B-135938, DEC 4, 1974

B-135938: Dec 4, 1974

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IS DENIED SINCE THE CLAIM WAS FIRST RECEIVED IN GAO IN MARCH 1973. 31 U.S.C. 71A (1970) CLAIMS NOT RECEIVED WITHIN 10 YEARS ARE BARRED. 2. SINCE COPY OF CANCELLED CHECK IS NOT EVIDENCE THAT IT WAS DRAWN IN PAYMENT FOR THE BOOKS COVERED BY THE BOOK RETURN FORM. RETIRED: THIS ACTION IS IN RESPONSE TO A NOVEMBER 15. THE RECORD INDICATES THAT MAJOR HACKER WAS INVOLVED IN 1951 IN THE DEACTIVATION OF THE PUBLIC INFORMATION OFFICE AT THE AIR FORCE FINANCE CENTER. DURING THAT PERIOD IT WAS DISCOVERED THAT TWO BOOKS WHICH WERE CHARGED TO HIM COULD NOT BE LOCATED. THAT CLAIM WAS FORWARDED TO THE TRANSPORTATION AND CLAIMS DIVISION WHERE IT WAS RECEIVED ON MARCH 22. MAJOR HACKER WAS INFORMED THAT HIS CLAIM WAS BARRED AS IT WAS NOT RECEIVED WITHIN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUED.

B-135938, DEC 4, 1974

1. CLAIM OF RETIRED AIR FORCE OFFICER FOR REFUND OF THE AMOUNT HE PAID IN FEBRUARY 1952 FOR TWO GOVERNMENT BOOKS CHARGED TO HIM AND APPARENTLY NOT RETURNED, IS DENIED SINCE THE CLAIM WAS FIRST RECEIVED IN GAO IN MARCH 1973, AND UNDER THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A (1970) CLAIMS NOT RECEIVED WITHIN 10 YEARS ARE BARRED. 2. RETIRED AIR FORCE OFFICER SEEKING REFUND OF THE AMOUNT HE PAID IN FEBRUARY 1952 FOR TWO GOVERNMENT BOOKS CHARGED TO HIM AND APPARENTLY NOT RETURNED, HAS NOT MET BURDEN OF PRODUCING CLEAR AND SATISFACTORY EVIDENCE THAT HE RETURNED THE BOOKS PAID FOR, SINCE COPY OF CANCELLED CHECK IS NOT EVIDENCE THAT IT WAS DRAWN IN PAYMENT FOR THE BOOKS COVERED BY THE BOOK RETURN FORM.

CLAIM FOR AMOUNT PAID FOR MISSING GOVERNMENT PROPERTY - MAJOR JAMES A. HACKER, USAF, RETIRED:

THIS ACTION IS IN RESPONSE TO A NOVEMBER 15, 1973 LETTER FROM MAJOR JAMES A. HACKER, USAF, RETIRED, REQUESTING RECONSIDERATION OF A SETTLEMENT BY THE TRANSPORTATION AND CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, DATED NOVEMBER 7, 1973, WHICH DISALLOWED HIS CLAIM FOR A REFUND OF $9.98 PAID TO THE GOVERNMENT, FOR TWO BOOKS ALLEGEDLY LOST BY HIM.

THE RECORD INDICATES THAT MAJOR HACKER WAS INVOLVED IN 1951 IN THE DEACTIVATION OF THE PUBLIC INFORMATION OFFICE AT THE AIR FORCE FINANCE CENTER, DENVER, COLORADO. DURING THAT PERIOD IT WAS DISCOVERED THAT TWO BOOKS WHICH WERE CHARGED TO HIM COULD NOT BE LOCATED. MAJOR HACKER, BY PERSONAL CHECK DATED FEBRUARY 12, 1952, PAID THE GOVERNMENT $9.98 FOR THE BOOKS.

BY LETTER DATED FEBRUARY 27, 1973, MAJOR HACKER SOUGHT REIMBURSEMENT FROM THE AIR FORCE ACCOUNTING AND FINANCE CENTER AND HE ENCLOSED PHOTOSTATIC COPIES OF THE CANCELLED CHECK AND THE TURN-IN SLIP FOR ONE BOOK, BARLETT'S FAMILIAR QUOTATIONS, DATED SEPTEMBER 7, 1951. THAT CLAIM WAS FORWARDED TO THE TRANSPORTATION AND CLAIMS DIVISION WHERE IT WAS RECEIVED ON MARCH 22, 1973. BY LETTER OF APRIL 18, 1973, MAJOR HACKER WAS INFORMED THAT HIS CLAIM WAS BARRED AS IT WAS NOT RECEIVED WITHIN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUED. HOWEVER, BY LETTER DATED AUGUST 9, 1973, MAJOR HACKER WAS INFORMED THAT SINCE HE WAS NOT RETIRED FROM THE AIR FORCE UNITL APRIL 1964, AND ACTIVE MILITARY SERVICE MAY NOT BE INCLUDED IN THE BARRING PERIOD, HIS CLAIM WOULD BE GIVEN FURTHER CONSIDERATION UPON RECEIPT OF OFFICIAL INDICATION OF THE BOOK TITLES AND THE VALUE OF EACH BOOK.

