B-155914, FEB. 5, 1965

B-155914: Feb 5, 1965

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ALMINIANA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1. IT WAS RETURNED TO HIM WITH A COPY OF THE ACT OF OCTOBER 9. SINCE HE SAID IN HIS CLAIM THAT HE WAS DISCHARGED FROM THE PHILIPPINE SCOUTS ON APRIL 2. WAS THUS INFORMED THAT SINCE HIS CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS FROM THE TIME OF ACCRUAL. IT WAS FOREVER BARRED FROM CONSIDERATION. THAT SINCE YOUR HUSBAND'S CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN 10 YEARS FROM THE DATE IT FIRST ACCRUED. THERE WAS NO ALTERNATIVE BUT TO ADVISE YOU THAT THE CLAIM IS BARRED. THAT THE CLAIM IS BARRED AND THAT THE ACT OF OCTOBER 9. YOU ASK THAT THE REASONS WHY YOU BELIEVE YOUR CLAIM IS NOT BARRED BY THE ACT OF OCTOBER 9.

B-155914, FEB. 5, 1965

TO MRS. CASIMIRA C. ALMINIANA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1964, AND ENCLOSURE, REQUESTING REVIEW OF YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE YOUR LATE HUSBAND, ANTONINO ALMINIANA, INCIDENT TO HIS MILITARY SERVICE IN THE PHILIPPINE SCOUTS.

ON APRIL 1, 1960, OUR OFFICE RECEIVED FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, A CLAIM BY YOUR LATE HUSBAND FOR MUSTERING-OUT PAY, AND ON APRIL 21, 1960, IT WAS RETURNED TO HIM WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, SINCE HE SAID IN HIS CLAIM THAT HE WAS DISCHARGED FROM THE PHILIPPINE SCOUTS ON APRIL 2, 1949. WAS THUS INFORMED THAT SINCE HIS CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS FROM THE TIME OF ACCRUAL, APRIL 2, 1949, IT WAS FOREVER BARRED FROM CONSIDERATION. BY LETTER OF JULY 22, 1963, YOU ADVISED OUR OFFICE THAT YOUR HUSBAND DIED APRIL 29, 1960, WITHOUT KNOWING THE ACTION THAT HAD BEEN TAKEN ON HIS CLAIM FOR MUSTERING-OUT PAY AND REQUESTING OUR ATTENTION TO THE MATTER.

OUR CLAIMS DIVISION ADVISED YOU BY LETTER OF AUGUST 16, 1963, THAT SINCE YOUR HUSBAND'S CLAIM WAS NOT RECEIVED IN OUR OFFICE WITHIN 10 YEARS FROM THE DATE IT FIRST ACCRUED, APRIL 2, 1949, THERE WAS NO ALTERNATIVE BUT TO ADVISE YOU THAT THE CLAIM IS BARRED. IN REPLY TO YOUR LETTER OF NOVEMBER 2, 1963, REQUESTING RECONSIDERATION OF THE CLAIM, OUR CLAIMS DIVISION AGAIN ADVISED YOU ON DECEMBER 5, 1963, THAT THE CLAIM IS BARRED AND THAT THE ACT OF OCTOBER 9, 1940, DOES NOT GRANT THE GENERAL ACCOUNTING OFFICE ANY POWER TO MAKE AN EXCEPTION TO ITS PROVISIONS. YOU ASK THAT THE REASONS WHY YOU BELIEVE YOUR CLAIM IS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, AS STATED IN THE COPY OF YOUR LETTER OF JUNE 2, 1964, TO THE ARMY FINANCE CENTER, WHICH YOU FORWARDED TO OUR OFFICE WITH YOUR LETTER OF NOVEMBER 1, 1964, BE CONSIDERED IN THE REVIEW OF YOUR CLAIM.

UNDER THE PLAIN TERMS OF THE ACT OF OCTOBER 9, 1940, 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--- WHICH INCLUDES "ALL CLAIMS AND DEMANDS WHATEVER" AGAINST THE GOVERNMENT OF THE UNITED STATES (31 U.S.C. 71/--- IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THAT OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. ANY RIGHT YOUR HUSBAND MAY HAVE HAD TO MUSTERING-OUT PAY FOR HIS MILITARY SERVICE IN THE PHILIPPINE SCOUTS ACCRUED TO HIM ON APRIL 2, 1949, THE DATE OF HIS DISCHARGE. THE 10 -YEAR PERIOD IN HIS CASE EXPIRED APRIL 2, 1959, AND THERE IS NO RECORD OF ANY CLAIM BY HIM BEING RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE. ALSO, SINCE YOUR HUSBAND'S CLAIM WAS BARRED BY THE ACT BEFORE HIS DEATH, THERE COULD BE NO AMOUNT DUE HIS ESTATE FOR MUSTERING-OUT PAY TO WHICH YOU MIGHT BE ENTITLED.

THE PRIMARY PURPOSE OF THE ACT OF OCTOBER 9, 1940, WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING AND GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. SEE 25 COMP. GEN. 670; 32 COMP. GEN. 107 AND 267. THE LIMITATION PRESCRIBED BY THE STATUTE 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. ACCORDINGLY, NO MATTER HOW MERITORIOUS A CLAIM MAY BE, 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 BY OUR OFFICE.

SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, AS AMENDED, REFERRED TO IN YOUR LETTER OF JUNE 2, 1964, TO THE ARMY FINANCE CENTER, PROVIDES THAT THE PERIOD OF MILITARY SERVICE SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD NOW OR HEREAFTER TO BE LIMITED BY ANY LAW FOR THE BRINGING OF ANY ACTION BY OR AGAINST ANY PERSON IN MILITARY SERVICE OR BY OR AGAINST HIS HEIRS, EXECUTORS, ADMINISTRATORS, OR ASSIGNS, WHETHER SUCH CAUSE OF ACTION SHALL HAVE ACCRUED PRIOR TO OR DURING THE PERIOD OF SUCH SERVICE. YOUR HUSBAND, HOWEVER, WAS NOT IN THE MILITARY SERVICE AFTER APRIL 2, 1949, WHEN HE WAS DISCHARGED FROM THE PHILIPPINE SCOUTS AND HIS CLAIM ACCRUED. HENCE, THE INDICATED PROVISIONS OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940 DO NOT APPLY IN HIS CASE.

WE TRUST YOU WILL UNDERSTAND THAT FURTHER CONSIDERATION OF YOUR CLAIM IS PRECLUDED BY LAW AND THAT NO ACTION CAN NOW BE TAKEN IN THE MATTER BY OUR OFFICE.