B-143174, JUN. 23, 1960

B-143174: Jun 23, 1960

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SORIANO: REFERENCE IS MADE TO YOUR LETTER OF APRIL 25. YOUR CLAIMS WERE FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 21 AND DECEMBER 29. THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIMS WERE PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9. 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. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'. YOU AGAIN WERE ADVISED THAT YOUR CLAIMS WERE BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIMS WERE FIRST RECEIVED IN THIS OFFICE.

B-143174, JUN. 23, 1960

TO MR. CENON P. SORIANO:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1960, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, BARRING YOUR CLAIMS FOR TERMINAL LEAVE PAY AND "DIFFERENTIAL PAY" BELIEVED DUE INCIDENT TO YOUR SERVICE FROM JUNE 17, 1946, TO DATE OF DISCHARGE, APRIL 19, 1949, AS A PHILIPPINE SCOUT.

YOUR CLAIMS WERE FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 21 AND DECEMBER 29, 1959, AND ON JANUARY 29, 1960, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIMS WERE 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 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.'

BY LETTER DATED MARCH 21, 1960, YOU AGAIN WERE ADVISED THAT YOUR CLAIMS WERE BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIMS WERE FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIMS AND REQUEST RECONSIDERATION APPARENTLY WITHOUT REGARD TO THE TEN-YEAR STATUTE OF LIMITATIONS WHICH YOU WERE ADVISED OF IN OUR PRIOR COMMUNICATIONS. YOU HAVE ALSO ENCLOSED PHOTOSTATIC COPIES OF A CLAIM LETTER AND ITS ENVELOPE DATED DECEMBER 5, 1958, WHICH YOU SAY YOU FILED WITH THE FINANCE CENTER, U.S. ARMY. 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 TEN FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED. THE FACT THAT YOU MAY HAVE FILED CLAIMS WITH THE FINANCE CENTER, U.S. ARMY, WITHIN THE TEN-YEAR PERIOD WOULD NOT SATISFY THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940, SINCE IT PROVIDES THAT SUCH CLAIMS MUST BE RECEIVED IN THIS OFFICE WITHIN SUCH PERIOD. ANY RIGHT YOU MAY HAVE HAD TO THE ITEMS CLAIMED ACCRUED TO YOU NOT LATER THAN APRIL 19, 1949, THE DATE OF YOUR DISCHARGE, AND YOU DO NOT APPEAR TO HAVE BEEN A MEMBER OF THE MILITARY OR NAVAL FORCES AFTER THAT DATE. THE TEN-YEAR PERIOD IN YOUR CASE EXPIRED ON APRIL 18, 1959. 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 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. AS STATED BEFORE, THE FACT THAT YOU MAY HAVE FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY WITHIN THE TEN-YEAR PERIOD INVOLVED DOES NOT OPERATE TO ALTER THE LIMITATION IMPOSED UPON OUR OFFICE BY LAW.

ACCORDINGLY, YOUR CLAIMS NOT HAVING BEEN RECEIVED HERE WITHIN TEN FULL YEARS AFTER ACCRUAL, WE TRUST THAT YOU WILL UNDERSTAND THAT THEY ARE PRECLUDED FROM OUR CONSIDERATION BY LAW AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.