IN HIS LETTER OF SEPTEMBER 5, 1973, MAJOR HACKER REFERRED TO THE TURN IN SLIP FOR BARTLETT'S FAMILIAR QUOTATIONS, WHICH HE INDICATED WAS VALUED AT $6.30 FOR THE 1951 EDITION, BUT IN THE ABSENCE OF A SIMILAR SLIP FOR THE OTHER BOOK HE REQUESTED PAYMENT FOR THIS AMOUNT ONLY. ON NOVEMBER 7, 1973, THE CLAIM WAS DENIED ON THE BASIS THAT THERE WAS NO EVIDENCE TO ESTABLISH THAT THE BOOKS FOR WHICH MAJOR HACKER HAD PAID WERE RETURNED.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. SEC. 71A (1970), PROVIDES IN PERTINENT PART THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE) MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUES, OR IT IS FOREVER BARRED. HOWEVER, THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AS AMENDED, 50 U.S.C. APP. SEC. 525 (1970), EXCLUDES THE PERIOD OF ACTIVE MILITARY SERVICE IN COMPUTING ANY PERIOD OF LIMITATIONS PROVIDED BY THE LAW FOR FILING CLAIMS AGAINST THE GOVERNMENT. DUE TO A MISUNDERSTANDING THIS OFFICE BELIEVED THAT MAJOR HACKER HAD SERVED ON ACTIVE DUTY UNTIL 1964 AND THEREFORE THE SUBSTANCE OF THIS CLAIM WAS CONSIDERED. IT NOW APPEARS, HOWEVER, THAT MAJOR HACKER LAST SERVED ON ACTIVE DUTY IN 1953 ALTHOUGH HE WAS NOT RETIRED UNTIL 1964. UNDER THOSE FACTS THE ORIGINAL CLAIMS SETTLEMENT IN THE CASE BARRING THE CLAIM WAS CORRECT, SINCE NEARLY 20 YEARS ELAPSED FROM OCTOBER 1953 UNTIL THIS CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 22, 1973.

IN VIEW OF THE PRIOR ACTIONS TAKEN WITH RESPECT TO THIS CLAIM WE BELIEVE IT APPROPRIATE TO MENTION THAT THE CLAIM ALSO WOULD BE FOR DENIAL ON THE GROUND OF INSUFFICIENT EVIDENCE. MAJOR HACKER HAS PROVIDED PHOTOSTATIC COPIES OF HIS CANCELLED CHECK AND A TURN-IN SLIP FOR ONE BOOK AND HAS WAIVED HIS CLAIM TO REIMBURSEMENT FOR HIS PAYMENT FOR THE SECOND BOOK. HOWEVER, HE HAS NOT MET THE BURDEN OF FURNISHING CLEAR AND SATISFACTORY EVIDENCE OF HIS CLAIM AS THE COPY OF THE CANCELLED CHECK DOES NOT INDICATE WHICH BOOKS THE CHECK COVERS. THE COPY OF THE TURN-IN SLIP SUBMITTED DOES INDICATE THAT A COPY OF BARTLETT'S FAMILIAR QUOTATIONS WAS TURNED IN, IN SEPTEMBER 1951, BUT THERE IS NO EVIDENCE THAT THE CHECK OF FEBRUARY 12, 1952, INCLUDED PAYMENT FOR THIS BOOK. THUS, THE RECORD DOES NOT ESTABLISH BY SATISFACTORY EVIDENCE THE LEGAL LIABILITY OF THE UNITED STATES FOR THE PAYMENT OF THIS CLAIM. 31 COMP. GEN. 340 (1952). SEE CHARLES V. UNITED STATES, 19 CT. CL. 316 (1884); LONGWILL V. UNITED STATES, 17 CT. CL. 288 (1881).

HOWEVER, AS INDICATED ABOVE THE CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, SUPRA, AND MAY NOT PROPERLY BE CONSIDERED FOR PAYMENT ON THE MERITS.