B-146625, AUG. 30, 1961

B-146625, AUG. 30, 1961

TO MR. RAYMOND E. BAILEY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 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 PAY BELIEVED DUE INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY DURING THE PERIOD JANUARY 3, 1947, TO DATE OF DISCHARGE, JULY 27, 1948.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON APRIL 25, 1961, AND ON MAY 5, 1961, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIM WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"/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 WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

BY LETTER DATED JUNE 9, 1961, YOU AGAIN WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIM AND STATE THAT YOU DO NOT UNDERSTAND WHY THE GOVERNMENT DOES NOT OWE YOU ANYTHING BECAUSE MORE THAN TEN YEARS HAVE ELAPSED SINCE YOUR CLAIM FIRST ACCRUED. EXCEPT IN CASES OF CERTAIN MEMBERS OF THE MILITARY AND NAVAL FORCES, THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE FACT THAT YOU MAY HAVE FILED CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT WITHIN THE TEN-YEAR PERIOD WOULD NOT SATISFY THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940, SINCE IT PROVIDES THAT SUCH CLAIMS MUST BE RECEIVED IN THIS OFFICE WITHIN THE REQUIRED PERIOD. ANY RIGHT YOU MAY HAVE HAD TO THE PAY BELIEVED DUE ACCRUED TO YOU NOT LATER THAN JULY 27, 1948, THE DATE OF YOUR DISCHARGE, SINCE IT DOES NOT APPEAR THAT YOU WERE A MEMBER OF THE MILITARY OR NAVAL FORCES AFTER THAT DATE. THE TEN-YEAR PERIOD IN YOUR CASE EXPIRED JULY 26, 1958. THERE IS NO RECORD OF ANY CLAIM FROM YOU HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE. HENCE, REGARDLESS OF THE MERITS OF THE CLAIM, THE CONGRESS BARRED ITS CONSIDERATION BY US.

THE LIMITATION, PRESCRIBED BY 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 ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267. ALSO AS WE STATED IN OUR LETTER OF JUNE 9, 1961, THE FACT THAT YOU MAY HAVE FILED A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT WITHIN THE TEN-YEAR PERIOD INVOLVED DOES NOT OPERATE TO ALTER THE LIMITATION IMPOSED UPON OUR OFFICE BY LAW.

ACCORDINGLY, YOUR CLAIM NOT HAVING BEEN RECEIVED HERE WITHIN TEN FULL YEARS AFTER ACCRUAL, 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.