B-152930, DEC. 13, 1963

B-152930: Dec 13, 1963

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AMBROCIO DAUZ: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17. YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MAY 27. SINCE THERE IS NO RECORD OF YOUR FILING A CLAIM PRIOR TO THAT DATE. THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT CONSIDERATION OF YOUR CLAIM WAS PRECLUDED BY THE ACT OF OCTOBER 9. A COPY OF WHICH WAS SENT TO YOU. OUR OFFICE RECEIVED A SECOND LETTER FROM YOU REQUESTING RECONSIDERATION OF YOUR CLAIM ON THE GROUND THAT YOU WERE UNAWARE OF THE PROVISIONS OF THE 1940 ACT. OUR CLAIMS DIVISION INFORMED YOU THAT THE FACT THAT YOU WERE NOT ACQUAINTED WITH THE LAW CONSTITUTES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY CONSIDER YOUR CLAIM AND THAT THE EXCEPTION CONTAINED IN THE 1940 ACT APPLIES ONLY TO PERSONS SERVING IN THE MILITARY FORCES OF THE UNITED STATES.

B-152930, DEC. 13, 1963

TO MR. AMBROCIO DAUZ:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1963 REQUESTING FURTHER REVIEW OF OUR SETTLEMENT DATED JUNE 27, 1963, WHICH DISALLOWED YOUR CLAIM FOR UNPAID COMPENSATION BASED UPON SERVICES RENDERED AS A CIVILIAN EMPLOYEE WITH THE DEPARTMENT OF THE ARMY FOR AN UNSTATED PERIOD DURING THE EARLY STAGES OF WORLD WAR II.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MAY 27, 1963. SINCE THERE IS NO RECORD OF YOUR FILING A CLAIM PRIOR TO THAT DATE, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT CONSIDERATION OF YOUR CLAIM WAS PRECLUDED BY THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS SENT TO YOU. ON AUGUST 6, 1963, OUR OFFICE RECEIVED A SECOND LETTER FROM YOU REQUESTING RECONSIDERATION OF YOUR CLAIM ON THE GROUND THAT YOU WERE UNAWARE OF THE PROVISIONS OF THE 1940 ACT. IN ADDITION, YOU CONTENDED THAT THE EXISTENCE OF INTERNAL STRIFE IN YOUR COUNTRY BROUGHT YOUR CASE WITHIN THE EXCEPTION IN THE 1940 ACT RELATING TO MILITARY SERVICE AND THE INTERVENTION OF WAR. BY LETTER DATED AUGUST 23, 1963, OUR CLAIMS DIVISION INFORMED YOU THAT THE FACT THAT YOU WERE NOT ACQUAINTED WITH THE LAW CONSTITUTES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY CONSIDER YOUR CLAIM AND THAT THE EXCEPTION CONTAINED IN THE 1940 ACT APPLIES ONLY TO PERSONS SERVING IN THE MILITARY FORCES OF THE UNITED STATES. YOUR REQUEST FOR FURTHER REVIEW IS AGAIN BASED ON THE CONTENTION THAT THE EXCEPTION IN THE 1940 ACT RELATING TO MILITARY SERVICE IS APPLICABLE TO YOUR CASE.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71 (A), PROVIDES IN PART AS FOLLOWS:

"* * * THAT 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 SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), 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.

"SEC. 2. WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

PLEASE OBSERVE THAT THE PROVISION IN THE ABOVE ACT FOR EXTENDING THE 10- YEAR PERIOD IS APPLICABLE ONLY TO PERSONS WHO SERVE IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES AND WHEN THEIR CLAIMS ACCRUED DURING SUCH SERVICE OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER THE ACCRUAL. THERE IS NO EVIDENCE OF RECORD INDICATING THAT YOU EVER SERVED IN THE MILITARY FORCES OF THE UNITED STATES. YOUR SERVICES AS A CIVILIAN EMPLOYEE DO NOT ENTITLE YOU TO THE BENEFIT OF THE EXTENSION PROVISION.

THE ACT OF OCTOBER 9, 1940, EXPRESSLY PROHIBITS CONSIDERATION BY THIS OFFICE OF CLAIMS FILED HERE LATER THAN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. 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, REGARDLESS OF HOW MERITORIOUS A CLAIM MAY BE, NO EXCEPTIONS MAY BE MADE TO THE STATUTE, NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED BY OUR OFFICE.

WE TRUST THAT YOU WILL UNDERSTAND THAT WE ARE PROHIBITED BY LAW FROM CONSIDERING YOUR CLAIM FOR COMPENSATION AND THAT THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.