B-167568, FEB 17, 1972

B-167568: Feb 17, 1972

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GAO MAY NOT CONSIDER A CLAIM WHICH IS SUBMITTED MORE THAN TEN YEARS AFTER THE DATE IT FIRST ACCRUED. DONOVAN EDWARD RUBY: REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 12 AND DECEMBER 13. YOU CONTEND THAT YOU WERE NOT LEGALLY DISCHARGED FROM THE NAVY IN 1931. WAS RELEASED WITH AN UNDESIRABLE DISCHARGE ON DECEMBER 15. HE CLAIMS THE DISCHARGE WAS INVALID AND SEEKS ACTIVE DUTY PAY. AN ORDER WAS ENTERED DISMISSING THE ACTION. THE COURT CONCLUDES THAT PLAINTIFF'S ALLEGED CLAIM IS BARRED UNDER THE DOCTRINE OF RES JUDICATA AND BY THE STATUTE OF LIMITATIONS. NO. 373- 70) ON THE SAME CLAIM WAS DISMISSED BY THAT COURT BY ORDER DATED FEBRUARY 5. YOUR CLAIM FOR BACK PAY AND ALLOWANCES WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON OCTOBER 23.

B-167568, FEB 17, 1972

MILITARY PERSONNEL - REIMBURSEMENT OF PAY AND ALLOWANCES - BARRING ACT DECISION DENYING A CLAIM OF DONOVAN EDWARD RUBY FOR REIMBURSEMENT OF PAY AND ALLOWANCES INCIDENT TO CLAIMANT'S UNDESIRABLE DISCHARGE FROM ACTIVE DUTY AS A NAVY ENLISTED MAN. THE PRIOR DENIAL MUST BE SUSTAINED SINCE, UNDER 31 U.S.C. 71A, 237, GAO MAY NOT CONSIDER A CLAIM WHICH IS SUBMITTED MORE THAN TEN YEARS AFTER THE DATE IT FIRST ACCRUED.

TO MR. DONOVAN EDWARD RUBY:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 12 AND DECEMBER 13, 1971, CONCERNING YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE YOU INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS AN ENLISTED MAN, UNITED STATES NAVY, WITH AN UNDESIRABLE DISCHARGE ON DECEMBER 15, 1931.

YOU CONTEND THAT YOU WERE NOT LEGALLY DISCHARGED FROM THE NAVY IN 1931. YOU FURTHER STATE THAT THE FEDERAL COURTS DENIED YOUR CLAIM WITHOUT A FAIR HEARING AND THAT ON OCTOBER 26, 1971, THE UNITED STATES SUPREME COURT DENIED YOUR PETITION FOR A WRIT OF CERTIORARI.

PRIOR TO FILING YOUR CLAIM IN OUR OFFICE, YOU PETITIONED THE COURT OF CLAIMS (CT. CL. NO. 324-69) FOR THE RELIEF SOUGHT AND THAT COURT DISMISSED YOUR PETITION BY ORDER DATED NOVEMBER 26, 1969, WHICH READS AS FOLLOWS (QUOTING 189 CT. CL. 573, 574):

" *** PLAINTIFF, A FORMER ENLISTED MAN IN THE NAVY, WAS RELEASED WITH AN UNDESIRABLE DISCHARGE ON DECEMBER 15, 1931. HE CLAIMS THE DISCHARGE WAS INVALID AND SEEKS ACTIVE DUTY PAY. ON MAY 17, 1965, PLAINTIFF FILED A PETITION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, NO. 43638, IN WHICH HE MADE THE SAME ALLEGATIONS AS THOSE IN THE PETITION IN THIS COURT. THE DISTRICT COURT ON JUNE 17, 1965, GRANTED DEFENDANT'S MOTION TO DISMISS, AND ON AUGUST 3, 1965, AN ORDER WAS ENTERED DISMISSING THE ACTION. ON JUNE 2, 1966, THE COURT OF APPEALS FOR THE NINTH CIRCUIT DENIED PLAINTIFF'S APPEAL, 365 F. 2D 385, AND ON DECEMBER 19, 1966, THE SAME CIRCUIT DENIED PLAINTIFF'S APPEAL, 369 F. 2D 404, CERTIORARI ALSO BEING DENIED, 386 U.S. 1011 (1967). THE CASE COMES BEFORE THIS COURT ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. UPON CONSIDERATION THEREOF, TOGETHER WITH THE OPPOSITION THERETO, WITHOUT ORAL ARGUMENT, THE COURT CONCLUDES THAT PLAINTIFF'S ALLEGED CLAIM IS BARRED UNDER THE DOCTRINE OF RES JUDICATA AND BY THE STATUTE OF LIMITATIONS, 28 U.S.C. SEC 2501, CITING KIRK V UNITED STATES, 164 CT. CL. 738 (1964). ON NOVEMBER 26, 1969, THE COURT GRANTED DEFENDANT'S MOTION AND DISMISSED THE PETITION."

A SECOND PETITION FILED BY YOU IN THE COURT OF CLAIMS (CT. CL. NO. 373- 70) ON THE SAME CLAIM WAS DISMISSED BY THAT COURT BY ORDER DATED FEBRUARY 5, 1971.

YOUR CLAIM FOR BACK PAY AND ALLOWANCES WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON OCTOBER 23, 1970. SINCE SUCH CLAIM WAS NOT RECEIVED IN THIS OFFICE WITHIN 10 YEARS AFTER IT FIRST ACCRUED (DECEMBER 15, 1931) OUR CLAIMS DIVISION BY LETTER DATED NOVEMBER 30, 1970, PURSUANT TO LAW, RETURNED THE CLAIM TO YOU TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, 237. BY LETTER DATED NOVEMBER 10, 1971, OUR CLAIMS DIVISION EXPLAINED TO YOU IN DETAIL THE OPERATION OF THE 1940 BARRING ACT.

THE 1940 BARRING ACT FOREVER BARS CONSIDERATION BY THIS OFFICE OF, "EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED." SINCE IT APPEARS FROM THE PETITION FILED BY YOU IN THE COURT OF CLAIMS (CT. CL. NO. 324-69) THAT YOU WERE DENIED RELIEF BY THE BOARD FOR CORRECTION OF NAVAL RECORDS AND THE NAVY DISCHARGE REVIEW BOARD, YOUR CLAIM ACCRUED NOT LATER THAN DECEMBER 15, 1931, OVER 40 YEARS AGO, WE ARE PRECLUDED BY LAW FROM CONSIDERING THE CLAIM AND NO FURTHER ACTION CAN BE TAKEN BY OUR OFFICE.

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