B-147807, JAN. 12, 1962

B-147807, JAN. 12, 1962

TO MR. TEODORICO CORPUZ:

LETTER DATED FEBRUARY 23, 1961, WITH ENCLOSURES, SIGNED BY YOU AND MR. JOSE G. BRILLANTES, TO PRESIDENT JOHN F. KENNEDY 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 DIFFERENTIAL PAY BELIEVED DUE INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS DURING THE PERIOD SEPTEMBER 3, 1946, TO DATE OF DISCHARGE, MAY 18, 1949, HAS BEEN REFERRED TO US FOR REPLY. MR. BRILLANTES' CLAIM HAS BEEN CONSIDERED SEPARATELY BY OUR CLAIMS DIVISION.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE OCTOBER 26, 1959, AND ON NOVEMBER 2, 1959, 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 DECEMBER 30, 1959, 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 SAY THAT YOU FILED CLAIMS WITH THE ARMY RECORDS CENTER, ST. LOUIS, MISSOURI, IN 1957, AND WITH THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, IN 1958. EXCEPT IN CASES OF CERTAIN MEMBERS OF THE MILITARY AND NAVAL FORCES, AS SET FORTH ABOVE, 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 CLAIMS WITH THE ARMY RECORDS CENTER AND THE ARMY FINANCE CENTER 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 DIFFERENTIAL PAY BELIEVED DUE ACCRUED TO YOU NOT LATER THAN MAY 18, 1949, THE DATE OF YOUR DISCHARGE, AND 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 MAY 17, 1959. THERE IS NO RECORD OF ANY CLAIM FROM YOU HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE.

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.

WITH REGARD TO YOUR APPEAL FOR RECONSIDERATION OF YOUR CLAIM ON THE BASIS OF AN AMENDMENT TO THE TEN-YEAR BARRING ACT, YOU ARE ADVISED THAT TO DATE AN AMENDMENT TO THAT ACT HAS NOT BEEN PASSED BY THE CONGRESS AND APPROVED BY THE PRESIDENT. 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.