B-198713, JUL 29, 1980

B-198713: Jul 29, 1980

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AGENCIES WILL NOW HANDLE THESE CLAIMS IN ACCORDANCE WITH THE ENCLOSED INSTRUCTIONS. TITLE 4 OF THE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURE MANUAL FOR GUIDANCE OF FEDERAL AGENCIES WILL BE MODIFIED TO REFLECT THE CHANGE IN PROCEDURES. BARS ALL CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (GAO) WHICH ARE NOT RECEIVED IN THAT OFFICE WITHIN SIX YEARS OF THE DATE SUCH CLAIMS ACCRUED. THERE ARE NO EXCEPTIONS TO THE ACT. THE ACT DOES NOT PROHIBIT CONSIDERATION OF THE FACTS OF A BARRED PORTION OF A CLAIM IN DETERMINING ENTITLEMENTS FOR A PORTION THAT IS NOT BARRED. THE AUTHORITY TO DETERMINE WHETHER CLAIMS ARE BARRED UNDER 31 U.S.C. 71A VESTS SOLELY IN GAO. THE EXECUTIVE AGENCY CAN PROPERLY ADVISE A CLAIMANT THAT GAO WILL DETERMINE A CLAIM TO BE BARRED IF IT IS NOT RECEIVED IN GAO WITHIN SIX YEARS OF THE DATE OF ACCRUAL.

B-198713, JUL 29, 1980

SUBJECT: CHANGE IN PROCEDURES FOR HANDLING BARRED CLAIMS

HEADS OF DEPARTMENTS, INDEPENDENT ESTABLISHMENTS AND OTHERS CONCERNED:

SECTION 5.1 AND 7.1 OF TITLE 4 OF THE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES REQUIRE AGENCIES TO FORWARD BARRED CLAIMS TO GAO FOR ADJUDICATION.

WE NO LONGER REQUIRE THAT AGENCIES FORWARD CLAIMS TO US IF THEY APPEAR TO BE BARRED BY 31 U.S.C. 71A. AGENCIES WILL NOW HANDLE THESE CLAIMS IN ACCORDANCE WITH THE ENCLOSED INSTRUCTIONS.

TITLE 4 OF THE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURE MANUAL FOR GUIDANCE OF FEDERAL AGENCIES WILL BE MODIFIED TO REFLECT THE CHANGE IN PROCEDURES.

INSTRUCTIONS FOR HANDLING BARRED CLAIMS

INTRODUCTION

THE ACT OF OCTOBER 9, 1940, AS AMENDED BY THE GENERAL ACCOUNTING OFFICE ACT OF 1974 (31 U.S.C. 71A), BARS ALL CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (GAO) WHICH ARE NOT RECEIVED IN THAT OFFICE WITHIN SIX YEARS OF THE DATE SUCH CLAIMS ACCRUED. COMMONLY CALLED THE BARRING ACT, THIS STATUTE PROHIBITS CONSIDERATION OF CLAIMS OVER SIX YEARS OLD. THERE ARE NO EXCEPTIONS TO THE ACT, EVEN IN CASES WHERE ITS APPLICATION MAY SEEM INEQUITABLE. HOWEVER, THE ACT DOES NOT PROHIBIT CONSIDERATION OF THE FACTS OF A BARRED PORTION OF A CLAIM IN DETERMINING ENTITLEMENTS FOR A PORTION THAT IS NOT BARRED.

THE AUTHORITY TO DETERMINE WHETHER CLAIMS ARE BARRED UNDER 31 U.S.C. 71A VESTS SOLELY IN GAO. HOWEVER, THE EXECUTIVE AGENCY CAN PROPERLY ADVISE A CLAIMANT THAT GAO WILL DETERMINE A CLAIM TO BE BARRED IF IT IS NOT RECEIVED IN GAO WITHIN SIX YEARS OF THE DATE OF ACCRUAL.

TOLLING THE STATUTE

WHEN THE AGENCY CANNOT PAY A CLAIM IN FULL, AND THAT CLAIM IS FOUR OR MORE YEARS OLD, THE AGENCY SHOULD FORWARD THE CLAIM IMMEDIATELY TO THE GENERAL ACCOUNTING OFFICE, CLAIMS GROUP-ROOM 5451, FINANCIAL AND GENERAL MANAGEMENT STUDIES DIVISION, WASHINGTON D. C. 20548, TO TOLL THE STATUTE. THE CLAIMS GROUP WILL RECORD THE DATE OF RECEIPT IN GAO AND RETURN THE CLAIM TO THE AGENCY FOR SETTLEMENT. THIS ACTION PREVENTS THE CLAIM FROM BEING BARRED, AS IT HAS BEEN RECEIVED IN GAO WITHIN THE SIX YEARS PRESCRIBED BY STATUTE. THE DATE AN AGENCY RECEIVES A CLAIM HAS NO EFFECT ON THE APPLICATION OF THE BARRING ACT. THE CLAIM MUST BE RECEIVED IN GAO TO TOLL THE RUNNING OF THE STATUTE.

