B-153963, JUL. 20, 1964

B-153963: Jul 20, 1964

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BANKS: FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR TRAVEL ALLOWANCE FROM FRANKFURT. THIS CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 23. FOR THE REASON THAT THERE WAS INCLUDED IN YOUR FINAL PAY WHEN YOU WERE DISCHARGED THE AMOUNT OF $87.75. POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE PRIMARY PURPOSE OF THE ACT WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. THE LIMITATION PRESCRIBED BY THE 1940 ACT UPON THE 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.

B-153963, JUL. 20, 1964

TO MR. OREN S. BANKS:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR TRAVEL ALLOWANCE FROM FRANKFURT, GERMANY, TO SAN JACINTO, CALIFORNIA, INCIDENT TO YOUR DISCHARGE FROM THE UNITED STATES ARMY ON JUNE 7, 1947, AT FRANKFURT.

THE RECORD SHOWS THAT ON JULY 25, 1949, OUR OFFICE RECEIVED FROM THE OFFICE OF THE CHIEF OF FINANCE, ARMY FINANCE CENTER, YOUR CLAIM DATED APRIL 26, 1949, FOR TRAVEL ALLOWANCE FROM NEW YORK, NEW YORK, TO SAN JACINTO, CALIFORNIA, INCIDENT TO YOUR DISCHARGE FROM THE ARMY. THIS CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 23, 1949, FOR THE REASON THAT THERE WAS INCLUDED IN YOUR FINAL PAY WHEN YOU WERE DISCHARGED THE AMOUNT OF $87.75, WHICH REPRESENTED TRAVEL ALLOWANCE FOR THE DISTANCE FROM THE PORT OF DEBARKATION, NEW YORK, NEW YORK, TO CAMP WOLTERS, TEXAS (1,755 MILES AT 5 CENTS PER MILE). THE RECORD ALSO SHOWS THAT IN YOUR REQUEST FOR OVERSEAS SEPARATION DATED MARCH 4, 1947, YOU EXPRESSED A DESIRE TO BE SEPARATED IN GERMANY SINCE YOU INTENDED TO RESIDE AT ESSLINGEN, GERMANY, AND THAT YOU HAD AN OFFER FOR EMPLOYMENT WITH THE ARMY EXCHANGE SERVICE. YOU ACKNOWLEDGED IN YOUR REQUEST FOR OVERSEAS SEPARATION THAT YOU HAD BEEN OFFERED GOVERNMENT TRANSPORTATION TO THE UNITED STATES BUT DECLINED IT WITH THE UNDERSTANDING THAT YOU WOULD NOT BE OFFERED SUCH TRANSPORTATION AT A LATER DATE.

RELATIVE TO THAT PART OF YOUR CLAIM FOR TRAVEL ALLOWANCE FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061 (31 U.S.C. 71A), COPY ENCLOSED, PROVIDES 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 IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. YOUR CLAIM ACCRUED AT THE TIME OF YOUR DISCHARGE ON JUNE 7, 1947. THE PRIMARY PURPOSE OF THE ACT WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. SEE 32 COMP. GEN. 107. THE LIMITATION PRESCRIBED BY THE 1940 ACT UPON THE 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. COMPARE BARTLESVILLE ZINC CO. V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. ACCORDINGLY, NO MATTER 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.

SINCE THAT PART OF YOUR PRESENT CLAIM FOR TRAVEL ALLOWANCE FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, WAS FIRST RECEIVED IN OUR OFFICE ON APRIL 1, 1964, FROM THE ARMY FINANCE CENTER, CONSIDERATION THEREOF IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940. YOU MAY BE ADVISED, HOWEVER, THAT EVEN IF YOU HAD FILED CLAIM WITHIN 10 YEARS AFTER YOU WERE DISCHARGED FROM THE ARMY YOU WOULD NOT HAVE BEEN ENTITLED TO REIMBURSEMENT FOR THE SEA TRAVEL INVOLVED SINCE PARAGRAPH 41B (1) OF ARMY REGULATIONS 35 -4810, DATED APRIL 8, 1947, IN EFFECT AT THE TIME OF YOUR DISCHARGE, PROVIDED THAT FOR SEA TRAVEL OF ENLISTED PERSONS OF THE ARMY BETWEEN PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY AND PLACE TO WHICH TRAVEL IS AUTHORIZED ONLY TRANSPORTATION IN KIND AND SUBSISTENCE EN ROUTE WOULD BE ALLOWED. IN OTHER WORDS, GOVERNMENT TRANSPORTATION WOULD HAVE BEEN FURNISHED YOU HAD YOU CHOSEN TO RETURN HOME WHEN YOU WERE DISCHARGED FROM THE ARMY. PARAGRAPH 47C OF ARMY REGULATIONS 35-4810 PROVIDED THAT WHERE THE INDIVIDUAL DID NOT DESIRE TO AVAIL HIMSELF OF GOVERNMENT TRANSPORTATION AT TIME OF SEPARATION, IT WAS CONSIDERED THAT THE GOVERNMENT HAD DISCHARGED ITS OBLIGATION AND WOULD NOT AT A LATER DATE FURNISH SUCH TRANSPORTATION.

