B-145604, MAY 17, 1961

B-145604: May 17, 1961

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THAT THE PARENTHETICAL EXCLUSION CLAUSE (IN THE 1940 ACT) REFERRED TO BY YOU IS APPLICABLE ONLY TO A CLAIM OR DEMAND BY ANY STATE. YOU ASK WHY THE AMOUNT ALLEGED TO BE DUE WAS NOT PAID TO YOU SHORTLY AFTER IT ACCRUED OR INCLUDED IN YOUR FINAL ACCOUNT WHEN YOU SEPARATED FROM THE SERVICE. 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. EVEN IF YOUR CLAIM FOR FURLOUGH PAY WAS NOT BARRED. AT THE TIME OF YOUR DISCHARGE IN 1922 THERE WAS NO LAW PROVIDING FOR LEAVES OF ABSENCE OF ENLISTED MEN OF THE ARMY AND THEY NEITHER EARNED NOR ACCRUED ANY SUCH LEAVE. THE MATTER WAS CONTROLLED ADMINISTRATIVELY BY REGULATIONS.

B-145604, MAY 17, 1961

TO MR. TOMAS (IGOROT) GATUDAN:

YOUR LETTER DATED FEBRUARY 20, 1961, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES RELATIVE TO YOUR CLAIM FOR SEVEN MONTHS' FURLOUGH PAY BELIEVED DUE AT DATE OF DISCHARGE IN 1922 INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY HAS BEEN REFERRED HERE FOR REPLY.

ON OCTOBER 18, 1960, OUR CLAIMS DIVISION RETURNED YOUR LETTER DATED AUGUST 30, 1960, IN WHICH YOU CLAIMED SEVEN MONTHS' FURLOUGH PAY FOR SERVICE IN THE ARMY OF THE UNITED STATES FROM 1914 TO 1922, TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. THAT ACT PROVIDES, IN PERTINENT PART, THAT 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, TITLE 31, U.S.C. "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 (GENERAL ACCOUNTING OFFICE) WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED," AND THAT SUCH CLAIM OR DEMAND SHALL BE RETURNED WITH A COPY OF THE ACT.

BY LETTER OF DECEMBER 2, 1960, YOU REQUESTED THAT YOUR CLAIM BE RECONSIDERED DUE TO YOUR LACK OF KNOWLEDGE OF THE EXISTENCE OF THE LAW AND FURTHER THAT IT DID NOT BY ITS TERMS APPLY TO YOU, A NATIVE OF THE PHILIPPINES. THE CLAIMS DIVISION IN LETTER DATED DECEMBER 20, 1960, EXPLAINED THAT THE LAW MAKES NO EXCEPTION WHICH WOULD PERMIT FAVORABLE ACTION ON CLAIMS OF INDIVIDUALS WHO BELATEDLY LEARN OF THEIR RIGHTS, AND THAT THE PARENTHETICAL EXCLUSION CLAUSE (IN THE 1940 ACT) REFERRED TO BY YOU IS APPLICABLE ONLY TO A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA, AND DOES NOT EXTEND TO CLAIMS OF INDIVIDUALS RESIDING IN THOSE POLITICAL SUBDIVISIONS.

IN YOUR LETTER DATED FEBRUARY 20, 1961, YOU ASK WHY THE AMOUNT ALLEGED TO BE DUE WAS NOT PAID TO YOU SHORTLY AFTER IT ACCRUED OR INCLUDED IN YOUR FINAL ACCOUNT WHEN YOU SEPARATED FROM THE SERVICE. YOU SAY THAT YOU DID NOT LEARN OF YOUR RIGHT TO FILE A CLAIM FOR THE PAY IN QUESTION UNTIL 1960.

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 DID NOT KNOW OF THE ACT, WE MAY MAKE NO EXCEPTIONS TO ITS PROVISIONS NOR MAY WE GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. DION V. UNITED STATES, 137 CT.CL. 166.

EVEN IF YOUR CLAIM FOR FURLOUGH PAY WAS NOT BARRED, THERE WOULD BE NO BASIS FOR ALLOWING YOU ANY SUCH PAY. AT THE TIME OF YOUR DISCHARGE IN 1922 THERE WAS NO LAW PROVIDING FOR LEAVES OF ABSENCE OF ENLISTED MEN OF THE ARMY AND THEY NEITHER EARNED NOR ACCRUED ANY SUCH LEAVE. THE MATTER WAS CONTROLLED ADMINISTRATIVELY BY REGULATIONS. PARAGRAPH 1, ARMY REGULATIONS 615-275 DATED SEPTEMBER 26, 1921, AUTHORIZED COMMANDING OFFICERS TO GRANT FURLOUGHS OF 30 DAYS A YEAR TO ENLISTED MEN WHERE THE CIRCUMSTANCES PERMITTED. THE FAILURE TO GRANT SUCH FURLOUGHS, HOWEVER, DID NOT ENTITLE THE ENLISTED MEN TO ANY PAY. IT WAS NOT UNTIL THE ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 31A, THAT AUTHORITY EXISTED FOR THE ACCRUAL OF LEAVE BY ENLISTED MEN AND FOR PAYMENT FOR CERTAIN LEAVE NOT TAKEN PRIOR TO SEPARATION, BUT THAT ACT HAS NO APPLICATION IN THE CASE OF A DISCHARGE PRIOR TO WORLD WAR II. SINCE YOU WERE NOT ENTITLED TO FURLOUGH PAY, IT COULD NOT BE PAID TO YOU WHEN YOU WERE DISCHARGED IN 1922.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION ON YOUR CLAIM WAS PROPER AND IS SUSTAINED.