B-163600, MAR. 12, 1968

B-163600: Mar 12, 1968

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MAXIMO DURO: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 11. YOUR LETTER WAS REFERRED HERE FOR REPLY. YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JULY 17. FOR THE REASON THAT IT WAS NOT TIMELY RECEIVED AND CONSEQUENTLY WAS BARRED BY THE PROVISIONS OF THAT ACT. THE CLAIMS DIVISION ADVISED YOU THAT YOUR CLAIM COULD NOT BE CONSIDERED BECAUSE IT WAS BARRED BY THE ACT OF OCTOBER 9. YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE UNDER THE ACT OF OCTOBER 9. THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS 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-163600, MAR. 12, 1968

ARMED SERVICES - MUSTERING-OUT PAY - PHILIPPINE SCOUT DECISION DENYING CLAIM FOR MUSTERING-OUT PAY INCIDENT TO DISCHARGE FROM MILITARY SERVICE AS PHILIPPINE SCOUT ON APRIL 10, 1947, ON BASIS OF BARRED ACT.

TO MR. MAXIMO DURO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 11, 1967, TO THE CLAIMS DIVISION, SETTLEMENT OPERATIONS, FINANCE CENTER, U.S. ARMY, RELATIVE TO YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM THE MILITARY SERVICE AS A PHILIPPINE SCOUT ON APRIL 10, 1947. YOUR LETTER WAS REFERRED HERE FOR REPLY.

YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JULY 17, 1957, AND ON JULY 29, 1957, THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, FOR THE REASON THAT IT WAS NOT TIMELY RECEIVED AND CONSEQUENTLY WAS BARRED BY THE PROVISIONS OF THAT ACT. IN A LETTER DATED OCTOBER 18, 1957, THE CLAIMS DIVISION ADVISED YOU THAT YOUR CLAIM COULD NOT BE CONSIDERED BECAUSE IT WAS BARRED BY THE ACT OF OCTOBER 9, 1940.

IN YOUR PRESENT LETTER YOU CITE ADMINISTRATOR'S DECISIONS, VETERANS ADMINISTRATION, NO. 696 AND NO. 721, DATED MAY 15 AND SEPTEMBER 25, 1946, RESPECTIVELY. APPARENTLY, YOU BELIEVE THESE DECISIONS CONSTITUTE AUTHORITY FOR THE PAYMENT OF YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/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: * * *

"/2) WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

AS OUR CLAIMS DIVISION ADVISED YOU IN LETTER OF OCTOBER 18, 1957, YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE UNDER THE ACT OF OCTOBER 9, 1940, SINCE MORE THAN 10 FULL YEARS HAD ELAPSED BETWEEN APRIL 10, 1947, THE DATE OF YOUR DISCHARGE FROM THE SERVICE AND JULY 17, 1957, THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON 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. SEE BARTLESVILLE ZINC COMPANY V MELLON, 56 F.2D 154, AND CARPENTER V UNITED STATES, 56 F.2D 828. THE PROVISIONS OF THE STATUTE MAY NOT BE WAIVED NOR MAY ANY EXTENSION OF TIME WITHIN WHICH THE CLAIM MAY BE FILED BE GRANTED. COMP. GEN. 670; 32 COMP. GEN. 267. THE ADMINISTRATOR'S DECISIONS WHICH YOU CITE AFFORD NO BASIS FOR THE CONSIDERATION OF A BARRED CLAIM.

ACCORDINGLY, SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN TEN FULL YEARS AFTER ACCRUAL, WE TRUST YOU WILL UNDERSTAND THAT WE ARE PRECLUDED BY LAW FROM GIVING IT CONSIDERATION AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.