B-171778, FEB 10, 1971

B-171778, FEB 10, 1971

MUSTERING-OUT PAY DENIAL OF CLAIM FOR MUSTERING-OUT PAY ON BASIS THAT CLAIM IS BARRED BY 10 -YEAR LIMITATION PERIOD PRESCRIBED BY THE ACT OF OCTOBER 9, 1940. NOTWITHSTANDING THAT CLAIMANT WAS UNAWARE OF THE LAW PRESCRIBING A 10 YEAR LIMITATION PERIOD, THERE IS NO AUTHORITY BY WHICH GAO MAY WAIVE ANY OF THE PROVISIONS OF THE BARRING ACT AND THE CLAIM MUST BE DENIED.

TO MR. ANTONIO H. GIMEDA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 22, 1970, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM MILITARY SERVICE IN 1946.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED OCTOBER 25, 1968, AND FEBRUARY 19, 1969, IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT PROVIDES IN PERTINENT PART:

"EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED *** ."

IN CONNECTION WITH THE ABOVE-QUOTED ACT, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

YOU CONTEND THAT YOU WERE UNAWARE OF THE LAW BECAUSE YOU HAVE ALWAYS LIVED IN A REMOTE BARRIO OF THE PHILIPPINES AND FOR THIS REASON YOU REQUEST THAT ADDITIONAL CONSIDERATION BE GIVEN YOUR CLAIM.

CONSIDERATION BY THIS OFFICE OF CLAIMS FOR MUSTERING-OUT PAY ARE GOVERNED BY THE 1940 BARRING ACT. SINCE THERE IS NO AUTHORITY BY WHICH THIS OFFICE MAY WAIVE ANY OF THE PROVISIONS OF THE BARRING ACT OR MAKE ANY EXCEPTION TO THE TIME LIMITATION IMPOSED, THE FACT THAT YOU DID NOT KNOW OF THE PROVISIONS OF THAT ACT DOES NOT PROVIDE A LEGAL BASIS UPON WHICH THIS OFFICE MAY CONSIDER YOUR CLAIM.

IF YOU HAD A VALID CLAIM FOR MUSTERING-OUT PAY, SUCH CLAIM WOULD HAVE ACCRUED NO LATER THAN YOUR DATE OF DISCHARGE, WHICH YOU INDICATE TO BE MARCH 5, 1946. THEREFORE, IN ORDER FOR YOUR CLAIM FOR SUCH PAY TO BE CONSIDERED ON ITS MERITS IT WAS NECESSARY FOR IT TO HAVE BEEN RECEIVED HERE ON OR BEFORE MARCH 5, 1956. OUR FILE SHOWS THAT YOUR CLAIM FOR MUSTERING-OUT PAY WAS FIRST RECEIVED HERE ON SEPTEMBER 20, 1968, MORE THAN 22 YEARS AFTER THE DATE OF YOUR DISCHARGE.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE BARRING ACT, THERE IS NO ACTION WE MAY LEGALLY TAKE IN THE MATTER.