B-166388, MAR. 26, 1969

B-166388: Mar 26, 1969

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DAGURO: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7. CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE AS A MEMBER OF THE UNITED STATES ARMY FORCES FAR EAST FROM WHICH YOU WERE DISCHARGED ON FEBRUARY 26. YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JULY 31. THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT WE WERE PRECLUDED FROM CONSIDERING YOUR CLAIM BY THE ACT OF OCTOBER 9. THE DATE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JULY 31. YOU WERE AGAIN ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN 10 YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

B-166388, MAR. 26, 1969

TO MR. ANTONIO A. DAGURO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1969, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE AS A MEMBER OF THE UNITED STATES ARMY FORCES FAR EAST FROM WHICH YOU WERE DISCHARGED ON FEBRUARY 26, 1946.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JULY 31, 1968. ON AUGUST 28, 1968, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT WE WERE PRECLUDED FROM CONSIDERING YOUR CLAIM BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, SINCE MORE THAN 10 FULL YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE ON FEBRUARY 26, 1946, AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JULY 31, 1968.

BY LETTER DATED OCTOBER 27, 1968, YOU WERE AGAIN ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN 10 YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU EVIDENTLY ACKNOWLEDGE THAT YOUR CLAIM IS BARRED BY LAW. YOU SAY, HOWEVER, THAT YOU WERE NOT INFORMED OF THE BARRING ACT OF OCTOBER 9, 1940, AND YOU URGE US TO WAIVE APPLICATION OF THE LAW IN YOUR CASE AND ALLOW YOUR CLAIM ON A MORAL AND EQUITABLE BASIS.

THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATION 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. THUS, THE LAW PRECLUDES OUR CONSIDERATION OF A BARRED CLAIM.

CONCERNING THE STATEMENT IN YOUR LETTER THAT THE BARRING ACT SHOULD NOT BE APPLIED IN YOUR CASE FOR THE REASON THAT YOU HAD NO KNOWLEDGE OF THE STATUTE, IT HAS BEEN HELD THAT, GENERALLY, LACK OF KNOWLEDGE OF THE EXISTENCE OF A CAUSE OF ACTION OR OF FACTS WHICH CONSTITUTE THE CAUSE, WILL NOT POSTPONE THE OPERATION OF THE STATUTE OF LIMITATIONS. THOMAS V UNITED STATES, 125 CT. CL. 76, AND ART CENTER SCHOOL V UNITED STATES, 136 CT. CL. 218. CONSEQUENTLY, 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. SEE 25 COMP. GEN. 670 AND 32 COMP. GEN. 267, COPIES ENCLOSED.

WHILE WE APPRECIATE YOUR FEELINGS, WE MUST COMPLY WITH THE FEDERAL STATUTES IN SETTLING ACCOUNTS OF MEMBERS OF THE UNIFORMED SERVICES. OUR OFFICE HAS NO AUTHORITY TO AUTHORIZE PAYMENT OF CLAIMS SOLELY ON A MORAL OR EQUITABLE BASIS.

ACCORDINGLY, SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER ACCRUAL, WE ARE PRECLUDED BY LAW FROM GIVING IT CONSIDERATION AND NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.

WE HOPE THIS LETTER WILL ENABLE YOU TO BETTER UNDERSTAND THE REASON WHY UNDER EXISTING LAWS FAVORABLE CONSIDERATION MAY NOT BE GIVEN YOUR CLAIM.