DATE OF ACCRUAL

GENERALLY

THE ACCRUAL DATE OF A CLAIM IS THE DATE ON WHICH ALL EVENTS FIXING THE LIABILITY OF THE UNITED STATES HAVE OCCURRED. BECAUSE THE DATE OF ACCRUAL OF A CLAIM IS NOT ALWAYS OBVIOUS, A CLAIM MUST BE CAREFULLY EXAMINED TO DETERMINE THE EXACT DATE OF ACCRUAL BEFORE INFORMING A CLAIMANT THAT THE CLAIM MAY NOT BE CONSIDERED. A CLAIM MUST BE FOR A SPECIFIC PERIOD OF TIME. THAT IS, REGARDLESS OF WHETHER THE PERIOD OF THE CLAIM IS MEASURED IN YEARS OR HOURS, THE CLAIMANT MUST ESTABLISH A DEFINITE BEGINNING DATE AND, UNLESS THE CLAIM IS CONTINUING, A DEFINITE ENDING DATE FOR THE CLAIM.

A CLAIM EXTENDING OVER A LONG DURATION ACCRUES ON A DAILY BASIS, AND EACH DAY IS CONSIDERED A SEPARATE CLAIM IN APPLYING THE BARRING ACT. FOR EXAMPLE, CONSIDER A CLAIM FROM A CIVILIAN EMPLOYEE WHICH WAS RECEIVED IN GAO ON JUNE 30, 1979. THE EMPLOYEE RECEIVED ORDERS TO PERFORM TEMPORARY DUTY FROM MARCH 1-30, 1973. THE CLAIM ACCRUED ON A DAILY BASIS FOR EACH DAY THE EMPLOYEE WAS IN A TRAVEL STATUS. THE ENTIRE CLAIM IS BARRED SINCE IT WAS RECEIVED IN GAO MORE THAN SIX YEARS AFTER IT ACCRUED. ON THE OTHER HAND, IF THE EMPLOYEE FILED THE CLAIM WITH GAO BY MARCH 1, 1979, THE ENTIRE CLAIM COULD BE CONSIDERED. HOWEVER, IF THE CLAIM WAS RECEIVED IN GAO ON MARCH 15, 1979, THE PORTION OF THE CLAIM OCCURRING BEFORE MARCH 15, 1973, WOULD BE BARRED; THE BALANCE OF THE CLAIM COULD BE CONSIDERED, SINCE CLAIMS ACCRUE ON A DAILY BASIS. THIS EXAMPLE OF A PARTIALLY BARRED CLAIM ILLUSTRATES THE IMPORTANCE OF FORWARDING CLAIMS TO GAO AS SOON AS POSSIBLE TO TOLL THE RUNNING OF THE STATUTE OF LIMITATIONS AND TO PROTECT THE RIGHTS OF CLAIMANTS.

MILITARY CLAIMS

THE ACCRUAL DATES OF ACTIVE MILITARY MEMBERS' CLAIMS ARE COMPUTED DIFFERENTLY FROM THOSE OF CIVILIAN EMPLOYEES. THE ACT PROVIDES THAT PERSONS SERVING IN THE ARMED FORCES OF THE UNITED STATES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER THEIR CLAIM ACCRUES, HAVE FIVE YEARS AFTER PEACE IS ESTABLISHED TO ASSERT A CLAIM.

ADDITIONALLY, THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 50 U.S.C. APP. 525, PROVIDES THAT PERIODS OF MILITARY SERVICE ARE NOT TO BE INCLUDED IN COMPUTING THE ACCRUAL DATE OF A CLAIM. REGARDLESS OF WHEN A CLAIM ACTUALLY ACCRUED DURING A MEMBER'S TERM OF ACTIVE DUTY, THE ACCRUAL DATE IS TO BE COMPUTED AS OF THE MEMBER'S DATE OF DISCHARGE. ONLY THOSE CLAIMS WHICH ARE FILED MORE THAN SIX YEARS AFTER THE DATE OF DISCHARGE ARE BARRED. IN OUR EXAMPLE, IF A MILITARY MEMBER FILED A CLAIM ON JUNE 30, 1979, FOR TEMPORARY DUTY DURING MARCH 1-30, 1973, AND THE MEMBER WAS NOT DISCHARGED UNTIL AUGUST 15, 1973, THE ENTIRE CLAIM COULD BE CONSIDERED. (THE CLAIM WOULD BE BARRED ONLY IF IT WERE RECEIVED IN GAO AFTER AUGUST 15, 1979.)

