B-146154, AUG. 22, 1961

B-146154, AUG. 22, 1961

TO MR. FRANK P. IOVINO:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1961, CONCERNING YOUR CLAIM FOR ADDITIONAL RETIRED PAY WHICH YOU BELIEVE TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY.

YOUR CLAIM, WHICH WAS ON DD FORM 827 (APPLICATION FOR ARREARS IN PAY), WAS DATED SEPTEMBER 27, 1957, AND IT WAS RECEIVED IN OUR OFFICE ON OCTOBER 1, 1957. IT WAS SPECIFIED ON THE FORM THAT IT WAS FOR USE OF SERVICE MEMBERS, FORMER SERVICE MEMBERS, OR LEGAL REPRESENTATIVES OF INCOMPETENT MEMBERS, IN CLAIMING ARREARS OF PAY, ETC., BELIEVED TO BE DUE. IN YOUR CLAIM YOU STATED THAT YOU WERE ENTITLED, PURSUANT TO 32 COMP. GEN. 159, TO AN ADJUSTMENT IN PAY FOR THE PERIOD FROM JANUARY 20, 1945, TO SEPTEMBER 30, 1949. IN YOUR LETTER DATED DECEMBER 16, 1957, YOU STATED THAT YOU HAD ELECTED TO HAVE YOUR CLAIM CONSIDERED UNDER THE PROVISIONS OF PUBLIC LAW 720, 79TH CONGRESS, APPROVED AUGUST 10, 1946, 60 STAT. 993.

OUR CLAIMS DIVISION, BY SETTLEMENT DATED DECEMBER 17, 1957, ALLOWED YOUR CLAIM IN THE NET AMOUNT OF $442.80, REPRESENTING ADDITIONAL RETIRED PAY FROM OCTOBER 1, 1947, THROUGH SEPTEMBER 30, 1949, AND ADVISED YOU THAT THE PORTION OF YOUR CLAIM COVERING THE PERIOD PRIOR TO OCTOBER 1, 1947, WAS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, SINCE IT WAS NOT PRESENTED TO OUR OFFICE WITHIN 10 YEARS AFTER THE DATE THE CLAIM ACCRUED. SUBSEQUENTLY, IN LETTER DATED JUNE 10, 1959, IT WAS EXPLAINED TO YOU WHY WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM FOR THAT PERIOD. IN YOUR LETTER OF JUNE 9, 1961, YOU REQUEST RECONSIDERATION OF THAT PART OF YOUR CLAIM, BUT YOU DO NOT THERE INDICATE THE BASIS OF SUCH REQUEST. IT APPEARS, HOWEVER, THAT YOU PREVIOUSLY HAVE CONTENDED THAT YOU DID NOT SUBMIT A CLAIM WITHIN THE MEANING OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, BUT THAT THE DEPARTMENT OF THE NAVY SENT YOU PAPERS FOR AN ADJUSTMENT OF PAY AND YOU MERELY SIGNED THOSE PAPERS.

THE RECORDS SHOW THAT YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON SEPTEMBER 30, 1935, AFTER HAVING COMPLETED MORE THAN 16 YEARS OF NAVAL SERVICE AND THAT THEREAFTER YOU PERFORMED ACTIVE DUTY FROM AUGUST 1, 1941, TO JANUARY 19, 1945. YOU WERE PLACED ON THE RETIRED LIST ON FEBRUARY 1, 1945, AND IT APPEARS THAT YOU WERE PAID RETIRED PAY FOR THE PERIOD INVOLVED AT THE RATE OF ONE-THIRD OF YOUR BASE PAY, PLUS ALL PERMANENT ADDITIONS ON ACCOUNT OF LONGEVITY, UNDER THE CONSTRUCTION OF THE APPLICABLE STATUTES AS ADOPTED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AT THAT TIME. SEE DECISION OF APRIL 23, 1947, B-64196, 26 COMP. GEN. 804. IN THE CASE OF SANDERS V. UNITED STATES, 120 CT.CL. 501, DECIDED JANUARY 9, 1951, WHERE THE FACTS WERE SIMILAR TO THOSE HERE INVOLVED, THE COURT HELD THAT A FLEET RESERVIST IS ENTITLED, UNDER THE PROVISIONS OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, TO HAVE HIS RETIRED PAY COMPUTED AT THE RATE OF ONE-HALF OF HIS BASE PAY AT THE TIME OF HIS RETIREMENT, PLUS ALL PERMANENT ADDITIONS THERETO BECAUSE OF LONGEVITY. IN OUR DECISION OF OCTOBER 3, 1952, B-109748, 32 COMP. GEN. 159, WE ADVISED THE SECRETARY OF THE NAVY THAT WE WOULD FOLLOW THE DECISION IN THE SANDERS CASE AND SETTLE CLAIMS ON THAT BASIS.

UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 42 STAT. 24 (31 U.S.C. 71), IT HAS BEEN PROVIDED THAT THE GENERAL ACCOUNTING OFFICE SHALL SETTLE AND ADJUST---

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR * * *.'

THE WORD "CLAIMS," AS USED IN THE ACT, INCLUDES ALL DEMANDS AGAINST THE UNITED STATES FOR THE PAYMENT OF MONEY. ACCORDINGLY, YOUR CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD FROM JANUARY 20, 1945, TO SEPTEMBER 30, 1947, IS SUCH A CLAIM UPON THE UNITED STATES AS IS CONTEMPLATED BY THE STATUTE.

WITH EXCEPTIONS NOT HERE MATERIAL, THE ACT OF OCTOBER 9, 1940, PROVIDES THAT EVERY CLAIM OR DEMAND COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 42 STAT. 24, "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' YOUR CLAIM FOR THE PERIOD ENDING AUGUST 10, 1946, ACTUALLY ACCRUED ON THAT DATE, WHICH WAS THE EFFECTIVE DATE OF THE ACT WHICH AMENDED THE NAVAL RESERVE ACT OF 1938, 60 STAT. 993, 997, GRANTING RETROACTIVE AND PROSPECTIVE INCREASES IN RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. YOUR RIGHT TO INCREASED RETIRED PAY SUBSEQUENT TO AUGUST 10, 1946, ACCRUED ON A DAY TO DAY BASIS AND WAS SUBJECT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940. NOTWITHSTANDING THE ABOVE MENTIONED DECISION OF OCTOBER 3, 1952, TO THE SECRETARY OF THE NAVY, YOUR CLAIM FOR INCREASED RETIRED PAY WAS NOT RECEIVED IN OUR OFFICE UNTIL OCTOBER 1, 1957.

IN VIEW OF THE SPECIFIC PROVISION OF THE ACT OF OCTOBER 9, 1940, WE ARE WITHOUT AUTHORITY TO ALLOW A CLAIM WHICH IS RECEIVED HERE MORE THAN 10 YEARS AFTER A RIGHT THERETO FIRST ACCRUED. DELAY IN DETERMINING THE EFFECT OF THE 1946 ACT OR DELAY IN MAKING THE REQUIRED ELECTION UNDER THAT ACT DOES NOT AFFECT THE OPERATION OF THE 1960 ACT. MOREOVER, THE PRIMARY RESPONSIBILITY FOR FILING A CLAIM RESTS UPON THE CLAIMANT AND FAILURE ON THE PART OF THE ADMINISTRATIVE OFFICE TO ADVISE HIM THAT A CLAIM EXISTS DOES NOT SUSPEND THE RUNNING OF THE STATUTE OF LIMITATIONS. HENCE, THAT PORTION OF YOUR CLAIM WHICH ACCRUED MORE THAN 10 YEARS BEFORE OCTOBER 1, 1957, THE DATE YOUR CLAIM WAS RECEIVED IN OUR OFFICE, IS BARRED BY THE ACT OF OCTOBER 9, 1940.