B-142265, MAR. 25, 1960

B-142265: Mar 25, 1960

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DE PRAGO: REFERENCE IS MADE TO YOUR COMMUNICATION DATED OCTOBER 14. PRAGO WHO WAS DISCHARGED AS A PHILIPPINE SCOUT ON MAY 5. A CHECK FOR THE AMOUNT CLAIMED WAS ISSUED IN THE NAME OF THE DECEDENT AND BY LETTER DATED AUGUST 9. SINCE THE CHECK SHOULD NOT HAVE BEEN ISSUED THE MATTER WAS REFERRED HERE. WITH THE UNITED STATES ARMY WAS IMPROPER SINCE MORE THAN 10 YEARS HAD ELAPSED SINCE YOUR HUSBAND'S DISCHARGE FROM THE ARMY ON MAY 5. YOU WERE FURTHER ADVISED THAT YOUR CLAIM WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9. A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'. WE AGAIN ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN 10 FULL YEARS HAD ELAPSED BETWEEN THE DATE THE CLAIM FIRST ACCRUED AND THE DATE IT WAS FIRST RECEIVED IN THIS OFFICE.

B-142265, MAR. 25, 1960

TO MRS. EUGENIA MARTIN VDA. DE PRAGO:

REFERENCE IS MADE TO YOUR COMMUNICATION DATED OCTOBER 14, 1959, FORWARDED BY THE DEPARTMENT OF THE ARMY AND RECEIVED HERE ON FEBRUARY 18, 1960, IN EFFECT REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54STAT. 1061, BARRING YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE IN THE CASE OF YOUR LATE HUSBAND, REGINO C. PRAGO WHO WAS DISCHARGED AS A PHILIPPINE SCOUT ON MAY 5, 1947, AND WHO DIED ON AUGUST 20, 1956.

THE RECORD SHOWS THAT BY LETTER DATED SEPTEMBER 6, 1957, ADDRESSED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOU PRESENTED A CLAIM FOR ADDITIONAL MUSTERING-OUT PAY IN THE AMOUNT OF $50 ON ACCOUNT OF THE SERVICE OF YOUR LATE HUSBAND IN THE ARMY. ON NOVEMBER 5, 1957, A CHECK FOR THE AMOUNT CLAIMED WAS ISSUED IN THE NAME OF THE DECEDENT AND BY LETTER DATED AUGUST 9, 1958, YOU RETURNED THE CHECK WITH THE REQUEST THAT IT BE MADE PAYABLE TO YOU. SINCE THE CHECK SHOULD NOT HAVE BEEN ISSUED THE MATTER WAS REFERRED HERE, BEING FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ADVISED YOU THAT THE ISSUANCE BY THE DEPARTMENT OF THE ARMY OF SUCH CHECK DATED NOVEMBER 5, 1957, ON THE BASIS OF THE CLAIM FILED BY YOU BY LETTER OF SEPTEMBER 6, 1957, WITH THE UNITED STATES ARMY WAS IMPROPER SINCE MORE THAN 10 YEARS HAD ELAPSED SINCE YOUR HUSBAND'S DISCHARGE FROM THE ARMY ON MAY 5, 1947. YOU WERE FURTHER ADVISED THAT YOUR CLAIM WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR 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.'

BY LETTER DATED APRIL 2, 1959, IN RESPONSE TO YOUR LETTER OF FEBRUARY 28, 1959, WE AGAIN ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN 10 FULL YEARS HAD ELAPSED BETWEEN THE DATE THE CLAIM FIRST ACCRUED AND THE DATE IT WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT COMMUNICATION YOU REPEAT YOUR CLAIM FOR THE MUSTERING-OUT PAY BELIEVED DUE YOUR LATE HUSBAND, APPARENTLY WITHOUT REGARD TO THE 10- YEAR STATUTE OF LIMITATIONS OF WHICH YOU WERE ADVISED IN OUR PRIOR COMMUNICATIONS. EXCEPT IN THE CASE OF CERTAIN MEMBERS OF THE MILITARY AND NAVAL FORCES, THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN 10 FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED. ANY RIGHT TO THE ADDITIONAL MUSTERING- OUT PAY CLAIMED FIRST ACCRUED ON MAY 5, 1947, THE DATE OF YOUR LATE HUSBAND'S DISCHARGE AND IT DOES NOT APPEAR THAT HE WAS A MEMBER OF THE MILITARY OR NAVAL FORCES AFTER THAT DATE. THE 10-YEAR PERIOD IN HIS CASE EXPIRED ON MAY 4, 1957. THERE IS NO RECORD OF ANY CLAIM BY EITHER MR. PRAGO OR YOU BEING 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 WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267. THE FACT THAT THE DEPARTMENT OF THE ARMY MAY HAVE ERRONEOUSLY ISSUED A CHECK TO YOUR LATE HUSBAND FOR THE AMOUNT INVOLVED DOES NOT OPERATE TO ALTER THE LIMITATION IMPOSED UPON OUR OFFICE BY LAW.

ACCORDINGLY, THE CLAIM INVOLVED NOT HAVING BEEN RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE IT ACCRUED, WE TRUST THAT YOU WILL UNDERSTAND THAT IT IS PRECLUDED FROM OUR CONSIDERATION BY LAW AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.