B-147026, SEP. 1, 1961

B-147026, SEP. 1, 1961

TO MRS. DORA B. WARD:

REFERENCE IS MADE TO LETTER DATED AUGUST 17, 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 ALLOTMENT PAYMENTS BELIEVED TO BE DUE YOU WHICH YOU SAY WERE AUTHORIZED FOR YOUR SON, CHARLES L. KELLER, BY HIS FATHER CURTIS KELLER, INCIDENT TO THE FATHER'S SERVICE IN THE ARMY. YOU STATE THAT THE PAYMENTS WERE TERMINATED IN 1943 BY REASON OF THE REPORTED ADOPTION OF THE DEPENDENT CHILD. APPARENTLY IT IS YOUR BELIEF THAT PAYMENTS ARE STILL DUE SINCE THE CHILD WAS NOT IN FACT ADOPTED AS YOU REPORTED. THERE HAS ALSO BEEN RECEIVED HERE A LETTER FROM HONORABLE FRANK M. KARSTEN, HOUSE OF REPRESENTATIVES, WRITTEN IN YOUR BEHALF CONCERNING THE MATTER.

WE HAVE NO INFORMATION, OTHER THAN THAT FURNISHED IN YOUR LETTERS, RESPECTING THE PAYMENTS AUTHORIZED AND THE TERMINATION OF SUCH PAYMENTS. YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE JULY 14, 1961, AND ON JULY 27, 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 WAR 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 AUGUST 10, 1961, IN RESPONSE TO YOUR LETTER RECEIVED BY US ON AUGUST 2, 1961, WE AGAIN ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE THE CLAIM FIRST ACCRUED AND THE DATE IT WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU EVIDENTLY ACKNOWLEDGE THAT YOUR CLAIM IS BARRED BY LAW BUT NEVERTHELESS EXPRESS THE HOPE THAT FAVORABLE ACTION MAY BE TAKEN. 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 DATES SUCH CLAIMS FIRST ACCRUED. ANY RIGHT YOU HAD TO AN ALLOTMENT MADE BY CHARLES KELLER ON BEHALF OF YOUR SON DURING 1943, INCIDENT TO THE FATHER'S MILITARY SERVICE, EXPIRED 10 YEARS AFTER THE RIGHT TO SUCH PAYMENTS FIRST ACCRUED.

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 STATUTE NOR MAY ANY 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.

IT MAY BE STATED THAT, WHILE YOU INDICATE THAT CURTIS KELLER AUTHORIZED ALLOTMENT PAYMENTS TO BE MADE TO YOU ON BEHALF OF HIS MINOR CHILD, CHARLES L. KELLER, APPARENTLY YOU HAVE REFERENCE TO FAMILY ALLOWANCE PAYMENTS WHICH WERE AUTHORIZED BY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, TO BE MADE TO OR ON BEHALF OF CERTAIN DEPENDENT RELATIVES OF ENLISTED MEMBERS SERVING IN THE ARMED FORCES. APPARENTLY PAYMENTS WERE AUTHORIZED TO BE PAID TO YOU FOR THE BENEFIT OF CHARLES L. KELLER ON THE BASIS THAT HE WAS THE ENLISTED MAN'S MINOR CHILD IN YOUR CUSTODY. SINCE YOU SAY HE IS NOW SERVING IN THE AIR FORCE AND, HENCE, IS NO LONGER IN YOUR CUSTODY, THERE WOULD BE NO AUTHORITY TO MAKE PAYMENT TO YOU OF ANY AMOUNT DUE-- THE RECORD BEFORE US DOES NOT SHOW ANY AMOUNT DUE- -- EVEN IF YOUR CLAIM WERE NOT BARRED. AND, ANY CLAIM THAT YOUR SON, CHARLES L. KELLER, MIGHT PRESENT FOR SUCH PAYMENTS WOULD ALSO BE BARRED BY THE 1940 ACT.