B-142846, MAY 31, 1960

B-142846: May 31, 1960

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MARIANO: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6. THE RECORDS SHOW THAT YOUR CLAIM WAS INITIALLY MADE BY LETTER DATED OCTOBER 13. THAT CLAIM WAS FORWARDED BY THE FINANCE CENTER AND IT WAS RECEIVED HERE ON OCTOBER 29. SINCE A PERIOD OF MORE THAN TEN YEARS HAD ELAPSED SINCE THE ACCRUAL OF YOUR CLAIM IT WAS RETURNED TO YOU WITH A COPY OF THE ACT OF OCTOBER 9. YOU REQUESTED RECONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE FOR THE REASON THAT YOU WERE NOT AWARE OF THE BENEFITS DERIVED FROM YOUR SERVICES AND HAD YOU KNOWN OF THE PRIVILEGES GRANTED TO SERVICEMEN OF THE UNITED STATES YOU WOULD HAVE INITIATED AN EARLIER CLAIM. YOU WERE INFORMED BY OFFICE LETTER DATED FEBRUARY 4. THAT THE FACT YOU WERE NOT ACQUAINTED WITH THE GOVERNING LAW CONSTITUTES NO LEGAL BASIS FOR THE FURTHER CONSIDERATION OF YOUR CLAIM AND.

B-142846, MAY 31, 1960

TO MR. ESTEBAN O. MARIANO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1960, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR TERMINAL LEAVE PAY UPON SEPARATION FROM SERVICE IN THE PHILIPPINE SCOUTS, UNITED STATES ARMY, ON FEBRUARY 23, 1949.

THE RECORDS SHOW THAT YOUR CLAIM WAS INITIALLY MADE BY LETTER DATED OCTOBER 13, 1959, ADDRESSED TO THE COMMANDING OFFICER, U.S. ARMY FINANCE CENTER, FORT BENJAMIN HARRISON, INDIANAPOLIS, INDIANA. THAT CLAIM WAS FORWARDED BY THE FINANCE CENTER AND IT WAS RECEIVED HERE ON OCTOBER 29, 1959. SINCE A PERIOD OF MORE THAN TEN YEARS HAD ELAPSED SINCE THE ACCRUAL OF YOUR CLAIM IT WAS RETURNED TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH, AS CODIFIED IN 31 U.S.C. 71A, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * 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, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"/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 ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

BY LETTER DATED JANUARY 20, 1960, YOU REQUESTED RECONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE FOR THE REASON THAT YOU WERE NOT AWARE OF THE BENEFITS DERIVED FROM YOUR SERVICES AND HAD YOU KNOWN OF THE PRIVILEGES GRANTED TO SERVICEMEN OF THE UNITED STATES YOU WOULD HAVE INITIATED AN EARLIER CLAIM. IN RESPONSE, YOU WERE INFORMED BY OFFICE LETTER DATED FEBRUARY 4, 1960, AMONG OTHER THINGS, THAT THE FACT YOU WERE NOT ACQUAINTED WITH THE GOVERNING LAW CONSTITUTES NO LEGAL BASIS FOR THE FURTHER CONSIDERATION OF YOUR CLAIM AND, ALSO, THAT IT IS A WELL- ESTABLISHED RULE THAT EVERYONE IS CHARGEABLE WITH NOTICE OF PUBLIC LAWS.

IN YOUR LETTER OF APRIL 6, 1960, YOU REQUEST THAT YOUR CLAIM BE RECONSIDERED UNDER THE PROVISIONS OF SECTION 6 (B) OF PUBLIC LAW 770, 84TH CONGRESS. PUBLIC LAW 770, APPROVED JULY 24, 1956, 70 STAT. 625, READS AS FOLLOWS:

"* * * THAT THE LAST SENTENCE OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947 (37 U.S.C. 33 (C) (, IS AMENDED TO READ AS FOLLOWS: ,SETTLEMENT AND COMPENSATION IN ACCORDANCE WITH THIS SUBSECTION SHALL, IN THE CASE OF A MEMBER OR FORMER MEMBER OF THE ARMED FORCES WHO DIES AFTER RETIREMENT OR DISCHARGE AND WITHOUT HAVING RECEIVED THAT COMPENSATION, BE MADE TO THE SURVIVORS OF THAT MEMBER OR FORMER MEMBER IN THE MANNER PRESCRIBED IN SECTION 6 (B)OF THIS ACT.'

"SEC. 2. THIS ACT TAKES EFFECT AUGUST 9, 1946. NO SETTLEMENT AND COMPENSATION MAY BE MADE UNDER THIS ACT IN THE CASE OF A MEMBER OR FORMER MEMBER WHO DIED BEFORE THE DATE OF ENACTMENT OF THIS ACT UNLESS APPLICATION IS MADE TO THE SECRETARY CONCERNED WITHIN TWO YEARS AFTER THE DATE OF ENACTMENT OF THIS ACT.

"SEC. 3. ANY SETTLEMENT AND COMPENSATION MADE UNDER THIS ACT SHALL BE MADE FROM CURRENT APPLICABLE APPROPRIATIONS.'

THAT LAW WHICH, AS YOU CORRECTLY STATE, IS RETROACTIVE TO AUGUST 9, 1946, IS APPLICABLE ONLY IN CASES WHERE THE SERVICE MEMBER OR FORMER SERVICE MEMBER DIES AFTER RETIREMENT OR DISCHARGE WITHOUT HAVING RECEIVED THE COMPENSATION FOR LEAVE TO WHICH HE WAS ENTITLED, THE ACT PROVIDING THAT IN SUCH CASES PAYMENT MAY BE MADE TO HIS SURVIVORS. THEREFORE, IT IS NOT FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM.

SINCE UNDER THE LAW WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM, THE ACTION OF OUR OFFICE IN RETURNING THE CLAIM WITH A COPY OF THE ACT OF OCTOBER 9, 1940, AS AUTHORIZED IN SECTION 2 THEREOF, WAS PROPER AND UPON REVIEW IT IS SUSTAINED.