B-145789, JUL. 21, 1961

B-145789, JUL. 21, 1961

TO MRS. STELLA KRAJEWSKI:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1961, AND ENCLOSURES, PRESENTING CLAIM ON BEHALF OF YOUR MOTHER, MRS. ANNA SMOLINSKY, FOR ONE- HALF SHARE OF THE SIX MONTHS' DEATH GRATUITY THAT MAY BE DUE IN THE CASE OF HER LATE SON, FRANK J. SMOLINSKY, WHOSE DEATH OCCURRED ON APRIL 3, 1943, WHILE SERVING AS A SECOND LIEUTENANT, AIR CORPS, ARMY OF THE UNITED STATES. THAT LETTER, WHICH WAS MAILED TO THE VERTERANS ADMINISTRATION REGIONAL OFFICER, 252 SEVENTH AVENUE, NEW YORK, NEW YORK, AND FORWARDED BY THAT OFFICE TO THE DEPARTMENT OF THE ARMY, HAS BEEN TRANSMITTED HERE FOR CONSIDERATION.

OUR FILE SHOWS THAT BY LETTER OF NOVEMBER 12, 1957, YOU INITIALLY PRESENTED CLAIM TO THE DEPARTMENT OF THE ARMY ON BEHALF OF YOUR MOTHER FOR HER SHARE OF THE SIX MONTHS' DEATH GRATUITY. ON JANUARY 30, 1958, THE DEPARTMENT OF THE ARMY FORWARDED THAT LETTER TO OUR OFFICE WITH INFORMATION TO THE EFFECT THAT YOUR FATHER, JOHN SMOLINSKY, WAS PAID A ONE -HALF SHARE OF THE GRATUITY PAY AND THAT THERE WAS NO EVIDENCE OF A CLAIM EVER HAVING BEEN SUBMITTED BY YOUR MOTHER. SINCE ON FEBRUARY 5, 1958, DATE OF RECEIPT IN OUR OFFICE OF YOUR LETTER OF NOVEMBER 12, 1957, A PERIOD OF ALMOST 15 YEARS HAD ELAPSED FROM APRIL 3, 1943, DATE OF ACCRUAL OF YOUR MOTHER'S RIGHT TO CLAIM HER SHARE OF THE GRATUITY PAY AND SINCE SHE HAD NEVER FILED A CLAIM IN OUR OFFICE FOR SUCH PAY, OUR CLAIMS DIVISION RETURNED YOUR LETTER ON MARCH 14, 1958, 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.'

YOU SAY IN YOUR LETTER OF FEBRUARY 7, 1961, THAT YOUR MOTHER REFUSED TO SIGN THE APPLICATION FORM FOR THE DEATH GRATUITY WHICH HAD BEEN SENT TO HER BY THE DEPARTMENT OF THE ARMY ON AUGUST 11, 1945, BECAUSE SHE DID NOT BELIEVE "HER SON WAS GONE.' YOU INDICATE THAT YOUR MOTHER IS NOW LIVING WITH YOUR FATHER AND YOU AFTER HAVING BEEN RELEASED FROM THE MANHATTAN STATE HOSPITAL, AND, ACCORDINGLY, YOU DESIRE INFORMATION AS TO WHETHER NEW FORMS ARE TO BE EXECUTED AS SHE NEVER CLAIMED THE DEATH GRATUITY.

ANY CLAIM THAT MAY BE FILED BY YOUR MOTHER FOR HER SHARE OF THE DEATH GRATUITY WOULD BE BARRED UNDER THE ABOVE-QUOTED PROVISIONS OF THE ACT OF OCTOBER 9, 1940, BY REASON OF THE FACT THAT A PERIOD OF MORE THAN 10 YEARS HAS ELAPSED SINCE APRIL 3, 1943, WHEN HER RIGHT TO CLAIM SUCH SHARE FIRST ACCRUED. THE LIMITATION PRESCRIBED BY THAT ACT 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 OUR OFFICE AND NO PROVISION HAS BEEN MADE FOR OUR OFFICE TO WAIVE ITS PROVISIONS IN ANY CASE.

INASMUCH AS WE ARE PROHIBITED BY LAW FROM CONSIDERING ANY CLAIM THAT MAY BE FILED BY YOUR MOTHER FOR HER SHARE OF THE DEATH GRATUITY, THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.