B-223810, OCTOBER 8, 1986, 66 COMP.GEN. 40

B-223810, OCTOBER 8, 1986, 66 COMP.GEN. 40

MILITARY PERSONNEL - PAY - CLAIMS - SAVINGS DEPOSIT - STATUTES OF LIMITATION - APPLICABILITY BECAUSE THE 6-YEAR STATUTE OF LIMITATIONS (31 U.S.C. 3702 (B)) DOES NOT APPLY TO CLAIMS FOR DEPOSITS UNDER THE SOLDIERS' SAVINGS DEPOSIT PROGRAM, A CLAIM RECEIVED IN THE GENERAL ACCOUNTING OFFICE 32 YEARS AFTER IT ACCRUED IS NOT BARRED BY THE STATUTE. THE CLAIM FOR SUCH DEPOSITS MADE BY THE SERVICE MEMBER'S WIDOW MAY NOT BE PAID, HOWEVER, BECAUSE THE ONLY SERVICE RECORDS STILL IN EXISTENCE RELATING TO IT SUPPORT THE INFERENCE THAT THE MEMBER WAS PAID SUCH DEPOSITS AT THE TIME OF HIS RETIREMENT IN 1951, AND THE CLAIMANT HAS NOT PRESENTED EVIDENCE TO OVERCOME THAT INFERENCE.

MASTER SERGEANT ANTHONY GOULARTE, USA (RETIRED) (DECEASED):

THIS IS IN RESPONSE TO AN APPEAL OF OUR CLAIMS GROUP'S ACTION OF OCTOBER 21, 1983, DISALLOWING A CLAIM AGAINST THE UNITED STATES FILED BY LUCILE F. GOULARTE. MRS. GOULARTE CLAIMS ENTITLEMENT TO FUNDS DEPOSITED BY HER LATE HUSBAND, MASTER SERGEANT ANTHONY GOULARTE, USA (RETIRED) INTO A SOLDIERS' DEPOSIT SAVINGS ACCOUNT IN 1945. OUR CLAIMS GROUP DETERMINED THE CLAIM IS BARRED UNDER THE BARRING ACT, 31 U.S.C. 3702 (B), BECAUSE MORE THAN 6 YEARS ELAPSED BETWEEN THE DATE THE IT WAS RECEIVED IN OUR OFFICE.

THE CLAIMS GROUP ERRED IN STATING THAT THIS CLAIM IS BARRED SINCE THE BARRING ACT DOES NOT APPLY TO CLAIMS FOR FUNDS DEPOSITED IN SOLDIERS' DEPOSIT ACCOUNTS. BASED ON OUR REVIEW OF THE CASE ON ITS MERITS, HOWEVER, WE ARE UNABLE TO PERMIT PAYMENT BECAUSE THE CLAIMANT HAS FAILED TO MEET HER BURDEN OF PROVING THAT THE FUNDS TO WHICH SHE IS CLAIMING ENTITLEMENT WERE NOT PAID TO HER HUSBAND WHEN DUE, OVER 30 YEARS AGO.

BACKGROUND

THE SAVINGS PROGRAM UNDER WHICH SERGEANT GOULARTE DEPOSITED HIS FUNDS IN 1945 (WHICH IS NO LONGER IN EFFECT) WAS PROVIDED FOR UNDER STATUTES AND IMPLEMENTING REGULATIONS AUTHORIZING SUCH DEPOSITS WITH INTEREST ACCRUING DURING THE MEMBER'S TERM OF SERVICE. SUCH DEPOSITS WERE NOT PLACED TO THE CREDIT OF THE UNITED STATES, BUT WERE DEPOSITED IN THE TREASURY IN A SEPARATE TRUST FUND FOR THE BENEFIT OF THE DEPOSITOR, WITH THE INTENTION THAT SUCH FUNDS BE PAID OVER TO THE MEMBER UPON SEPARATION FROM ACTIVE DUTY. SEE 10 U.S.C. 906-908(1940); 31 U.S.C. 725S (1940); 31 COMP.GEN. 562 (1952); AND 31 COMP.GEN. 178 (1951).

ANTHONY GOULARTE SERVED IN THE UNITED STATES ARMY FROM 1920 UNTIL HIS RETIREMENT AS A MASTER SERGEANT IN 1951. OCTOBER 30, 1945, HE DEPOSITED $1,200 INTO A SOLDIERS' DEPOSIT SAVINGS ACCOUNT AS EVIDENCED BY A WAR DEPARTMENT, FINANCE DEPARTMENT FORM 10, WHICH HIS WIDOW AND DAUGHTER DISCOVERED AFTER HE DIED IN 1981.

