B-180143, FEB 26, 1974

B-180143: Feb 26, 1974

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BECAUSE CHECKS NOT CARRIED ON TREASURY DEPARTMENT'S OUTSTANDING CHECK LIST WERE PRESUMED PAID AND UNDER 31 U.S.C. 122 IN ACCORD WITH SOLDIERS' AND SAILORS' CIVIL RELIEF ACT. CLAIM NOT FILED WITH GAO OR TREASURER OF THE UNITED STATES WITHIN 6 YEARS AFTER DATE OF DISCHARGE FROM ACTIVE SERVICE IS BARRED. COVENY: FURTHER REFERENCE IS MADE TO THE LETTER OF FRANK E. YOUR CLAIM WAS DENIED BY LETTER OF MAY 15. WE HAVE ALSO RECEIVED AN INQUIRY IN THIS REGARD FROM THE OFFICE OF THE HONORABLE JAMES M. WERE DISCOVERED UNCASHED IN A SAFE DEPOSIT BOX. HE WAS INFORMED THAT YOU SHOULD BE ADVISED TO RETURN ALL CHECKS TO THE FINANCE CENTER IN ORDER THAT APPROPRIATE ACTION COULD BE TAKEN REGARDING THEM. ALTHOUGH THE RECORD IS UNCLEAR AS TO WHAT ACTUALLY HAPPENED TO THE REMAINING SIX CHECKS.

B-180143, FEB 26, 1974

MEMBER'S CLAIM RECEIVED BY GAO IN OCTOBER 1971 FOR PROCEEDS OF ALLOTMENT CHECKS ISSUED TO DECEASED GRANDMOTHER IN 1951, DISALLOWED, BECAUSE CHECKS NOT CARRIED ON TREASURY DEPARTMENT'S OUTSTANDING CHECK LIST WERE PRESUMED PAID AND UNDER 31 U.S.C. 122 IN ACCORD WITH SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, 50 U.S.C. APP. 525, CLAIM NOT FILED WITH GAO OR TREASURER OF THE UNITED STATES WITHIN 6 YEARS AFTER DATE OF DISCHARGE FROM ACTIVE SERVICE IS BARRED.

TO MR. WILLIAM E. COVENY:

FURTHER REFERENCE IS MADE TO THE LETTER OF FRANK E. VISCO, ATTORNEY AT LAW, DATED OCTOBER 18, 1973, WITH ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR THE PROCEEDS OF SEVEN ALLOTMENT CHECKS ISSUED IN 1951 TO MARY L. COVENY, YOUR GRANDMOTHER, AND ALLEGEDLY RETURNED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FOR REFUND SUBSEQUENT TO YOUR SEPARATION FROM THE UNITED STATES ARMY IN 1952. YOUR CLAIM WAS DENIED BY LETTER OF MAY 15, 1973, FROM OUR TRANSPORTATION AND CLAIMS DIVISION.

WE HAVE ALSO RECEIVED AN INQUIRY IN THIS REGARD FROM THE OFFICE OF THE HONORABLE JAMES M. HANLEY, HOUSE OF REPRESENTATIVES.

IT APPEARS FROM THE RECORD BEFORE US, SEVEN CLASS "E" ALLOTMENT CHECKS TOTALING $300, ISSUED FROM FEBRUARY 8 TO JULY 1, 1951, AND PAYABLE TO MARY L. COVENY, YOUR GRANDMOTHER, SUBSEQUENT TO HER DEATH ON OCTOBER 16, 1950, WERE DISCOVERED UNCASHED IN A SAFE DEPOSIT BOX. IT FURTHER APPEARS THAT UPON YOUR REQUEST, MR. WILLIAM S. COOK, THE STATE VETERANS' COUNSELOR IN HERKIMER, NEW YORK, ON AUGUST 1, 1951, RETURNED ONE OF THESE CHECKS, FOR $100 (NO. 26,656,051, DATED JULY 1, 1951), TO THE ARMY FINANCE CENTER, ST. LOUIS, MISSOURI, DUE TO AN APPARENT OVERPAYMENT. BY RETURN LETTER DATED AUGUST 22, 1951, HE WAS INFORMED THAT YOU SHOULD BE ADVISED TO RETURN ALL CHECKS TO THE FINANCE CENTER IN ORDER THAT APPROPRIATE ACTION COULD BE TAKEN REGARDING THEM. ALTHOUGH THE RECORD IS UNCLEAR AS TO WHAT ACTUALLY HAPPENED TO THE REMAINING SIX CHECKS, IN YOUR LETTER OF DECEMBER 18, 1971, TO THE FINANCE CENTER, U.S. ARMY, YOU SAID THAT YOU TOOK THEM TO MR. COOK'S OFFICE IN HERKIMER, NEW YORK, AND THAT AFTER FURNISHING YOU WITH A LIST OF THE NUMBERS OF THE CHECKS RECEIVED, THE COUNSELOR PROMISED TO RETURN THEM TO THE FINANCE CENTER FOR REISSUANCE IN YOUR NAME.