FURTHERMORE, A MEMBER'S PERIODIC RETURN TO ACTIVE DUTY AFTER SEPARATION INTERRUPTS THE RUNNING OF THE STATUTE OF LIMITATIONS. TO CITE OUR EXAMPLE AGAIN, IF A MEMBER PERFORMED TEMPORARY DUTY DURING MARCH 1-30, 1973, WAS SEPARATED ON MAY 1, 1973, AND FILED A CLAIM WITH GAO ON JUNE 30, 1979, THE CLAIM NORMALLY WOULD BE BARRED. HOWEVER, IF, IN THIS CASE, THE MEMBER HAS ACCUMULATED 60 DAYS OF ACTIVE DUTY SINCE SEPARATION, THAT TIME WOULD TOLL THE RUNNING OF THE STATUTE FOR 60 DAYS AND THE CLAIM COULD BE CONSIDERED.

ANOTHER FACTOR AFFECTING THE ACCRUAL DATE ON MILITARY CLAIMS INVOLVES THE CORRECTION OF MILITARY RECORDS. MILITARY RECORDS MAY BE CORRECTED UNDER THE PROVISIONS OF 10 U.S.C. 1552 TO UPGRADE THE TYPE OF DISCHARGE FROM LESS THAN HONORABLE TO UNDER HONORABLE CONDITIONS. UNDER SUCH CIRCUMSTANCES, ENTITLEMENT TO CERTAIN BENEFITS ACCRUES ON THE DATE OF THE CORRECTION. AN EXAMPLE OF THIS SITUATION MIGHT INVOLVE A MEMBER WHO WAS DISCHARGED UNDER LESS THAN HONORABLE CONDITIONS AND PERFORMED TRAVEL TO HOME OF RECORD ON MAY 1, 1968. UPON REVIEW, MILITARY RECORDS WERE CORRECTED ON MAY 1, 1974, TO SHOW A DISCHARGE UNDER HONORABLE CONDITIONS. THE MEMBER'S CLAIM FOR ADDITIONAL REIMBURSEMENT THAT MIGHT BE DUE INCIDENT TO THE UPGRADE IN TYPE OF DISCHARGE WAS RECEIVED IN GAO ON JUNE 30, 1979. SINCE ENTITLEMENT TO CERTAIN BENEFITS AROSE, NOT AT THE TIME OF THE ORIGINAL DISCHARGE (MAY 1, 1968), BUT ONLY UPON THE CORRECTION OF RECORDS (MAY 1, 1974), THE CLAIM MAY BE CONSIDERED. (IT SHOULD BE NOTED THAT ALL ACTIONS TAKEN UNDER THE PROVISIONS OF 10 U.S.C. 1552 DO NOT CONSTITUTE CORRECTIONS OF MILITARY RECORDS. SOME ACTIONS MERELY AFFIRM THAT THE RECORDS ARE CORRECT AND DO NOT ESTABLISH A NEW ACCRUAL DATE.)

PERSONNEL ACTIONS AND THE BARRING ACT

THE BARRING ACT PRECLUDES CONSIDERATION OF CLAIMS MORE THAN SIX YEARS OLD, BUT DOES NOT PROHIBIT CREDIT FOR TIME SERVED IN A POSITION WHEN DETERMINING AN EMPLOYEE'S ENTITLEMENT TO PROMOTION. FOR INSTANCE, WHEN A PERSONNEL OFFICE DETERMINES THAT AN EMPLOYEE'S PROMOTION SHOULD HAVE OCCURRED EARLIER THAN IT ACTUALLY DID, THE RECORDS MAY BE CORRECTED TO SHOW THE PROPER DATES OF THAT PROMOTION AND ANY SUBSEQUENT PROMOTIONS. BACK PAY DUE FOR SUCH PROMOTIONS IS SUBJECT TO THE BARRING ACT, EVEN THOUGH THE CORRECTION OF RECORDS MAY EXTEND BACK MORE THAN SIX YEARS. SUMMARY, WHEN DETERMINING ENTITLEMENT, THE BARRING ACT DOES NOT APPLY; WHEN MAKING PAYMENT BASED ON THAT ENTITLEMENT, THE BARRING ACT DOES APPLY.

