B-159343, AUG. 24, 1966

B-159343: Aug 24, 1966

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PLOTKIN AND KAHN: REFERENCE IS MADE TO YOUR LETTER OF MAY 12. THE ACTION TAKEN WAS BASED ON THE ACT OF OCTOBER 9. IS NOT APPLICABLE TO THIS CASE ON THE THEORY THAT THE GOVERNMENT HAS BECOME A CUSTODIAN OR TRUSTEE OF THE DECEDENT'S RETIRED PAY AND THUS IS REQUIRED TO REMIT ALL THE UNPAID RETIRED PAY TO WHICH MR. WE CAN FIND NO BASIS FOR THE POSITION YOU HAVE TAKEN. THE RETIRED PAY WAS NOT PLACED IN A SEPARATE TRUST FUND ACCOUNT NOR WAS THERE AUTHORITY TO TAKE SUCH ACTION. HE RETAINED A LEGAL CLAIM FOR SUCH AMOUNTS AS WERE NOT BARRED BY THE ACT OF OCTOBER 9. THE ONLY PART WHICH COULD HAVE BEEN ALLOWED BY THIS OFFICE WOULD HAVE BEEN FOR RETIRED PAY DURING THE TEN YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF RECEIPT OF SUCH CLAIM IN THIS OFFICE.

B-159343, AUG. 24, 1966

TO WILLIAM F. REED, ESQUIRE, ARENT, FOX, KINTNER, PLOTKIN AND KAHN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1966, REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 19, 1966, WHICH DISALLOWED A PORTION OF THE CLAIM OF BERTHA M. PECK, ADMINISTRATRIX OF THE ESTATE OF GEORGE E. KIESLING, DECEASED, FOR RETIRED PAY COVERING THE PERIOD PRIOR TO FEBRUARY 21, 1956. THE ACTION TAKEN WAS BASED ON THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT READS IN PERTINENT PART:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * 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 * * *.'

YOU CONTEND THAT THE ACT OF OCTOBER 9, 1940, IS NOT APPLICABLE TO THIS CASE ON THE THEORY THAT THE GOVERNMENT HAS BECOME A CUSTODIAN OR TRUSTEE OF THE DECEDENT'S RETIRED PAY AND THUS IS REQUIRED TO REMIT ALL THE UNPAID RETIRED PAY TO WHICH MR. KIESLING BECAME ENTITLED DURING HIS LIFETIME.

WE CAN FIND NO BASIS FOR THE POSITION YOU HAVE TAKEN. AT NO TIME DID MR. KIESLING DEPOSIT ANY RETIRED PAY WITH ANY GOVERNMENT OFFICIAL TO BE HELD IN TRUST FOR HIS FUTURE BENEFIT. HE BECAME ENTITLED TO RETIRED PAY ON A DAY TO DAY BASIS AND WHEN HE INFORMED THE FINANCE OFFICER, U.S. ARMY, IN AUGUST 1950 THAT "I DO NOT WANT TO DRAW THIS; LET IT RIDE," AN ORDINARY DEBTOR-CREDITOR RELATIONSHIP CAME INTO EXISTENCE WITH RESPECT TO THE UNPAID RETIRED PAY AS IT BECAME DUE. THE RETIRED PAY WAS NOT PLACED IN A SEPARATE TRUST FUND ACCOUNT NOR WAS THERE AUTHORITY TO TAKE SUCH ACTION.

SINCE MR. KIESLING COULD WAIVE THE RECEIPT OF BUT NOT THE RIGHT TO RETIRED PAY (SEE 28 COMP. GEN. 675), HE RETAINED A LEGAL CLAIM FOR SUCH AMOUNTS AS WERE NOT BARRED BY THE ACT OF OCTOBER 9, 1940, AND HAD HE MADE A CLAIM IMMEDIATELY PRIOR TO HIS DEATH, THE ONLY PART WHICH COULD HAVE BEEN ALLOWED BY THIS OFFICE WOULD HAVE BEEN FOR RETIRED PAY DURING THE TEN YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF RECEIPT OF SUCH CLAIM IN THIS OFFICE. A REPRESENTATIVE OF HIS ESTATE HAS NO GREATER RIGHTS.

CONCERNING YOUR STATEMENT THAT THE STATUTE OF LIMITATIONS CAN BE USED ONLY AS A SHIELD AND NOT AS A SWORD, YOUR ATTENTION IS INVITED TO THE FACT THAT THE 1940 ACT LEAVES US NO CHOICE IN THE MATTER. OUR OFFICE IS NOT AUTHORIZED TO MAKE ANY EXCEPTIONS TO THE SPECIFIC PROVISIONS OF THE STATUTE NOR GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED.

THE ACT OF OCTOBER 9, 1940, REQUIRES THAT IN ORDER FOR A CLAIM TO BE RECOGNIZED AND ITS MERITS CONSIDERED BY THIS OFFICE, SUCH CLAIM MUST BE RECEIVED "IN SAID OFFICE" WITHIN TEN YEARS. ALTHOUGH YOU MAY HAVE ASSERTED A CLAIM ON OCTOBER 26, 1965, WITH THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, THE FIRST ACTUAL NOTICE THAT THIS OFFICE HAD OF ANY CLAIM BEING MADE ON BEHALF OF THE ESTATE OF GEORGE E. KIESLING, DECEASED, WAS THAT RECEIVED HERE FROM THE ARMY FINANCE CENTER ON FEBRUARY 21, 1966. ACCORDINGLY, SINCE PAYMENT HAS BEEN MADE TO BERTHA M. PECK, ADMINISTRATRIX OF THE ESTATE OF GEORGE E. KIESLING, DECEASED, IN THE AMOUNT OF $12,876.43 COVERING THE PERIOD ON AND AFTER FEBRUARY 21, 1956, FURTHER PAYMENT IS NOT AUTHORIZED AND THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED APRIL 19, 1966, IS SUSTAINED.