B-176130, JUL 10, 1972

B-176130, JUL 10, 1972

MILITARY PERSONNEL - BACK PAY - ENTITLEMENT - BARRING ACT DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF ROBERT C. LARGIN FOR BACK PAY INCIDENT TO HIS ARMY SERVICE FROM AUGUST 1942 UNTIL NOVEMBER 1945. SINCE MR. LARGIN'S CLAIM WAS FIRST RECEIVED BY GAO MORE THAN TEN YEARS AFTER CLAIMANT'S DISCHARGE FROM MILITARY SERVICE, IT IS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A.

TO MR. ROBERT C. LARGIN:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 29, 1972, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES AND SUBSEQUENTLY REFERRED TO THIS OFFICE CONCERNING YOUR CLAIM FOR PAY BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY FROM AUGUST 1942 UNTIL NOVEMBER 1945.

OUR FILE SHOWS THAT ON SEPTEMBER 3, 1958, YOU WROTE TO THE PRESIDENT OF THE UNITED STATES CLAIMING BACK PAY FOR YOUR SERVICE IN THE UNITED STATES ARMY FOR THE PERIOD AUGUST 1942 UNTIL SEPTEMBER 1945. THAT CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION AND WAS RECEIVED ON SEPTEMBER 26, 1958.

ON SEPTEMBER 26, 1958, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM THE DATE OF YOUR DISCHARGE FROM THE MILITARY SERVICE. SINCE THE FILE DID NOT SHOW THAT YOU HAD FILED AN EARLIER CLAIM WITH THIS OFFICE FOR PAY DUE ON DISCHARGE, THE CLAIMS DIVISION ADVISED YOU IN A LETTER DATED OCTOBER 6, 1958, THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, A COPY OF WHICH WAS FURNISHED TO YOU. ALSO, AS REQUIRED BY THAT ACT, THE CLAIM WAS RETURNED TO YOU.

THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, READS 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; ***.

"(2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION."

BY LETTER DATED JANUARY 29, 1971, YOU AGAIN WROTE THE PRESIDENT OF THE UNITED STATES CONCERNING YOUR CLAIM FOR PAY. OUR CLAIMS DIVISION REPLIED TO YOU ON APRIL 28, 1971, AGAIN STATING THAT YOUR CLAIM WAS BARRED, SINCE IT HAD NOT BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS AFTER THE CLAIM FIRST ACCRUED.

ON FEBRUARY 26, 1971, YOU WROTE THE VETERANS ADMINISTRATION AND ON JULY 26, 1971, YOU WROTE THE CLAIMS DIVISION, DEPARTMENT OF THE ARMY, CONCERNING YOUR CLAIM FOR PAY DUE YOU, WITH BOTH LETTERS BEING REFERRED TO OUR CLAIMS DIVISION. ON DECEMBER 30, 1971, THE CLAIMS DIVISION RESPONDED TO THE ABOVE LETTERS BY AGAIN EXPLAINING THAT YOUR CLAIM WAS BARRED PURSUANT TO THE ACT OF OCTOBER 9, 1940.

ON JANUARY 29, 1972, YOU ONCE AGAIN WROTE TO THE PRESIDENT OF THE UNITED STATES CONCERNING YOUR CLAIM FOR BACK PAY AND YOUR LETTER HAS BEEN REFERRED TO THIS OFFICE FOR REPLY.

THE SOLE PROVISION OF LAW WHICH GOVERNS THE DISPOSITION OF YOUR CLAIM FOR BACK PAY INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY IS THE ACT OF OCTOBER 9, 1940. THAT ACT SPECIFICALLY PRECLUDES THIS OFFICE FROM CONSIDERING CLAIMS SUCH AS YOURS AGAINST THE UNITED STATES IF THOSE CLAIMS ARE NOT RECEIVED HERE WITHIN THE PRESCRIBED 10-YEAR LIMITATION PERIOD AFTER THE CLAIM FIRST ACCRUED.

YOUR CLAIM ACCRUED ON EITHER SEPTEMBER 6 OR NOVEMBER 6, 1945 (YOU GIVE BOTH DATES IN YOUR VARIOUS LETTERS), THE DATE OF YOUR SEPARATION FROM THE MILITARY SERVICE, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED THE CLAIM PRIOR TO NOVEMBER 6, 1955 (TAKING THE LATER DISCHARGE DATE). SINCE IT WAS FIRST RECEIVED HERE ON SEPTEMBER 26, 1958, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO ADVISE YOU THAT CONSIDERATION THEREOF WAS BARRED. ACCORDINGLY, THERE IS NO FURTHER ACTION THAT WE CAN TAKE ON YOUR CLAIM AND FURTHER CORRESPONDENCE WILL SERVE NO USEFUL PURPOSE.