B-165062, SEPT. 11, 1968

B-165062: Sep 11, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

GAUDENCIO OLIVO: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23. " YOU STATED THAT YOU WERE ASSIGNED TO THE NATIONAL GUARD OF THE UNITED STATES AND OF THE TERRITORY OF HAWAII FROM 1917 TO 1922. THAT WHEN YOU RETURNED TO YOUR HOME IN HAWAII YOU WERE DISCHARGED UNDER HONORABLE CONDITIONS. THAT YOU FAILED TO APPLY FOR YOUR "SEPARATION PAY" BECAUSE YOU WERE UNAWARE OF SUCH BENEFIT. FORWARDED YOUR LETTER AND ATTACHMENTS TO OUR CLAIMS DIVISION FOR CONSIDERATION AND IT WAS RECEIVED IN THAT DIVISION ON JANUARY 2. SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE YEAR 1922 WHEN YOU WERE DISCHARGED FROM THE NATIONAL GUARD. ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

B-165062, SEPT. 11, 1968

TO MR. GAUDENCIO OLIVO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1968, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR "SEPARATION PAY" BELIEVED TO BE DUE UPON YOUR DISCHARGE AS AN ENLISTED MEMBER OF A UNIT OF THE NATIONAL GUARD, TERRITORY OF HAWAII, IN THE YEAR 1922.

OUR RECORDS SHOW THAT IN A LETTER DATED OCTOBER 14, 1967, ADDRESSED TO "OFFICER-IN-CHARGE, UNITED STATES FOREIGN SERVICE OFFICE," YOU STATED THAT YOU WERE ASSIGNED TO THE NATIONAL GUARD OF THE UNITED STATES AND OF THE TERRITORY OF HAWAII FROM 1917 TO 1922, THAT WHEN YOU RETURNED TO YOUR HOME IN HAWAII YOU WERE DISCHARGED UNDER HONORABLE CONDITIONS, AND THAT YOU FAILED TO APPLY FOR YOUR "SEPARATION PAY" BECAUSE YOU WERE UNAWARE OF SUCH BENEFIT. IN SUPPORT OF YOUR STATEMENTS, YOU FURNISHED COPIES OF SEVERAL DOCUMENTS AND PAPERS INCLUDING THOSE PERTAINING TO YOUR APPOINTMENT AS A SERGEANT ON SEPTEMBER 6, 1917, AND PROMOTION TO FIRST SERGEANT ON OCTOBER 9, 1922.

THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FORWARDED YOUR LETTER AND ATTACHMENTS TO OUR CLAIMS DIVISION FOR CONSIDERATION AND IT WAS RECEIVED IN THAT DIVISION ON JANUARY 2, 1968. SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE YEAR 1922 WHEN YOU WERE DISCHARGED FROM THE NATIONAL GUARD, TERRITORY OF HAWAII (THE YEAR YOUR CLAIM ACCRUED), THE CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AND IN AN ACCOMPANYING LETTER DATED JANUARY 12, 1968, ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION. THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. * *

ON FEBRUARY 22, 1968, YOU ADDRESSED A LETTER TO THE ARMY FINANCE CENTER, THE CONTENT THEREOF BEING ALMOST IDENTICAL WITH THAT IN YOUR LETTER OF OCTOBER 14, 1967, AND THAT LETTER, TOO, WAS FORWARDED HERE FOR REPLY. LETTER DATED APRIL 30, 1968, OUR CLAIMS DIVISION FULLY ADVISED YOU REGARDING THE APPLICATION OF THE 1940 LAW IN YOUR CASE AND FURTHER THAT THIS OFFICE IS WITHOUT AUTHORITY TO MAKE ANY EXCEPTION TO ITS PROVISIONS.

IN YOUR LETTER OF JULY 23, 1968, YOU REFER TO OFFICE LETTER OF JANUARY 12, 1968, AND YOU URGE FAVORABLE CONSIDERATION OF YOUR CLAIM.

SINCE IT IS EVIDENT THAT YOU MAY NOT HAVE RECEIVED OFFICE LETTER OF APRIL 30, 1968, A COPY IS ENCLOSED. AS TO "SEPARATION PAY" WHICH YOU BELIEVE IS DUE YOU, WE ARE UNAWARE OF ANY PROVISION OF LAW WHICH ENTITLED MEMBERS OF THE UNITED STATES ARMY AND ITS COMPONENTS, UPON THEIR DISCHARGE IN THE YEAR 1922, TO SPECIAL PAY AND ALLOWANCES WHICH YOU CLASSIFY AS "SEPARATION PAY.'

IT MAY BE THAT YOU HAVE IN MIND THE $60 DISCHARGE GRATUITY (BONUS) WHICH WAS AUTHORIZED BY THE ACT OF FEBRUARY 24, 1919, 40 STAT. 1151, AND WHICH WAS PAYABLE TO PERSONS WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES DURING WORLD WAR I. IRRESPECTIVE OF WHETHER OR NOT YOU RECEIVED SUCH DISCHARGE GRATUITY OR ALL PAY AND ALLOWANCES DUE YOU UPON DISCHARGE IN 1922, THE FACT REMAINS THAT YOU DID NOT FILE A CLAIM UNTIL AFTER THE LAPSE OF A PERIOD OF 45 YEARS FROM THE TIME YOUR CLAIM ACCRUED. HENCE, IN SUCH INSTANCE THERE IS FOR APPLICATION THE ABOVE-MENTIONED ACT OF OCTOBER 9, 1940. THAT ACT SPECIFICALLY PRECLUDES THIS OFFICE FROM CONSIDERING CLAIMS AGAINST THE UNITED STATES GOVERNMENT IF NOT RECEIVED HERE WITHIN THE PRESCRIBED 10 YEAR LIMITATION PERIOD AFTER THE CLAIM FIRST ACCRUED.

IN VIEW OF THE CLEAR AND UNAMBIGUOUS PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AND INASMUCH AS YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE WITHIN 10 YEARS AFTER THE DATE OF ITS ACCRUAL, WE MUST ADVISE YOU THAT WE ARE PRECLUDED FROM CONSIDERING THAT CLAIM AND, ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN IN THE MATTER.