B-139278, MAR. 18, 1963

B-139278: Mar 18, 1963

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LEWIS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 25. THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT CONSIDERATION THEREOF IS BARRED BY THE OPERATION OF THE ACT OF OCTOBER 9. A COPY OF WHICH WAS FURNISHED. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. "/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE. YOU AGAIN WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE FROM ACTIVE SERVICE ON AUGUST 14. THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

B-139278, MAR. 18, 1963

TO MR. ELBERT H. LEWIS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1963, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, BARRING YOUR CLAIM FOR REFUND OF ERRONEOUS DEDUCTIONS FOR FAMILY ALLOWANCE DURING THE PERIOD APRIL 1, 1946, TO FEBRUARY 28, 1947, INCIDENT TO YOUR SERVICE IN THE ARMY OF THE UNITED STATES.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 25, 1958, AND ON SEPTEMBER 10, 1958, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT CONSIDERATION THEREOF IS BARRED BY THE OPERATION OF THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS FURNISHED. THAT ACT PROVIDES AS FOLLOWS (31 U.S.C. 71A):

"/1) 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 SECTIONS 71 AND 236 OF THIS TITLE 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.

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH SECTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

BY LETTER DATED NOVEMBER 28, 1958, YOU AGAIN WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE FROM ACTIVE SERVICE ON AUGUST 14, 1947, AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU REPEAT THAT YOUR CLAIM WAS FILED WITH THE ARMY FINANCE CENTER IN OCTOBER 1947. EXCEPT IN CASES OF CERTAIN MEMBERS OF THE MILITARY AND NAVAL FORCES, AS SET OUT ABOVE, THE ACT OF OCTOBER 9, 1940, EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE FACT THAT YOU FILED CLAIM WITH THE ARMY FINANCE CENTER WITHIN THE TEN-YEAR PERIOD DOES NOT SATISFY THE REQUIREMENTS OF THE ACT, SINCE IT PROVIDES THAT SUCH CLAIMS MUST BE RECEIVED IN THIS OFFICE WITHIN THE REQUIRED PERIOD. ANY RIGHT YOU HAD TO REFUND OF THE ERRONEOUS DEDUCTIONS FOR FAMILY ALLOWANCE ACCRUED TO YOU NOT LATER THAN AUGUST 14, 1947, THE DATE OF YOUR DISCHARGE, AND IT DOES NOT APPEAR THAT YOU WERE A MEMBER OF THE MILITARY OR NAVAL FORCES AFTER THAT DATE. THE TEN-YEAR PERIOD IN YOUR CASE EXPIRED IN AUGUST 1957. THERE IS NO RECORD OF ANY CLAIM FROM YOU HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE.

THE LIMITATION PRESCRIBED BY THE STATUTE UPON CONSIDERATION OF CLAIMS BY OUR OFFICE IS NOT A MERE STATUTE OF LIMITATIONS 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 154 AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME BE GRANTED WITHIN WHICH CLAIMS MAY BE FILED.

ACCORDINGLY, SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN TEN FULL YEARS AFTER ACCRUAL, WE TRUST THAT YOU WILL UNDERSTAND THAT ITS CONSIDERATION IS PRECLUDED BY LAW AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER.