B-146570, AUG. 23, 1961

B-146570, AUG. 23, 1961

TO MRS. NOVELLA C. JOHNSON:

REFERENCE IS MADE TO YOUR COMMUNICATION DATED JULY 20, 1961, IN EFFECT REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, BARRING YOUR CLAIM FOR AN ALLOTMENT BELIEVED DUE INCIDENT TO THE MILITARY SERVICE OF YOUR SON, THOMAS DILLARD, UNITED STATES NAVY, DURING 1945.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE MARCH 27, 1961, AND ON MAY 29, 1961, THE CLAIMS DIVISION OF OUR OFFICE RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, WHICH PROVIDES AS FOLLOWS (31 U.S.C. 71A):

"/1) 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 OF THIS TITLE 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 WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAS INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"/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 DATED JULY 17, 1961, IN RESPONSE TO YOUR LETTER OF JUNE 7, 1961, WE AGAIN ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM RECONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN 10 FULL YEARS HAD ELAPSED BETWEEN THE DATE THE CLAIM FIRST ACCRUED AND THE DATE IT WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT COMMUNICATION, ON THE BASIS OF THE CARD POSTMARKED MAY 16, 1945, WHICH YOU RECEIVED FROM THE WAR DEPARTMENT, ARMY SERVICE FORCES, OFFICE OF DEPENDENCY BENEFITS, NEWARK 2, NEW JERSEY, YOU STATE THAT YOUR CLAIM HAS BEEN IN SINCE 1945. HOWEVER, THE FACT THAT YOU MIGHT HAVE FILED A CLAIM IN 1945 WITH THAT OFFICE WOULD NOT SATISFY THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940. THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS NOT FILED HERE IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED. ANY RIGHT YOU HAD TO AN ALLOTMENT MADE BY YOUR SON DURING 1945 INCIDENT TO HIS MILITARY SERVICE FIRST ACCRUED IN THAT YEAR AND THUS THE TEN-YEAR PERIOD EXPIRED IN 1955.

THE LIMITATION PRESCRIBED BY THE STATUTE 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 THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY AN EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670, 32 ID. 267.

ACCORDINGLY, SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS FROM THE DATE IT ACCRUED, WE TRUST YOU WILL UNDERSTAND THAT IT IS PRECLUDED FROM OUR CONSIDERATION BY LAW AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.

THE CARD YOU RECEIVED FROM THE WAR DEPARTMENT IN 1945 IS RETURNED HEREWITH.