF THE STATUTE. LISLE V. UNITED STATES, 23 C.CLS. 270.IT ALSO HAS BEEN HELD THAT GENERALLY, LACK OF KNOWLEDGE OF THE EXISTENCE OF A COURSE OF ACTION OR OF FACTS WHICH CONSTITUTE THE CAUSE, WILL NOT POSTPONE THE OPERATION OF THE STATUTE OF LIMITATIONS. THOMAS V. UNITED STATES, 125 C.CLS. 76, AND ART CENTER SCHOOL V. UNITED STATES, 136 C.CLS. 218. IN VIEW OF THE SPECIFIC PROVISION THAT ,EVERY CLAIM * * * SHALL BE FOREVER BARRED" UNLESS RECEIVED IN OUR OFFICE WITHIN TEN FULL YEARS AFTER THE DATE OF ITS ACCRUAL, WE ARE WITHOUT AUTHORITY TO ALLOW A CLAIM WHICH IS RECEIVED HERE MORE THAN TEN YEARS AFTER A RIGHT THERETO FIRST ACCRUED. A CHANGE IN THE CONSTRUCTION OF AN APPLICABLE STATUTE DOES NOT AFFECT THE RUNNING OF THE TEN-YEAR LIMITATION PERIOD IN ANY WAY. MR. MAGILL'S CLAIM WAS A CONTINUING ONE AND COULD HAVE BEEN FILED BY HIM AT ANY TIME AFTER IT FIRST ACCRUED. A DELAY UNTIL THE COURT OF CLAIMS AND OUR OFFICE RECOGNIZED THE VALIDITY OF SUCH CLAIMS DOES NOT AFFECT THE RUNNING OF THE ACT OF OCTOBER 9, 1940, AND IT IS NOTED ALSO THAT HE DELAYED AN ADDITIONAL FIVE YEARS AFTER OUR DECISION TO THE EFFECT THAT WE WOULD SETTLE CLAIMS ON THE BASIS OF THE SANDERS CASE. THE PRIMARY RESPONSIBILITY FOR FILING A CLAIM RESTS UPON THE CLAIMANT AND FAILURE ON THE PART OF THE ADMINISTRATIVE OFFICE TO ADVISE HIM THAT A CLAIM EXISTS DOES NOT TOLL THE RUNNING OF THE STATUTES. HENCE, THAT PORTION OF HIS CLAIM WHICH ACCRUED MORE THAN TEN YEARS BEFORE SEPTEMBER 26, 1957, THE DATE OF HIS CLAIM WAS RECEIVED, IS BARRED BY THE ACT OF OCTOBER 9, 1940. GORDON V. UNITED STATES, 134 C.CLS. 840. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO H.R. 11259, 85TH CONGRESS, WHICH WOULD REMOVE THE BAR TO PAYMENT OF CLAIMS OF THIS TYPE IMPOSED BY THE ACT OF OCTOBER 9, 1940.

THE SECOND EXAMPLE TO WHICH THE ASSISTANT SECRETARY REFERS IS THE CLAIM OF COMMANDER ASEL B. KERR, USN, RETIRED, FOR INCREASED RETIRED PAY (FROM 67 1/2 PERCENT TO 75 PERCENT OF HIS ACTIVE-DUTY PAY, UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367) ON AND AFTER THE DATE OF HIS RETIREMENT ON OCTOBER 1, 1946. SUCH CLAIM WAS BASED ON THE CASE OF TRAVIS V. UNITED STATES, 137 C.CLS. 148, WHICH OVERRULED GILMARTIN V. UNITED STATES, 124 C.CLS. 434, AND HELD THAT MIDSHIPMEN SERVICE PRIOR TO NOVEMBER 12, 1918, WAS SERVICE AS A MEMBER OF THE MILITARY FORCES OF THE UNITED STATES WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THE TRAVIS DECISION IS BEING FOLLOWED BY US IN THE SETTLEMENT OF CLAIMS. 37 COMP. GEN. 31. WHILE COMMANDER KERR'S MIDSHIPMAN SERVICE PRIOR TO NOVEMBER 12, 1918, BRINGS HIS CASE WITHIN THE PURVIEW OF THE TRAVIS CASE, HIS CLAIM WAS NOT RECEIVED HERE UNTIL SEPTEMBER 27, 1957. SUCH CLAIM FOR INCREASED RETIRED PAY WAS DISALLOWED FOR THE PERIOD PRIOR TO SEPTEMBER 27, 1947, UNDER THE ACT OF OCTOBER 9, 1940, BY SETTLEMENT DATED DECEMBER 3, 1957. WHILE IT NOW APPEARS THAT COMMANDER KERR FILED CLAIM FOR SUCH INCREASED RETIRED PAY WITH THE DEPARTMENT OF THE NAVY IN SEPTEMBER AND NOVEMBER 1946, NO ADDITIONAL RETIRED PAY MAY BE ALLOWED ON THE BASIS OF SUCH INFORMATION, SINCE THE ACT OF OCTOBER 9, 1940, BARS ALL CLAIMS WHICH ARE NOT "RECEIVED IN SAID OFFICE (GENERAL ACCOUNTING OFFICE) WITHIN TEN FULL YEARS" AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE FILING OF A CLAIM WITH ANY OTHER AGENCY OR DEPARTMENT OF THE GOVERNMENT DOES NOT TOLL THE STATUTE. SEE B-84056, MARCH 23, 1949, AND B-114130, APRIL 2, 1953.

A COPY OF THIS DECISION IS BEING FORWARDED TO HONORABLE THOMAS H. KUCHEL, UNITED STATES SENATE, WHO, THE ASSISTANT SECRETARY ADVISED US, HAS EXPRESSED AN INTEREST IN MR. MAGILL'S CLAIM.