B-136775, AUG 19, 1958

B-136775: Aug 19, 1958

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MERVIN MCCOY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 28. YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 31. WE HAVE NO RECORD HERE OF ANY PREVIOUS CLAIM FOR TRAVEL PAY IN YOUR CASE. THIS WAS AFTER MORE THAN 10 YEARS HAD ELAPSED SINCE THE CLAIM. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. WAS RETURNED TO YOU ON APRIL 11. YOU INDICATE THAT IT IS YOUR BELIEF THAT. SHOULD HAVE NO APPLICATION IN YOUR CASE. WHEN YOU WERE DISCHARGED. YOU ARE INFORMED THAT THE EXCEPTIONS STATED IN THE ACT DO NOT INCLUDE SUCH A PROVISION. IS NOT A MERE STATUTE OF LIMITATION BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE.

B-136775, AUG 19, 1958

PRECIS-UNAVAILABLE

MR. MERVIN MCCOY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 28, 1958, AND LATER CORRESPONDENCE REGARDING YOUR CLAIM FOR ADDITIONAL TRAVEL ALLOWANCE BELIEVED TO BE DUE YOU AT THE DATE OF YOUR DISCHARGE, MARCH 4, 1943, AS AN ENLISTED MAN, ARMY OF THE UNITED STATES.

YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 31, 1955, AND WE HAVE NO RECORD HERE OF ANY PREVIOUS CLAIM FOR TRAVEL PAY IN YOUR CASE. THIS WAS AFTER MORE THAN 10 YEARS HAD ELAPSED SINCE THE CLAIM, IF ALLOWABLE AT ALL, FIRST ACCRUED.

IN SUCH A CASE 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 YEARS 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."

YOUR CLAIM RECEIVED JANUARY 31, 1955, WAS RETURNED TO YOU ON APRIL 11, 1955, AS REQUIRED BY SECTION 2 OF THE ACT ABOVE QUOTED. IN A LETTER DATED APRIL 25, 1955, OUR CLAIMS DIVISION FULLY EXPLAINED THE MATTER TO YOU. YOUR LETTER OF JUNE 28, 1958, YOU INDICATE THAT IT IS YOUR BELIEF THAT, BECAUSE OF YOUR HOSPITALIZATION FOR A MENTAL DISABILITY AND YOUR DISCHARGE FROM THE ARMY BECAUSE OF THAT AFFLICTION, THE ACT OF OCTOBER 9, 1940, SHOULD HAVE NO APPLICATION IN YOUR CASE. ALSO, YOU SAY, IN ONE OF YOUR EARLIER LETTERS, THAT YOU FILED YOUR CLAIM WITH THE ARMY ON MARCH 4, 1943, WHEN YOU WERE DISCHARGED.

AS TO YOUR CONTENTION THAT MENTAL DISABILITY SHOULD EXCUSE YOU FROM THE APPLICABILITY OF THE STATUTE, YOU ARE INFORMED THAT THE EXCEPTIONS STATED IN THE ACT DO NOT INCLUDE SUCH A PROVISION. FURTHERMORE, THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATION BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F. 2D 184, AND CARPENTER V. UNITED STATES, 56 F. 2D 828. CONSEQUENTLY, EVEN THOUGH ALL OR A PART OF THE DELAY IN FILING A CLAIM MAY HAVE BEEN THE RESULT OF YOUR ALLEGED DISABILITY, OUR OFFICE CAN MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE NOR GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. SEE, ALSO, 25 COMP. GEN. 670 AND 32 ID. 267.

WITH REGARD TO YOUR STATEMENT THAT YOU FILED YOUR CLAIM WITH THE ARMY AT THE TIME OF YOUR DISCHARGE, IT WILL BE OBSERVED FROM A READING OF THE ACT OF OCTOBER 9, 1940, THAT THE ACT REQUIRES CLAIMS TO BE FILED IN THE GENERAL ACCOUNTING OFFICE AND HERE CONSIDERATION OF ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE TEN-YEAR PERIOD. THE FILING OF YOUR CLAIM IN SOME OTHER OFFICE DID NOT MEET THE REQUIREMENTS OF THE STATUTE. 32 COMP. GEN. 267.

ACCORDINGLY, SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN TEN FULL YEARS AFTER IT FIRST ACCRUED, WE MUST ADHERE TO OUR FORMER DISPOSITION OF THE MATTER. FURTHER CORRESPONDENCE, THEREFORE, WILL SERVE NO USEFUL PURPOSE.