THE CENTRALIZED PAY OPERATIONS BRANCH OF THE U.S. ARMY FINANCE AND ACCOUNTING CENTER SEARCHED ITS RECORDS FOR AN UNPAID BALANCE DUE ANTHONY GOULARTE. IT FAILED TO DISCOVER ANY RECORD OF AN UNPAID ACCOUNT IN HIS NAME AND IN A LETTER DATED DECEMBER 3, 1982, THE FINANCE CENTER INFORMED MRS. GOULARTE THAT THE MONEY WAS DUE AND PAYABLE TO HER HUSBAND AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. PRESUMABLY, IN THE ORDERLY CONDUCT OF PUBLIC BUSINESS, THE ACCOUNT WAS TIMELY PAID, AS INDICATED BY A LEDGER WITH ACTIVE OR UNPAID SOLDIERS' DEPOSIT ACCOUNTS DATED NOVEMBER 1951 WHICH DOES NOT REFLECT AN UNPAID ACCOUNT FOR ANTHONY GOULARTE. THERE IS NO RECORD OF ACTUAL PAYMENT SINCE MR. GOULARTE'S PERSONAL MILITARY PAY RECORDS FROM THAT PERIOD HAVE BEEN ROUTINELY DESTROYED.

THE CLAIMS GROUP DETERMINED THAT MRS. GOULARTE'S CLAIM WAS BARRED FROM CONSIDERATION DUE TO THE PROVISIONS OF 31 U.S.C. 3702 (B). THIS CODE SECTION CONTAINS THE CODIFICATION OF THE BARRING ACT OF OCTOBER 9, 1940, AS AMENDED, WHICH PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES TO BE SETTLED BY THE COMPTROLLER GENERAL ARE BARRED UNLESS RECEIVED BY HIM WITHIN 6 YEARS FROM THEIR ACCRUAL DATES. THE CLAIMS GROUP DETERMINED THAT THE DATE OF ACCRUAL FOR THIS CLAIM WAS JUNE 30, 1951, WHEN SERGEANT GOULARTE RETIRED, MAKING IT UNTIMELY UNDER THE ACT SINCE WE RECEIVED IT ON JANUARY 31, 1983.

ANALYSIS

WE HAVE HELD THAT THE BARRING ACT DOES NOT APPLY TO FUNDS DEPOSITED IN SOLDIERS' DEPOSIT SAVINGS ACCOUNTS WHICH ARE NOT HELD BY THE GOVERNMENT ON ITS OWN ACCOUNT BUT MERELY AS TRUSTEES FOR OTHERS. B-139963, JULY 6, 1959, AND 42 COMP.GEN. 622, 623 (1963). AS SUCH, THE CLAIMS GROUP'S DETERMINATION THAT MRS. GOULARTE'S CLAIM WAS BARRED WAS INCORRECT, AND THE CLAIM SHOULD HAVE BEEN DECIDED ON ITS MERITS.

THE BURDEN OF PROVING THE EXISTENCE OF A VALID CLAIM AGAINST THE UNITED STATES IS ON THE PERSON ASSERTING THE CLAIM. 4 C.F.R. 31.7 (1986). NOTWITHSTANDING THAT BURDEN, SINCE SUCH PROOF OFTEN CAN BE FOUND IN GOVERNMENT RECORDS, UPON PRESENTATION OF A CLAIM, ATTEMPTS ARE MADE TO SECURE THESE RECORDS IN ORDER TO INSURE TO THE MAXIMUM EXTENT POSSIBLE THAT SUCH ENTITLEMENT AS A CLAIMANT MAY HAVE IS PROTECTED. EDWARD J. REED, B-216359, MARCH 5, 1985. WHERE RECORDS NECESSARY TO ESTABLISH OR REFUTE A CLAIM ARE UNAVAILABLE, AND THE CLAIMANT, IN TURN, HAS FAILED TO PROVIDE PROOF OF ENTITLEMENT, WE HAVE NO ALTERNATIVE BUT TO DISALLOW THE CLAIM. SHERWOOD T. RODRIGUEZ, B-214533, JULY 23, 1984.

UNDER THE REGULATIONS AND PRIOR DECISIONS, MRS. GOULARTE HAS THE BURDEN OF PROVING SERGEANT GOULARTE DID NOT RECEIVE THE PAYMENT DUE HIM FROM THE SOLDIERS' DEPOSIT ACCOUNT, THUS ENTITLING HER TO PAYMENT AT THIS TIME. SHE HAS PRESENTED AS HER SOLE EVIDENCE OF ENTITLEMENT A CERTIFICATE DOCUMENTING SERGEANT GOULARTE'S DEPOSIT ON OCTOBER 30, 1945, INTO THE SAVINGS ACCOUNT. WE CANNOT DETERMINE ON THE BASIS OF THIS DOCUMENT ALONE THAT SERGEANT GOULARTE DID NOT RECEIVE HIS MONEY WHEN HE RETIRED FROM MILITARY SERVICE AS CONTEMPLATED BY THE APPLICABLE STATUTES AND REGULATION IN EFFECT AT THE TIME. AND, AS INDICATE ABOVE, THE ARMY LEDGER SHOWING UNPAID SOLDIERS' DEPOSIT ACCOUNTS DATED NOVEMBER 1951 DID NOT SHOW AN OUTSTANDING ACCOUNT FOR SERGEANT GOULARTE, FURTHER SUPPORTING THE INFERENCE THAT HE HAD RECEIVED PAYMENT IN THE NORMAL COURSE OF EVENTS UPON HIS RETIREMENT IN JUNE 1951.

ACCORDINGLY, MRS. GOULARTE HAS NOT MET HER BURDEN OF PROVING THE VALIDITY OF HER CLAIM. THEREFORE, HER CLAIM MUST BE DENIED.