B-180764, OCT 23, 1974

B-180764, OCT 23, 1974

1. ON APPEAL OF A GAO SETTLEMENT ISSUED IN 1953, FOR MILITARY PAY AND ALLOWANCES, WHICH CLAIM WAS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, BUT WHICH APPEAL INCLUDES A CLAIM FOR PAY AND ALLOWANCES FOR ANOTHER PERIOD NOT PREVIOUSLY COVERED BY A CLAIM OR CONSIDERED, SUCH SUPPLEMENTAL CLAIM MUST BE TREATED AS A NEW CLAIM FOR THE PURPOSES OF THE BARRING ACT, AND THEREFORE DENIED, SINCE MORE THAN 10 YEARS HAVE ELAPSED SINCE THE LAST DATE SUCH CLAIM COULD HAVE ACCRUED. 2.ARMY MEMBER'S CLAIM FOR ADDITIONAL ARREARS OF MILITARY PAY FOR THE PERIOD OCTOBER 1, 1945, AND APRIL 30, 1946, WHERE THE MATTER OF THAT CLAIM WAS THE SUBJECT OF AN EARLIER SETTLEMENT BY THE GAO, IS DENIED, SINCE ON THE RECORD THE MEMBER HAS RECEIVED FULL PAYMENT AS AUTHORIZED BY APPLICABLE LAW AND REGULATIONS.

CLAIM FOR ARREARS OF MILITARY PAY AND ALLOWANCES - LESLEY E. PETERSON:

THIS ACTION IS IN RESPONSE TO A LETTER FROM MR. LESLEY E. PETERSON, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED JANUARY 27, 1953, WHICH CERTIFIED THE PAYMENT DUE HIM FOR HIS CLAIM FOR ARREARS OF MILITARY PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 1, 1945, TO APRIL 30, 1946, IN THE AMOUNT OF $290.50.

MR. PETERSON CLAIMS THAT THE AMOUNT PAID HIM AT THAT TIME DOES NOT REPRESENT ALL OF THE MILITARY PAY WHICH HE WAS DUE, INCLUDING OVERSEAS JUMP PAY.

AT THE OUTSET IT IS OBSERVED THAT THE PERIOD APPARENTLY COVERED BY THE PRESENT CLAIM EXTENDS FROM OCTOBER 1, 1944, THROUGH MAY 31, 1946, WHEN THE CLAIMANT WAS DISCHARGED, WHEREAS HIS ORIGINAL CLAIM WAS FOR THE PERIOD OCTOBER 1, 1945, THROUGH MAY 31, 1946.

CLAIMS FOR ARREARS OF PAY AND ALLOWANCES INCIDENT TO MILITARY SERVICE ARE SUBJECT TO THE TIME LIMITATION IMPOSED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH PROVIDES IN PART:

"(1) 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 ***"

THE PRIMARY PURPOSE OF THIS STATUTE OF LIMITATIONS IS TO RELIEVE THE GOVERNMENT OF THE NECESSITY OF RETAINING AND REVIEWING OLD RECORDS, THUS AVOIDING HAVING TO CONSIDER AND ADJUDICATE CLAIMS WHICH HAVE BECOME STALE WITH THE PASSAGE OF TIME. NO MATTER HOW MERITORIOUS A CLAIM MAY BE, THIS OFFICE MAY MAKE NO EXCEPTION TO THE STATUTE NOR GRANT ANY EXTENSION OF THE TIME LIMITATION IMPOSED THEREBY WITHIN WHICH CLAIMS MAY BE CONSIDERED IN THIS OFFICE. B-167979, OCTOBER 30, 1969.

WITH REGARD TO THE MATTER OF THE PRESENT CLAIM, THE RECORD SHOWS THAT THE CLAIMANT WAS DISCHARGED FROM THE ARMY ON MAY 31, 1946. IF HE HAD A CLAIM FOR ARREARS OF PAY INCIDENT TO SUCH SERVICE, SUCH CLAIM ACCRUED NO LATER THAN HIS DATE OF DISCHARGE. OUR FILE SHOWS THAT THE FIRST NOTICE WE HAD OF ANY CLAIM FOR SUCH PAY FOR ANY PERIOD PRIOR TO OCTOBER 1, 1945, WAS RECEIVED HERE ON DECEMBER 12, 1973, MORE THAN 27 YEARS AFTER HIS DISCHARGE.

