B-145580, MAY 15, 1961

B-145580, MAY 15, 1961

TO MR. DOROTEO C. COSICO:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1961, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1178, 1181, BARRING YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR SERVICE FROM NOVEMBER 2, 1941, TO YOUR DISCHARGE IN MAY 1946, AS A MEMBER OF THE PHILIPPINE SCOUTS.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JULY 11, 1960, AND ON JULY 20, 1960, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU 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 (QUOTING FROM 31 U.S.C. 71A) 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 OF AUGUST 29, 1960, YOU REQUESTED RECONSIDERATION OF THE MATTER FOR THE REASON THAT AT THE TIME OF YOUR DISCHARGE YOU DID NOT KNOW YOU WERE ELIGIBLE FOR MUSTERING-OUT PAY AND IT WAS NOT EXPLAINED TO YOU BY YOUR SUPERIOR OFFICERS. ALSO, YOU STATE THAT UPON LEARNING ABOUT MUSTERING-OUT PAY FROM YOUR COMRADES YOU PROMPTLY FILED YOUR CLAIM. RESPONSE YOU WERE ADVISED BY OFFICE LETTER DATED SEPTEMBER 19, 1960, IN SUBSTANCE THAT THE ACT OF OCTOBER 9, 1940, CONTAINS NO EXCEPTION WHICH WOULD PERMIT THE GENERAL ACCOUNTING OFFICE TO CONSIDER CLAIMS OF INDIVIDUALS WHO BELATEDLY LEARN OF THEIR RIGHTS.

IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIM AND SUPPORTING REASON AND REQUEST RECONSIDERATION APPARENTLY WITHOUT REGARD TO THE TEN-YEAR STATUTE OF LIMITATIONS WHICH YOU WERE ADVISED OF IN OUR PRIOR COMMUNICATIONS. CASES SUCH AS YOURS THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF A CLAIM FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. ANY RIGHT YOU MAY HAVE HAD TO MUSTERING-OUT PAY FOR THE SERVICE INVOLVED IN YOUR CLAIM ACCRUED TO YOU NOT LATER THAN THE DATE OF YOUR DISCHARGE IN MAY 1946. THE 10-YEAR PERIOD IN YOUR CASE EXPIRED IN MAY 1956, AND THERE IS NO RECORD OF ANY CLAIM BY YOU BEING RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT TIME.

THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE IS NOT A MERE STATUTE OF LIMITATION BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. COMPARE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. EVEN THOUGH YOU WERE NOT ADVISED OF YOUR ENTITLEMENT TO MUSTERING-OUT PAY AT THE TIME OF DISCHARGE WE MAY MAKE NO EXCEPTION TO THE PROVISIONS OF THE ABOVE ACT FOR SUCH REASON, NOR MAY WE GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. DION V. UNITED STATES, 137 CT.CL. 166.

SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE IT ACCRUED, WE ARE PRECLUDED BY THE LAW FROM GIVING IT ANY CONSIDERATION AND NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.