B-143472, AUG. 23, 1960

B-143472: Aug 23, 1960

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MASON: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 8. YOUR CLAIM WAS THE SUBJECT OF DECISION TO YOU OF JULY 22. YOUR CLAIM WAS NOT CONSIDERED BY OUR CLAIMS DIVISION BECAUSE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MARCH 15. WHICH WAS MORE THAN TEN FULL YEARS AFTER THE DATE IT FIRST ACCRUED. THAT ACTION WAS IN ACCORDANCE WITH THE ACT OF OCTOBER 9. YOU STATE THAT YOUR PAY RECORDS SHOULD HAVE BEEN AUDITED BY THE ARMY BEFORE THE TEN-YEAR PERIOD HAD PASSED. WE ARE WITHOUT AUTHORITY TO CONSIDER A CLAIM UNLESS SUCH CLAIM IS FILED IN OUR OFFICE WITHIN THE TEN-YEAR LIMITATION PERIOD. IF A CLAIM IS SUBMITTED TO ANOTHER GOVERNMENT AGENCY AND IS NOT PAID IN FULL. THE FACT THAT HE IS UNAWARE THAT HE HAS NOT BEEN PAID THE FULL AMOUNT TO WHICH HE IS ENTITLED IS IMMATERIAL SINCE THE STATUTE MAKES NO EXCEPTIONS IN SUCH CASES.

B-143472, AUG. 23, 1960

TO MR. WILLIAM W. MASON:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 8, 1960, AND ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY AS A RETIRED MEMBER OF THE ARMY FOR THE PERIOD PRIOR TO MARCH 15, 1950. YOUR CLAIM WAS THE SUBJECT OF DECISION TO YOU OF JULY 22, 1960, B-143472.

YOUR CLAIM WAS NOT CONSIDERED BY OUR CLAIMS DIVISION BECAUSE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MARCH 15, 1960, WHICH WAS MORE THAN TEN FULL YEARS AFTER THE DATE IT FIRST ACCRUED. THAT ACTION WAS IN ACCORDANCE WITH THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, QUOTED IN THE DECISION OF JULY 22, 1960. YOU STATE THAT YOU DID NOT KNOW THAT YOU HAD NOT BEEN PAID IN FULL UNTIL YOU RECEIVED A LETTER FROM THE DEPARTMENT OF THE ARMY IN MARCH 1960 TELLING YOU THAT YOU HAD BEEN UNDERPAID FOR THE PERIOD INVOLVED. ALSO, YOU STATE THAT YOUR PAY RECORDS SHOULD HAVE BEEN AUDITED BY THE ARMY BEFORE THE TEN-YEAR PERIOD HAD PASSED, IN VIEW OF WHICH YOU BELIEVE THAT CONSIDERATION NOW SHOULD BE GIVEN YOUR CLAIM BY OUR OFFICE.

THE ACT OF OCTOBER 9, 1940, PROVIDES THAT "EVERY" CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE-- WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE--- "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

UNDER THE ABOVE-QUOTED PROVISIONS OF THE STATUTE, WE ARE WITHOUT AUTHORITY TO CONSIDER A CLAIM UNLESS SUCH CLAIM IS FILED IN OUR OFFICE WITHIN THE TEN-YEAR LIMITATION PERIOD. IF A CLAIM IS SUBMITTED TO ANOTHER GOVERNMENT AGENCY AND IS NOT PAID IN FULL, THE PERSON CONCERNED MUST FILE A CLAIM WITH OUR OFFICE WITHIN THE TEN-YEAR PERIOD, FOR THE UNPAID BALANCE, IN ORDER TO AVOID THE BAR OF THE STATUTE. THE FACT THAT HE IS UNAWARE THAT HE HAS NOT BEEN PAID THE FULL AMOUNT TO WHICH HE IS ENTITLED IS IMMATERIAL SINCE THE STATUTE MAKES NO EXCEPTIONS IN SUCH CASES. THE PURPOSE OF THE STATUTE IS TO BAR PAYMENT OF STALE CLAIMS. MOST VALID CLAIMS AGAINST THE GOVERNMENT WHICH WERE NOT SUBMITTED FOR PAYMENT WITH REASONABLE PROMPTNESS INVOLVED SITUATIONS WHERE THE CLAIMANT WAS NOT THEN AWARE THAT THE GOVERNMENT OWED HIM MONEY. THE INTENT OF THE CONGRESS IS CLEAR THAT ALL CLAIMS OF THIS TYPE SHOULD NOT BE PAID UNLESS SUBMITTED TO THIS OFFICE WITHIN THE PRESCRIBED TEN-YEAR PERIOD. IT IS WELL ESTABLISHED THAT THE STATUTORY PERIOD IS NOT TOLLED DURING THE PERIOD A CLAIM IS BEING CONSIDERED BY ANOTHER AGENCY OF THE GOVERNMENT, OR AS A RESULT OF SUCH ADMINISTRATIVE CONSIDERATION. SEE 32 COMP. GEN. 267. COMPARE DECISIONS BY THE U.S. COURT OF CLAIMS IN THE CASES OF TAN V. UNITED STATES, 102 F.SUPP. 552, AND ARRIBAS V. UNITED STATES, 110 F.SUPP. 267.