THEREFORE, SINCE ANY CLAIM FOR ARREARS OF PAY OTHER THAN THAT PREVIOUSLY SUBMITTED WOULD BE A NEW CLAIM, THEN BY VIRTUE OF THE PROVISIONS OF THE BARRING ACT, THIS OFFICE IS PRECLUDED FROM CONSIDERING IT AND OUR REVIEW WILL BE RESTRICTED TO THE CLAIM PREVIOUSLY EXAMINED AND SETTLED BY THE AFOREMENTIONED DIVISION OF THIS OFFICE.

THE RECORDS ON FILE IN THIS OFFICE INDICATE THAT THE CLAIMANT QUALIFIED AS A PARACHUTIST IN THE UNITED STATES ARMY ON SEPTEMBER 16, 1944, AND WAS A MEMBER OF THE 506TH PARACHUTE INFANTRY, APO 472, FROM OCTOBER 1, 1945, THROUGH NOVEMBER 29, 1945. ON NOVEMBER 30, 1945, HE WAS TRANSFERRED TO THE 505TH PARACHUTE INFANTRY, APO 469, BUT FAILED TO REPORT AND WAS DETERMINED TO BE IN AN ABSENT WITHOUT PROPER AUTHORITY STATUS FROM THAT DATE UNTIL FEBRUARY 19, 1946, WHEN HE RETURNED TO MILITARY CONTROL, A TOTAL OF 81 DAYS. THEREAFTER, HE WAS CONFINED UNTIL MAY 1, 1946; WAS TRANSFERRED TO THE 3RD REPLACEMENT DEPOT, APO 872 ON MAY 2, 1946; LEFT FOR THE UNITED STATES ON MAY 19, 1946, AND WAS HONORABLY DISCHARGED AT SEPARATION CENTER, CAMP MCCOY, WISCONSIN, ON MAY 31, 1946.

SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, PROVIDES THAT ENLISTED MEN OF THE SEVENTH GRADE WILL RECEIVE A MONTHLY BASE PAY OF $50. SECTION 2 OF THAT ACT, 56 STAT. 360, MANDATES THAT THE BASE PAY OF ANY ENLISTED MAN SHALL BE INCREASED BY 20 PERCENT FOR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES. WITH REGARD TO PARACHUTE PAY, SECTION 18 OF THAT ACT, 56 STAT. 368, PROVIDES THAT ANY ENLISTED MAN FOR WHOM PARACHUTE JUMPING IS AN ESSENTIAL PART OF HIS DUTY AND WHO HAS RECEIVED A RATING AS A PARACHUTIST, SHALL RECEIVE ADDITIONAL PAY AT THE RATE OF $50 PER MONTH.

PARAGRAPH 3 OF ARMY REGULATION 35-1420, WHICH WAS IN EFFECT DURING THE PERIOD UNDER CONSIDERATION PROVIDED THAT "NEITHER PAY NOR ALLOWANCES ACCRUE TO ANY PERSON IN THE MILITARY SERVICE DURING UNAUTHORIZED ABSENCES IN EXCESS OF 24 HOURS, UNLESS EXCUSED."

THEREFORE, BASED ON THE ABOVE THE CLAIMANT WAS ENTITLED TO PAY FOR THE PERIODS OCTOBER 1, 1945, THROUGH NOVEMBER 29, 1945, AND FEBRUARY 19, 1946, THROUGH MAY 31, 1946. HOWEVER, HE WAS ENTITLED TO PARACHUTE PAY ONLY FOR THE PERIOD OCTOBER 1, 1945, THROUGH NOVEMBER 29, 1945, SINCE THE RECORDS SHOW THAT AFTER HIS RETURN TO MILITARY CONTROL HE WAS NO LONGER CARRIED IN A JUMP STATUS FOR THE PURPOSE OF ENTITLEMENT TO THE SPECIAL PAY AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942. WE HAVE AGAIN REVIEWED THE MEMBER'S PAY RECORDS FOR THE PERIOD IN QUESTION AND FIND THAT NO ADDITIONAL AMOUNT IS DUE HIM.

ACCORDINGLY, WE FIND THAT THE ACTION TAKEN BY OUR CLAIMS DIVISION DATED JANUARY 27, 1953, WAS CORRECT AND THAT ACTION IS SUSTAINED.