AGENCY PROCEDURE FOR HANDLING BARRED CLAIMS

THE AGENCY SHOULD INFORM CLAIMANTS THAT GAO WILL DETERMINE THEIR CLAIMS TO BE BARRED UNDER 31 U.S.C. 71A IF SIX YEARS HAVE ELAPSED SINCE THE CLAIM ACCRUED AND THE CLAIM HAS NEVER BEEN CONSIDERED BY GAO. CLAIMANTS SHOULD NOT BE TOLD BY THE AGENCY THAT THEIR CLAIM IS BARRED. HOWEVER, A COPY OF THE BARRING ACT MAY BE INCLUDED WITH A LETTER INFORMING THE CLAIMANT THAT GAO WILL DETERMINE THE CLAIM TO BE BARRED UNLESS IT WAS RECEIVED BY GAO WITHIN THE SIX-YEAR LIMIT. CLAIMANTS SHOULD BE TOLD THAT FILING A CLAIM WITH AN AGENCY OF THE GOVERNMENT OTHER THAN GAO DOES NOT SATISFY THE REQUIREMENTS OF THE ACT, AND THAT THE BARRING ACT HAS NO EXCEPTIONS AND MAY NOT BE WAIVED. WE RECOMMEND THAT THE LETTER SHOW THE DATE THE CLAIM ACCRUED AND THEN STATE THAT MORE THAN SIX YEARS HAVE ELAPSED SINCE THAT TIME. THIS CONTRAST BETWEEN THE DATES HELPS TO POINT OUT TO THE CLAIMANT THAT, IN FACT, SIX YEARS HAVE ELAPSED. ADVISE CLAIMANTS THAT ANY EVIDENCE THEY HAVE PROVING A CLAIM WAS PREVIOUSLY RECEIVED BY GAO SHOULD BE FORWARDED DIRECTLY TO THE AGENCY FOR RECONSIDERATION OF THE MATTER. LANGUAGE ALONG THE LINES OF THE FOLLOWING MAY BE USED IN LETTERS TO CLAIMANTS:

"WE ARE RETURNING YOUR CLAIM FOR AMOUNTS BELIEVED DUE FROM THE UNITED STATES, ALONG WITH A COPY OF THE ACT OF OCTOBER 9, 1940. ACCORDING TO SECTION 1 OF THE ACT, A CLAIM MUST BE FILED WITH THE GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS FROM THE DATE IT ACCRUES OR ELSE IT IS BARRED, WHICH MEANS THAT IT CANNOT BE CONSIDERED AT ALL.

"SINCE YOUR CLAIM FOR ACCRUED ON , AND IT IS NOW , WE CANNOT CONSIDER YOUR CLAIM. THE FILING OF A CLAIM WITH ANY AGENCY OF THE GOVERNMENT OTHER THAN THE GENERAL ACCOUNTING OFFICE DOES NOT SATISFY THE REQUIREMENTS OF THE ACT. THE LAW DOES NOT PERMIT EXCEPTIONS. THEREFORE, WE ARE RETURNING YOUR CLAIM TO YOU WITHOUT ACTION.

"THE DATE OF RECEIPT IN THE GENERAL ACCOUNTING OFFICE IS THE CONTROLLING FACTOR IN CONSIDERING YOUR CLAIM. THEREFORE, IF YOU HAVE EVIDENCE THAT YOUR CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS OF THE ACCRUAL DATE (AS STATED ABOVE), YOU MAY FORWARD SUCH EVIDENCE DIRECTLY TO (AGENCY ADDRESS) .

AGENCY PERSONNEL SHOULD DIRECT ANY QUESTIONS CONCERNING THE PROPER APPLICATION OF 31 U.S.C. 71A TO THE CHIEF, PAYMENT BRANCH, U. S. GENERAL ACCOUNTING OFFICE, FINANCIAL AND GENERAL MANAGEMENT STUDIES DIVISION/CLAIMS GROUP, WASHINGTON, D. C. 20548. THE CHIEF, PAYMENT BRANCH, CAN BE REACHED BY TELEPHONE AT (202) 275-3218.

(PUBLIC - NO 820 - 76TH CONGRESS)

(CHAPTER 788 - 3D SESSION)

(H. R. 8150)

AN ACT

PROVIDING FOR THE BARRING OF CLAIMS AGAINST THE UNITED STATES

BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), 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 SIX FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

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

APPROVED, OCTOBER 9, 1940.

(AS AMENDED BY SECTION 801 OF THE GENERAL ACCOUNTING OFFICE ACT OF 1974, APPROVED JANUARY 2, 1975, PUB. L. 93-604).