LETTER FROM OUR TRANSPORTATION AND CLAIMS DIVISION DATED MAY 15, 1973, DISALLOWED YOUR CLAIM FOR REFUND OF THE PROCEEDS OF THE ALLOTMENT CHECKS BECAUSE DEPARTMENT OF THE TREASURY RECORDS SHOWED THAT THEY WERE NOT CARRIED ON THEIR OUTSTANDING CHECK LIST, AND WERE PRESUMED, THEREFORE, TO HAVE BEEN PAID. WE ALSO STATED THAT THE CLAIM WAS BARRED BECAUSE IT WAS NOT FILED WITH THE GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECKS AS REQUIRED BY LAW.

IN HIS LETTER OF OCTOBER 18, 1973, TO THE GENERAL ACCOUNTING OFFICE YOUR ATTORNEY, MR. VISCO, INDICATED THAT YOUR CLAIM WAS MADE WITHIN THE SIX- YEAR STATUTE OF LIMITATIONS AND TO SUBSTANTIATE HIS CONTENTION ATTACHED AN AFFIDAVIT EXECUTED BY YOU ON JULY 26, 1951, AS WELL AS OTHER CORRESPONDENCE CONCERNING THE CHECKS IN QUESTION.

SECTION 122, TITLE 31 OF THE U.S.C. PROVIDES THAT:

"HEREAFTER ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR WARRANTS APPEARING FROM THE RECORDS OF THE GENERAL ACCOUNTING OFFICE OR THE TREASURY DEPARTMENT TO HAVE BEEN PAID, SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED. ***"

IN RESPONSE TO A REQUEST FOR A CHECK STATUS REPORT, THE TREASURER OF THE UNITED STATES ON APRIL 30, 1973, ADVISED OUR TRANSPORTATION AND CLAIMS DIVISION THAT THE SUBJECT CHECKS WERE NOT ON THE OUTSTANDING LIST. SINCE THE EXAMINATION OF SUCH LIST REVEALED THAT THE CHECKS WERE NOT INCLUDED THEREON, THE INDICATION IS THAT ON A PRIOR DATE THEY WERE EITHER PAID BY THE TREASURER OF THE UNITED STATES OR A SUBSTITUTE CHECK IN LIEU THEREOF HAD BEEN ISSUED. THEREFORE, YOUR CLAIM IS BARRED BY 31 U.S.C. 122 IF IT WAS NOT RECEIVED IN THIS OFFICE OR BY THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS FROM THE DATE OF YOUR SEPARATION FROM MILITARY SERVICE, APRIL 14, 1952, IN ACCORD WITH THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, 50 U.S.C. APP. 525, WHICH EXCLUDES THE PERIOD OF ACTIVE MILITARY SERVICE IN COMPUTING ANY PERIOD OF LIMITATIONS PROVIDED BY LAW FOR FILING CLAIMS AGAINST THE GOVERNMENT.

REGARDING THE AFFIDAVIT AND CORRESPONDENCE FORWARDED BY MR. VISCO IT MAY BE STATED THAT NEITHER YOUR AFFIDAVIT OF JULY 26, 1951, WHICH WAS NOTARIZED BY MR. COOK, THE STATE VETERANS' COUNSELOR, NOR HIS LETTER ON YOUR BEHALF DATED JULY 27, 1951, TO THE ARMY FINANCE CENTER, CONSTITUTED THE NOTICE OF CLAIM REQUIRED BY 31 U.S.C. 122, AS THIS STATUTE REQUIRES THAT THE CLAIM BE PRESENTED EITHER TO THE GENERAL ACCOUNTING OFFICE OR TO THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECKS INVOLVED. (IN ACCORD WITH 50 U.S.C. APP. 525, SIX YEARS AFTER TERMINATION OF YOUR ACTIVE SERVICE ON APRIL 14, 1952). THE FIRST NOTICE OF CLAIM RECEIVED IN THIS OFFICE WAS A LETTER ON YOUR BEHALF FROM MR. JAMES N. LEWIS, STATE VETERAN COUNSELOR, DATED JUNE 28, 1971, ADDRESSED TO THE FINANCE CENTER, U.S. ARMY, WHICH WAS RECEIVED IN THIS OFFICE ON OCTOBER 1, 1971. WE ARE NOT AWARE OF ANY CLAIM BEING FILED WITH THE TREASURER OF THE UNITED STATES.

FURTHERMORE, AS INDICATED IN TRANSPORTATION AND CLAIMS DIVISION LETTER OF FEBRUARY 15, 1972, TO YOU, THE FINANCE CENTER, U.S. ARMY, HAS ADVISED THIS OFFICE THAT THE PERTINENT ALLOTMENT RECORDS AND DISBURSING OFFICERS' ACCOUNTS HAVE BEEN DESTROYED PURSUANT TO LAW. IN SUCH CIRCUMSTANCES, IN THE ABSENCE OF CLEAR AND SATISFACTORY EVIDENCE OF VALIDITY AND NONPAYMENT, EVEN WHERE A CLAIM IS NOT OTHERWISE BARRED, FAVORABLE CONSIDERATION MAY NOT BE GIVEN TO SUCH CLAIM WHERE THE CLAIMANT HAS FAILED TO ACT ON IT FOR A LONG PERIOD OF YEARS.

ACCORDINGLY, IN VIEW OF THE ABOVE, NO FURTHER ACTION ON YOUR CLAIM CAN BE TAKEN BY OUR OFFICE, AND WE MUST SUSTAIN THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING YOUR CLAIM FOR REIMBURSEMENT.

WE ARE ADVISING CONGRESSMAN HANLEY OF OUR DECISION.