SINCE YOU STILL APPEAR TO BE OF THE BELIEF THAT YOU WERE UNDERPAID FOR A 29-MONTHS' PERIOD (FEBRUARY 1, 1948, TO JUNE 30, 1950), YOUR ATTENTION IS AGAIN INVITED TO THE FACT THAT YOU WERE PAID AT THE PROPER RATE OF $122.51 PER MONTH FOR THE PERIOD FEBRUARY 1, 1948, TO SEPTEMBER 30, 1949 (2 1/2 PERCENT TIMES 22 TIMES $222.75), WHICH WAS PAYABLE TO A MASTER SERGEANT WITH OVER 21 YEARS' SERVICE UNDER THE PROVISIONS OF LAW WHICH WERE IN EFFECT AT THAT TIME. SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AUTHORIZED LONGEVITY INCREASES "FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS.' THE NUMBER OF YEARS APPLICABLE TO SUCH INCREASES WAS CHANGED EFFECTIVE OCTOBER 1, 1949, UNDER THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802. THE DIVIDING LINE BETWEEN THE RATES WITH WHICH YOU ARE CONCERNED WAS CHANGED FROM 21 YEARS TO OVER 22 YEARS OF SERVICE. HENCE, THE ADDITIONAL LONGEVITY FOR NATIONAL GUARD SERVICE IN 1925 WITH WHICH YOU WERE CREDITED IN 1952 (TOTAL SERVICE INCREASED FROM OVER 21 YEARS TO OVER 22 YEARS) WAS SIGNIFICANT ONLY FOR THE PERIOD COMMENCING OCTOBER 1, 1949. THE RATE OF PAY BASED ON OVER 21 OR OVER 22 YEARS OF SERVICE WAS THE SAME BEFORE THAT DATE. YOU ORIGINALLY WERE PAID RETIRED PAY FOR THE PERIOD COMMENCING ON THAT DATE UNDER METHOD (B) OF SECTION 511 OF THE 1949 ACT COMPUTED ON THE BASIS OF THE PAY OF A MASTER SERGEANT WITH OVER 18 YEARS' SERVICE. YOUR RETIRED PAY WAS RECOMPUTED IN 1952 ON THE BASIS OF OVER 22 YEARS' SERVICE AND THE DEPARTMENT OF THE ARMY PAID YOU THE ADDITIONAL AMOUNT FOUND DUE FOR THE PERIOD JULY 1, 1950, TO DECEMBER 31, 1952. PRESUMABLY, SUCH PAYMENT SHOWED THE PERIOD TO WHICH IT RELATED. APPARENTLY, PAYMENT WAS NOT MADE FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1950, BECAUSE OF THE LAPSED APPROPRIATION PROVISIONS OF LAW WHICH WERE IN EFFECT AT THAT TIME.

UPON THE RECEIPT OF YOUR CLAIM HERE YOU WERE ALLOWED THE ADDITIONAL AMOUNT FOUND DUE ($28.58) FOR THE PERIOD MARCH 15 TO JUNE 30, 1950, A PERIOD NOT BARRED BY THE ACT OF OCTOBER 9, 1940. THUS IT IS CLEAR THAT YOU HAVE BEEN UNDERPAID FOR A PERIOD OF ABOUT 5 1/2, RATHER THAN 29, MONTHS. AS EXPLAINED ABOVE, WE ARE WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM FOR THAT PERIOD.