B-162523, OCT. 10, 1967

B-162523: Oct 10, 1967

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FORMER ARMY ENLISTED MAN WHO WAS DISCHARGED ON JULY 2. MUST HAVE CONSIDERATION OF CLAIM DENIED IN ACCORDANCE WITH THE ACT OF OCT. 9. DOMINGO CRUZ SANTIAGO: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 6. THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JULY 26 AND SEPTEMBER 1. IN WHICH YOU WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY THIS OFFICE BY VIRTUE OF THE PROVISIONS OF THE ACT OF OCTOBER 9. THAT YOU STILL HAVE A CLAIM OUTSTANDING FOR ADDITIONAL COMBAT DUTY PAY AS WELL AS OTHER PAY AND ALLOWANCES DUE FOR FIVE MONTHS OF YOUR SERVICE IN KOREA. YOU THEREFORE CLAIM THAT THE BARRING ACT IS INAPPLICABLE TO YOUR CASE. A SEARCH OF OUR FILES SHOWS NO RECORD OF OUR RECEIVING ANY CLAIM FROM YOU PRIOR TO YOUR CLAIM FOR PAY AND ALLOWANCES AND COMBAT DUTY PAY WHICH WAS RECEIVED HERE JULY 14.

B-162523, OCT. 10, 1967

ARMED SERVICES - COMBAT DUTY PAY - STALE CLAIM DECISION TO FORMER ARMY ENLISTED MAN FOR COMBAT DUTY PAY FOR KOREAN SERVICE. FORMER ARMY ENLISTED MAN WHO WAS DISCHARGED ON JULY 2, 1953, AND DID NOT FILE CLAIM FOR COMBAT DUTY PAY WITH GAO UNTIL JULY 2, 1963, MUST HAVE CONSIDERATION OF CLAIM DENIED IN ACCORDANCE WITH THE ACT OF OCT. 9, 1940, 31 U.S.C. 71A.

TO MR. DOMINGO CRUZ SANTIAGO:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 6, 1967, CONCERNING YOUR CLAIM FOR PAY AND ALLOWANCES AND COMBAT DUTY PAY BELIEVED DUE YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY WHILE SERVING IN KOREA. THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JULY 26 AND SEPTEMBER 1, 1967, IN WHICH YOU WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY THIS OFFICE BY VIRTUE OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A.

IN CONNECTION WITH THAT ACT, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THIS OFFICE (THE GENERAL ACCOUNTING OFFICE).

YOU NOW CONTEND THAT YOU SUBMITTED A CLAIM FOR COMBAT DUTY PAY TO THIS OFFICE SOMETIME IN 1954 BUT RECEIVED ONLY A PORTION OF THE MONIES DUE YOU, AND THAT YOU STILL HAVE A CLAIM OUTSTANDING FOR ADDITIONAL COMBAT DUTY PAY AS WELL AS OTHER PAY AND ALLOWANCES DUE FOR FIVE MONTHS OF YOUR SERVICE IN KOREA. YOU THEREFORE CLAIM THAT THE BARRING ACT IS INAPPLICABLE TO YOUR CASE.

A SEARCH OF OUR FILES SHOWS NO RECORD OF OUR RECEIVING ANY CLAIM FROM YOU PRIOR TO YOUR CLAIM FOR PAY AND ALLOWANCES AND COMBAT DUTY PAY WHICH WAS RECEIVED HERE JULY 14, 1967. IT APPEARS, HOWEVER, THAT A PAYMENT WAS MADE TO YOU FOR COMBAT DUTY PAY BY THE DEPARTMENT OF THE ARMY ON APRIL 12, 1954, APPARENTLY IN RESPONSE TO AN EARLIER CLAIM FILED WITH THAT DEPARTMENT. PRESUMABLY, THE CLAIM TO WHICH YOU MAKE REFERENCE AS BEING SUBMITTED HERE IN 1954 WAS ACTUALLY SUBMITTED TO THE DEPARTMENT OF THE ARMY. THE FACT THAT YOU FILED A CLAIM WITH THAT OR ANOTHER AGENCY OF THE FEDERAL GOVERNMENT DOES NOT IN ANY WAY AFFECT THE OPERATION OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT EVERY CLAIM BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE BEFORE THE 10-YEAR PERIOD HAS ELAPSED IN ORDER FOR SUCH CLAIM TO BE RECOGNIZED AND ITS MERITS CONSIDERED.

SINCE YOU WERE DISCHARGED FROM MILITARY SERVICE ON JULY 2, 1953, AND YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE ON OR BEFORE JULY 2, 1963, CONSIDERATION THEREOF IS PRECLUDED BY LAW.

ACCORDINGLY, THE ACTION HERETOFORE TAKEN ON YOUR CLAIM IS SUSTAINED.