B-147379, NOV. 1, 1961

B-147379, NOV. 1, 1961

TO MR. ARMANDO L. GABRIANA:

YOUR LETTER DATED SEPTEMBER 26, 1961, REQUESTS RECONSIDERATION OF THE ACTION TAKEN IN LETTERS OF MARCH 20 AND AUGUST 9, 1961, WHEREIN YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED TO BE DUE YOU FROM THE UNITED STATES ARMY AT DATE OF DISCHARGE, JUNE 30, 1946, WAS HELD TO BE BARRED PURSUANT TO THE ACT OF OCTOBER 9, 1940.

YOU STATE THAT SINCE YOUR SERVICE SEPARATION PAPERS CONTAINED A NOTATION TO THE EFFECT THAT THE AMOUNT OF $300 WAS DUE YOU AS MUSTERING-OUT PAY, SUCH NOTATION CONSTITUTED A DETERMINATION THAT AN OBLIGATION EXISTED ON THE PART OF THE UNITED STATES GOVERNMENT TO PAY TO YOU THE BALANCE OF $200 REMAINING UNPAID. IT APPEARS TO BE YOUR VIEW THAT SUCH ADMINISTRATIVE ACTION ESTABLISHED A CLAIM IN YOUR FAVOR IN A MANNER OR OF A TYPE WHICH WAS NOT SUBJECT TO THE BAR OF THE CITED STATUTE OF LIMITATIONS.

THE INFORMATION FURNISHED INDICATES THAT YOU WERE DISCHARGED FROM THE ARMY ON JUNE 30, 1946, AND THAT YOU WERE PAID MUSTERING-OUT PAY IN THE AMOUNT OF $100. THE RECORDS SHOW THAT YOUR ORIGINAL CLAIM FOR MUSTERING- OUT PAY WAS RECEIVED IN OUR CLAIMS DIVISION ON MARCH 6, 1961, AND OUR FILES FAIL TO SHOW ANY RECORD OF A PREVIOUS CLAIM FOR THE SAME ITEM. THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, PROVIDES THAT WHENEVER ANY CLAIM SO BARRED SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT WITH A COPY OF THE ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION. ON MARCH 20, 1961, OUR CLAIMS DIVISION RETURNED YOUR CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940. IN RESPONSE TO YOUR FURTHER INQUIRY OUR CLAIMS DIVISION BY LETTER DATED AUGUST 9, 1961, EXPLAINED TO YOU THAT THE ACT BARS CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF NOT RECEIVED WITHIN TEN FULL YEARS AFTER THE DATE SAID CLAIM FIRST ACCRUED. IT WAS ALSO POINTED OUT THAT THE FACT THAT YOU WERE NOT ACQUAINTED WITH THE LAW CONSTITUTED NO LEGAL BASIS UPON WHICH THIS OFFICE MAY GIVE CONSIDERATION TO YOUR CLAIM, SINCE THE 1940 ACT MAKES NO EXCEPTIONS WHICH WOULD PERMIT FAVORABLE ACTION ON CLAIMS OF INDIVIDUALS WHO BELATEDLY LEARN OF THEIR RIGHTS.

WHENEVER A PERSON MEETS THE REQUIREMENTS OF A STATUTE ENTITLING HIM TO A SUM OF MONEY, HIS RIGHT TO THE AMOUNT INVOLVED ACCRUES AND IS COMPLETE WHETHER OR NOT HE IS OFFICIALLY NOTIFIED OF THAT FACT. WHERE, AS HERE, NOTICE IS GIVEN AT THE TIME OF PAYMENT OF THE FIRST INSTALLMENT THAT THE AMOUNT DUE IS PAYABLE IN THREE INSTALLMENTS OF $100 EACH, THE RIGHTS OF THE PERSON CONCERNED ARE NO DIFFERENT FROM THOSE OF ANOTHER QUALIFIED PERSON, WHO THROUGH OVERSIGHT, RECEIVES NO NOTICE AND IS PAID NOTHING. BOTH MUST ASSERT THEIR CLAIMS WITHIN THE STATUTORY PERIOD FOR FILING SUCH CLAIMS IF THEY ARE NOT PAID THE AMOUNTS TO WHICH THEY ARE ENTITLED. IF, AS INDICATED, YOUR SEPARATION PAPERS APPRISED YOU OF YOUR RIGHT TO AN ADDITIONAL $200, YOU WERE IN A BETTER POSITION TO MAKE CLAIM THEREFOR THAN A QUALIFIED SERVICEMAN WHO RECEIVED NO MUSTERING-OUT PAY AND WHOSE SEPARATION PAPERS FAILED TO ADVISE HIM OF HIS RIGHTS TO SUCH PAY.

THE ACT OF OCTOBER 9, 1940, PROHIBITS ANY CONSIDERATION OF A CLAIM NOT RECEIVED HERE WITHIN THE TEN-YEAR LIMITATION PERIOD. SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN TEN FULL YEARS FROM THE DATE IT FIRST ACCRUED, WE HAVE NO CHOICE IN THE MATTER BUT MUST APPLY THE PROVISIONS OF THE STATUTE.

THE ACTION TAKEN IN LETTERS OF MARCH 20 AND AUGUST 9, 1961, WAS PROPER AND IS SUSTAINED.