B-170443, NOV 25, 1974

B-170443, NOV 25, 1974

DECISION DENYING CONSIDERATION OF THAT PART OF CLAIM FOR ACTIVE DUTY PAY BARRED BY THE ACT OF OCTOBER 9, 1940, IS SUSTAINED, NOTWITHSTANDING CLAIMANT HAD EARLIER FILED A CLAIM WITH THE ADMINISTRATIVE OFFICE SINCE SUCH FILING DOES NOT COMPLY WITH THE PROVISION OF THE BARRING ACT WHICH REQUIRES FILING CLAIMS IN THE GENERAL ACCOUNTING OFFICE. HOWEVER, IN VIEW OF ADDITIONAL EVIDENCE SUBMITTED THE UNBARRED PART OF THE CLAIM MAY NOW BE GIVEN FURTHER CONSIDERATION.

COLONEL CLANTON W. WILLIANS, USAF, RETIRED CLAIM FOR ADDITIONAL PAY:

THIS ACTION IS IN RESPONSE TO LETTERS DATED JULY 17 AND AUGUST 22, 1974, FROM COLONEL CLANTON W. WILLIAMS, USAF, RETIRED, FURNISHING ADDITIONAL EVIDENCE AND REQUESTING RECONSIDERATION OF DECISION B 170443, AUGUST 12, 1970, WHICH SUSTAINED THE DISALLOWANCE OF HIS CLAIM FOR ADDITIONAL BASIC PAY WHICH HE BELIEVES DUE BASED ON CREDITABLE ENLISTED SERVICE DURING THE PERIOD APRIL 22, 1924, TO FEBRUARY 3, 1926 NOT PREVIOUSLY CONSIDERED IN DETERMINING THE AMOUNT OF SUCH PAY.

IN THE AUGUST 12, 1970 DECISION IT WAS HELD IN EFFECT THAT THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, BARS CONSIDERATION OF ANY PART OF COLONEL WILLIAMS' CLAIM WHICH ACCRUED PRIOR TO OCTOBER 23, 1959, WHICH IS TEN YEARS PRIOR TO THE DATE (OCTOBER 23, 1969) HIS CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE. THE AUGUST 12, 1970 DECISION ALSO INDICATED THAT FOR THE GENERAL ACCOUNTING OFFICE TO GIVE FURTHER CONSIDERATION TO THAT PART OF COLONEL WILLIAMS' CLAIM WHICH IS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, IT WOULD BE NECESSARY FOR HIM TO FURNISH INFORMATION REGARDING HIS SERVICE IN THE AIR FORCE RESERVE, WITH PARTICULAR REFERENCE TO THE UNIT WITH WHICH HE SERVED AND WHERE HE PERFORMED ACTIVE DUTY FOR TRAINING DURING THE PERIODS OF NOVEMBER 12-14, 1959, JUNE 5-19, 1960, AUGUST 30-SEPTEMBER 13, 1960, AUGUST 31-SEPTEMBER 14, 1961, AND JULY 9 23, 1962.

IN HIS JULY 17, 1974 LETTER COLONEL WILLIAMS QUESTIONS THE DENIAL OF CONSIDERATION OF PART OF HIS CLAIM BASED ON THE DATE OF THE RECEIPT OF HIS CLAIM IN THE GENERAL ACCOUNTING OFFICE (OCTOBER 23, 1969) RATHER THAN THE DATE HE APPARENTLY FILED A REQUEST FOR CORRECTION OF HIS MILITARY RECORDS WITH THE AIR FORCE ON OR ABOUT JANUARY 23, 1967, PRESUMABLY ALSO CONCERNING THE SERVICE FOR WHICH HE CLAIMS CREDIT.

THE ACT OF OCTOBER 9, 1940, SUPRA, PROVIDES IN PERTINENT PART AS FOLLOWS:

"(1) EVERY CLAIM OF 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 ***."

THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, SUPRA, UPON THE CONSIDERATION OF CLAIMS BY THIS OFFICE, IS NOT A MERE STATUTE OF LIMITATION BUT IT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE THE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. COMPARE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F. 2D 154 (7TH CIR. 1932), AND CARPENTER V. UNITED STATES, 56 F. 2D 828 (2D CIR. 1932). THE ABOVE QUOTED ACT EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF A CLAIM "RECEIVED IN SAID OFFICE" LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. CONSEQUENTLY, THE GENERAL ACCOUNTING OFFICE CAN MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE. AND, IT HAS LONG BEEN HELD THAT THE FILING OF A CLAIM IN THE ADMINISTRATIVE OFFICE CONCERNED DOES NOT MEET THE REQUIREMENTS OF THE BARRING ACT THAT SUCH CLAIM BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE. SEE 32 COMP. GEN. 267 (1952). THEREFORE, THE FACT THAT COLONEL WILLIAMS MAY HAVE FILED AN APPLICATION FOR CORRECTION OF HIS MILITARY RECORDS OR OTHER CLAIM WITH THE AIR FORCE DID NOT REMOVE HIS CLAIM FROM THE OPERATION OF THE 1940 ACT.

ACCORDINGLY, THE ACTION HERETOFORE TAKEN IN DENYING COLONEL WILLIAMS' CLAIM FOR THE PERIOD PRIOR TO OCTOBER 23, 1959, WAS IN ACCORDANCE WITH THE PROVISIONS OF THE SAID ACT OF OCTOBER 9, 1940, AND NO FURTHER ACTION CAN BE TAKEN IN THAT MATTER BY THIS OFFICE.

WITH HIS LETTER OF AUGUST 22, 1974, COLONEL WILLIAMS SUBMITTED COPIES OF DOCUMENTS EVIDENCING PERIODS OF ACTIVE DUTY SUBSEQUENT TO OCTOBER 23, 1959. AS WAS INDICATED IN THE AUGUST 12, 1970 DECISION, FURTHER CONSIDERATION WILL NOW BE GIVEN TO THAT PART OF THE CLAIM NOT BARRED BY THE ACT OF OCTOBER 9, 1940.

WITH REGARD TO THE ABOVE, INSTRUCTIONS ARE BEING ISSUED TO OBTAIN TRANSCRIPTS OF COLONEL WILLIAMS' PAY RECORDS TO DETERMINE WHETHER HE HAS BEEN PROPERLY PAID FOR SUCH PERIODS. HE WILL BE NOTIFIED, IN DUE COURSE, OF THE RESULT OF SUCH REVIEW.