WITH REGARD TO THE REMAINING PART OF YOUR CLAIM FOR TRAVEL ALLOWANCE FROM NEW YORK, NEW YORK, TO SAN JACINTO, CALIFORNIA, PARAGRAPH 43 OF ARMY REGULATIONS 35-4810 PROVIDED THAT TRAVEL ALLOWANCE OF AN ENLISTED MEMBER OF THE REGULAR ARMY ON DISCHARGE FROM THE SERVICE WOULD BE PAID (EXCLUDING SEA TRAVEL) TO EITHER THE PLACE OF ACCEPTANCE FOR ENLISTMENT OR HOME SUBJECT TO THE ELECTION OF THE MEMBER. IN VIEW OF A REPORT FROM THE DEPARTMENT OF THE ARMY THAT NO RECORD WAS FOUND TO SHOW WHETHER YOU HAD MADE AN ELECTION TO RECEIVE TRAVEL ALLOWANCE TO CAMP WOLTERS, TEXAS, WHERE YOU ENLISTED IN THE REGULAR ARMY, IT APPEARS THAT AN ADDITIONAL AMOUNT IS DUE BASED ON THE DIFFERENCE BETWEEN THE AMOUNT OF $87.75 WHICH YOU HAVE BEEN PAID FOR TRAVEL AND THE AMOUNT DETERMINED TO BE DUE AT THE RATE OF 5 CENTS PER MILE FOR THE DISTANCE FROM NEW YORK, NEW YORK, TO SAN JACINTO, CALIFORNIA, YOUR HOME OF RECORD AT THE TIME OF YOUR ENLISTMENT.

THE RECORD SHOWS THAT PURSUANT TO A PETITION FILED BY OREN S. BANKS, 1282 EAST CHESTNUT STREET, KANKAKEE, ILLINOIS, ON JANUARY 27, 1956, IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ILLINOIS, HE WAS ADJUDGED A BANKRUPT. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT IS ASSUMED THAT THESE PROCEEDINGS RELATED TO YOU. HOWEVER, THE RECORD DOES NOT SHOW WHETHER YOUR CLAIM FOR TRAVEL ALLOWANCE AT THE TIME OF YOUR DISCHARGE FROM THE ARMY WAS LISTED AS AN ASSET IN THE PETITION FOR BANKRUPTCY OR WHETHER AN EXEMPTION FROM THE CLAIMS OF CREDITORS WAS ASSERTED ON ACCOUNT OF THE ALLOWANCE. IT DOES NOT APPEAR THAT THE TRUSTEE IN THE BANKRUPTCY PROCEEDINGS REQUESTED PAYMENT OF YOUR CLAIM AND THE PRESENT STATUS OF SUCH PROCEEDINGS IS NOT KNOWN. EVEN IF THE PROCEEDINGS ARE CLOSED, SECTION 11 (A) (8) OF TITLE 11 OF THE UNITED STATES CODE AUTHORIZES COURTS OF BANKRUPTCY TO REOPEN ESTATES FOR CAUSE SHOWN. ADDITIONALLY, THE RECOVERY OF PREVIOUSLY UNADMINISTERED ASSETS OF AN ESTATE CONSTITUTES THE "CAUSE SHOWN" REQUIRED BY THE CODE AS A PREREQUISITE FOR REOPENING AND IS NOT FORECLOSED BY THE STATUTORY PERIOD OF TWO YEARS TO WHICH SUIT BY THE TRUSTEE IS LIMITED. TUFFY V. NICHOLS, 120 F.2D 906, CERTIORARI DENIED, 314 U.S. 660; CORN EXCHANGE BANK TRUST CO. V. EMPIRE TRUST CO., 206 F.2D 30.

THEREFORE, UNLESS IT SHOULD BE ESTABLISHED THAT YOU ARE NOT THE PERSON INVOLVED IN THE BANKRUPTCY PROCEEDINGS, THE AMOUNT DUE APPEARS TO BE SUBJECT TO CLAIM BY THE TRUSTEE IN BANKRUPTCY, AND IN THE INTEREST OF SECURING A VALID ACQUITTANCE TO THE UNITED STATES, WE WOULD ONLY BE JUSTIFIED IN PAYING THE BALANCE DUE ON YOUR CLAIM FOR TRAVEL ALLOWANCE TO THE TRUSTEE IN THE BANKRUPTCY PROCEEDINGS OR TO YOU PURSUANT TO A DETERMINATION BY THE BANKRUPTCY COURT.