B-153640, APR. 13, 1964

B-153640: Apr 13, 1964

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L. LAWHON: FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 11. ADVISED YOU THAT IT APPEARED FROM THE RECORDS THAT A PRIOR CLAIM FROM YOU WAS RECEIVED IN THIS OFFICE AND THAT SETTLEMENT ACTION WAS TAKEN ON NOVEMBER 27. YOU WERE FURTHER ADVISED THAT IN VIEW OF THE LONG PERIOD OF TIME BETWEEN THE FILING OF THE ORIGINAL CLAIM AND THE RECEIPT OF THE SUBSEQUENT CLAIM DURING WHICH TIME THE RECORDS WERE DESTROYED PURSUANT TO LAW. THE PRESUMPTION ARISES THAT THE CLAIM WAS NEVER VALID OR. IT WAS ALSO STATED THAT IN SUCH CASE. VANCE'S LETTER IT IS STATED THAT YOU WERE INCOMPETENT AT THE TIME AND THEREFORE THE STATUTE SHOULD NOT RUN AGAINST YOU. WE HAVE MADE A CAREFUL INVESTIGATION OF THE MATTER AND.

B-153640, APR. 13, 1964

TO MR. ROBERT E. L. LAWHON:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 11, 1964, WRITTEN IN YOUR BEHALF BY MR. VANCE, RELATIVE TO YOUR CLAIM FOR ARREARS OF PAY BELIEVED TO BE DUE AT THE DATE OF YOUR DISCHARGE FROM THE ARMY ON AUGUST 8, 1944.

BY LETTER DATED DECEMBER 3, 1963, OUR CLAIMS DIVISION, IN REPLY TO YOUR LETTER OF NOVEMBER 1, 1963, ADVISED YOU THAT IT APPEARED FROM THE RECORDS THAT A PRIOR CLAIM FROM YOU WAS RECEIVED IN THIS OFFICE AND THAT SETTLEMENT ACTION WAS TAKEN ON NOVEMBER 27, 1944. YOU WERE FURTHER ADVISED THAT IN VIEW OF THE LONG PERIOD OF TIME BETWEEN THE FILING OF THE ORIGINAL CLAIM AND THE RECEIPT OF THE SUBSEQUENT CLAIM DURING WHICH TIME THE RECORDS WERE DESTROYED PURSUANT TO LAW, THE PRESUMPTION ARISES THAT THE CLAIM WAS NEVER VALID OR, IF VALID, THAT IT HAS BEEN PAID. IT WAS ALSO STATED THAT IN SUCH CASE, IN THE ABSENCE OF CLEAR AND SATISFACTORY EVIDENCE OF THE VALIDITY AND NONPAYMENT OF A CLAIM, OUR OFFICE HAS CONSISTENTLY REFUSED TO ALLOW A CLAIM WHERE THE CLAIMANT HAS FAILED TO PROSECUTE THE MATTER FOR A LONG PERIOD OF YEARS.

IN MR. VANCE'S LETTER IT IS STATED THAT YOU WERE INCOMPETENT AT THE TIME AND THEREFORE THE STATUTE SHOULD NOT RUN AGAINST YOU. HE ALSO REQUESTS THAT WE CHECK AND SEE WHO APPLIED FOR AND RECEIVED THE PAYMENT.

WE HAVE MADE A CAREFUL INVESTIGATION OF THE MATTER AND, ON THE BASIS OF THE RECORDS STILL AVAILABLE TO US AND THE PROCEDURES IN EFFECT DURING WORLD WAR II, IT APPEARS THAT CONTRARY TO THE STATEMENTS IN THE LETTER OF DECEMBER 3, 1963, NO CLAIM WAS FILED HERE BY YOU OR ON YOUR BEHALF PRIOR TO NOVEMBER 1, 1963, AND NO SETTLEMENT ACTION WAS TAKEN. IN ACCORDANCE WITH THE PROCEDURES IN EFFECT AT THE TIME OF YOUR DISCHARGE, IT APPEARS THAT THE ARMY WOULD HAVE SENT US CORRESPONDENCE CONCERNING YOUR STATUS AS AN INCOMPETENT AND THAT SUCH CORRESPONDENCE WOULD HAVE BEEN ASSIGNED A CLAIM NUMBER AND FILED AS A CAVEAT UNTIL SUCH TIME AS A CLAIM WAS RECEIVED IN THIS OFFICE. IF NO CLAIM WAS RECEIVED IN SUCH CASES WITHIN A REASONABLE TIME, THE CORRESPONDENCE WAS SENT TO THE SETTLED FILES AND THE CONTROL WAS MARKED "DISMISSED," INDICATING THAT NO CLAIMS ACTION HAD BEEN TAKEN. WE BELIEVE THIS PROCEDURE WAS FOLLOWED IN YOUR CASE. THEREFORE THE ONLY CLAIM PRESENTED BY YOU AND RECEIVED HERE WAS THE CLAIM FILED BY YOUR LETTER OF NOVEMBER 1, 1963.

YOUR CLAIM IS BARRED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, 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 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.'

WITH RESPECT TO THE CONTENTION THAT MENTAL DISABILITY SHOULD EXCUSE YOU FROM THE APPLICABILITY OF THE STATUTE, THE EXCEPTIONS STATED IN THE ACT DO NOT INCLUDE SUCH A PROVISION. FURTHERMORE THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATION 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, EVEN THOUGH ALL OR A PART OF THE DELAY IN FILING A CLAIM MAY HAVE BEEN THE RESULT OF YOUR DISABILITY, OUR OFFICE CAN MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE NOR GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED.

THE ABOVE ACT OF OCTOBER 9, 1940, REQUIRES CLAIMS TO BE FILED IN THE GENERAL ACCOUNTING OFFICE AND BARS CONSIDERATION OF ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE 10-YEAR PERIOD. SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER IT FIRST ACCRUED ON AUGUST 8, 1944, WE TRUST YOU WILL UNDERSTAND THAT WE ARE PRECLUDED BY LAW FROM CONSIDERING THE CLAIM AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.