B-20422, NOV. 19, 1959

B-20422: Nov 19, 1959

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 30. WHO WAS GRANTED A POWER OF ATTORNEY TO ENABLE YOU TO ACT FOR HIM IN THIS MATTER. BECAUSE SUCH CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER IT FIRST ACCRUED AS REQUIRED BY THE ACT OF OCTOBER 9. SAPP'S CLAIM FOR THE PERIOD WHICH WAS BARRED AND EXPRESS THE VIEW THAT THE EARLIEST DATE HIS CLAIM WOULD ACCRUE WAS DECEMBER 9. INASMUCH AS HE WAS NOT NOTIFIED OF SUCH CLAIM UNTIL THAT DATE. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'. SAPP WAS TRANSFERRED TO THE FLEET NAVAL RESERVE AFTER COMPLETING MORE THAN 16 YEARS' TOTAL NAVAL SERVICE AND THEREAFTER HE PERFORMED ACTIVE DUTY FROM NOVEMBER 30.

B-20422, NOV. 19, 1959

TO WAYNE N. BRENDLE, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 30, 1959, AND OCTOBER 24, 1959, WRITTEN IN BEHALF OF GEORGE H. SAPP, MMLC, U.S. NAVY, RETIRED, WHO WAS GRANTED A POWER OF ATTORNEY TO ENABLE YOU TO ACT FOR HIM IN THIS MATTER. YOUR LETTER OF SEPTEMBER 30 REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF JUNE 10, 1958, WHICH BARRED A PORTION OF MR. SAPP'S CLAIM FOR ADDITIONAL RETIRED PAY IN ACCORDANCE WITH THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

THE SETTLEMENT OF JUNE 10, 1958, ALLOWED MR. SAPP ADJUSTED RETIRED PAY FOR THE PERIOD JANUARY 6, 1948, TO SEPTEMBER 30, 1949, BUT DISALLOWED THAT PORTION OF THE CLAIM COVERING THE PERIOD PRIOR TO JANUARY 6, 1948, BECAUSE SUCH CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER IT FIRST ACCRUED AS REQUIRED BY THE ACT OF OCTOBER 9, 1940.

YOU QUESTION THE DENIAL OF MR. SAPP'S CLAIM FOR THE PERIOD WHICH WAS BARRED AND EXPRESS THE VIEW THAT THE EARLIEST DATE HIS CLAIM WOULD ACCRUE WAS DECEMBER 9, 1957, INASMUCH AS HE WAS NOT NOTIFIED OF SUCH CLAIM UNTIL THAT DATE.

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A (1), PROVIDES:

"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 SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORITY AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN 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.'

THE RECORD BEFORE US SHOWS THAT ON OCTOBER 1, 1931, MR. SAPP WAS TRANSFERRED TO THE FLEET NAVAL RESERVE AFTER COMPLETING MORE THAN 16 YEARS' TOTAL NAVAL SERVICE AND THEREAFTER HE PERFORMED ACTIVE DUTY FROM NOVEMBER 30, 1939, TO APRIL 23, 1943. IT APPEARS THAT HE WAS PAID RETIRED PAY AT THE RATE OF ONE-THIRD OF HIS BASE PAY PLUS LONGEVITY ON AND AFTER HIS RELEASE FROM ACTIVE DUTY AS MEMBER OF THE FLEET RESERVE UNDER THE CONSTRUCTION OF APPLICABLE STATUTES ADOPTED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AT THAT TIME. SEE 26 COMP. GEN. 804. IN THE CASE OF SANDERS V. UNITED STATES, 120 C.CLS. 501, THE COURT HELD THAT UNDER FACTS SIMILAR TO THOSE HERE INVOLVED A FLEET RESERVIST IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE RATE OF ONE-HALF OF HIS BASE AND LONGEVITY PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993. IN 32 COMP. GEN. 159, WE SAID THAT WE WOULD FOLLOW THE DECISION IN THE SANDERS CASE AND SETTLE CLAIMS ON THAT BASIS.

THE PORTION OF MR. SAPP'S CLAIM WHICH COVERED THE PERIOD PRIOR TO AUGUST 10, 1946, ACTUALLY ACCRUED ON AUGUST 10, 1946, THE EFFECTIVE DATE OF THE ACT WHICH AMENDED THE NAVAL RESERVE ACT OF 1938, 60 STAT. 993, 997, GRANTING RETROACTIVE AND PROSPECTIVE INCREASES IN RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. HIS RIGHT TO INCREASED RETAINER AND RETIRED PAY SUBSEQUENT TO AUGUST 10, 1946, ACCRUED ON A DAY TO DAY BASIS AND WAS SUBJECT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940. MR. SAPP'S CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JANUARY 6, 1958.

IN VIEW OF THE SPECIFIC PROVISION OF THE ABOVE-MENTIONED ACT THAT "EVERY CLAIM * * * SHALL BE FOREVER BARRED" UNLESS RECEIVED IN OUR OFFICE WITHIN TEN FULL YEARS AFTER THE DATE OF ITS ACCRUAL, WE ARE WITHOUT AUTHORITY TO ALLOW A CLAIM WHICH IS RECEIVED HERE MORE THAN TEN YEARS AFTER A RIGHT THERETO FIRST ACCRUED. DELAY IN DETERMINING THE EFFECT OF THE 1946 ACT OR DELAY IN MAKING THE REQUIRED ELECTION UNDER THAT ACT DOES NOT AFFECT THE OPERATION OF THE 1940 STATUTE. THE PRIMARY RESPONSIBILITY FOR FILING A CLAIM RESTS UPON THE CLAIMANT AND FAILURE ON THE PART OF THE ADMINISTRATIVE OFFICE TO ADVISE HIM THAT A CLAIM EXISTS DOES NOT TOLL THE RUNNING OF THE STATUTE. HENCE, THAT PORTION OF MR. SAPP'S CLAIM WHICH ACCRUED MORE THAN TEN YEARS BEFORE JANUARY 6, 1958, THE DATE HIS CLAIM WAS RECEIVED HERE, IS BARRED BY THE ACT OF OCTOBER 9, 1940. ACCORDINGLY, OUR SETTLEMENT OF JUNE 10, 1958, MUST BE AND IS SUSTAINED.

IN REPLY TO YOUR QUERY IN CONNECTION WITH AN APPEAL FROM A DECISION OF THE GENERAL ACCOUNTING OFFICE, YOU MAY BE ADVISED THAT SUCH DECISIONS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, THEY ARE NOT BINDING UPON THE COURT OF CLAIMS. SEE 28 U.S.C. 1491.