B-51842, SEP. 7, 1962

B-51842: Sep 7, 1962

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LAWRENCE SANDERS: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 13. WHO IS PRESUMED TO HAVE DIED ON NOVEMBER 25. IN YOUR LETTER YOU SAY YOU WERE UNAWARE OF THIS MATTER UNTIL THIS PAST MONTH AND YOU ASK WHETHER THE SUM RESERVED FOR YOU AS MOTHER IS STILL PAYABLE AND HOW YOU MAY OBTAIN IT. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'. ANY RIGHT YOU MAY HAVE HAD TO THE REMAINING ONE-HALF SHARE OF THE ARREARS OF PAY DUE THE ESTATE OF YOUR SON ACCRUED TO YOU NOT LATER THAN NOVEMBER 25. THERE IS NO RECORD OF ANY CLAIM FROM YOU HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE. SINCE THE RECORD SHOWS THAT YOU AND THE DECEDENT'S FATHER WERE DIVORCED ON JULY 13.

B-51842, SEP. 7, 1962

TO MRS. LAWRENCE SANDERS:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 13, 1962, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR ONE-HALF SHARE OF THE ARREARS OF PAY THAT MAY BE DUE IN THE CASE OF YOUR LATE SON, SAMUEL ROLLINS, SEAMAN, FIRST CLASS, USNR, WHO IS PRESUMED TO HAVE DIED ON NOVEMBER 25, 1944. WITH YOUR LETTER YOU ENCLOSED A COPY OF OUR DECISION OF SEPTEMBER 10, 1945, B-51842, TO MR. J. N. ROLLINS, IN WHICH WE SUSTAINED THE ACTION TAKEN BY OUR CLAIMS DIVISION IN THE SETTLEMENT OF APRIL 5, 1945, WHICH ALLOWED HIM, AS FATHER, THE SUM OF $483.52, REPRESENTING ONE-HALF OF THE ARREARS OF PAY DUE HIS SON SAMUEL ROLLINS, AND WHICH RESERVED THE REMAINING ONE-HALF OF THE ARREARS OF PAY FOR THE DECEDENT'S MOTHER.

IN YOUR LETTER YOU SAY YOU WERE UNAWARE OF THIS MATTER UNTIL THIS PAST MONTH AND YOU ASK WHETHER THE SUM RESERVED FOR YOU AS MOTHER IS STILL PAYABLE AND HOW YOU MAY OBTAIN IT.

THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/1) 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 AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM 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.'

ANY RIGHT YOU MAY HAVE HAD TO THE REMAINING ONE-HALF SHARE OF THE ARREARS OF PAY DUE THE ESTATE OF YOUR SON ACCRUED TO YOU NOT LATER THAN NOVEMBER 25, 1944, THE PRESUMPTIVE DATE OF HIS DEATH AS DETERMINED BY THE NAVY DEPARTMENT UNDER THE PROVISIONS OF THE ACT OF MARCH 7, 1942, 56 STAT. 143, AS AMENDED. THE TEN-YEAR PERIOD IN YOUR CASE EXPIRED NOVEMBER 24, 1954. THERE IS NO RECORD OF ANY CLAIM FROM YOU HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE. ALSO, SINCE THE RECORD SHOWS THAT YOU AND THE DECEDENT'S FATHER WERE DIVORCED ON JULY 13, 1931, WE MAY NOT VIEW THE FATHER'S CLAIM AS A CLAIM IN YOUR BEHALF. THEREFORE, REGARDLESS OF THE MERITS OF THE CLAIM, THE CONGRESS BARRED ITS CONSIDERATION BY US.

THE LIMITATION PRESCRIBED BY STATUTE UPON CONSIDERATION OF CLAIM BY OUR OFFICE IS NOT A MERE STATUTE OF LIMITATIONS BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267.

FURTHER, THE FACT THAT BY LETTER DATED DECEMBER 31, 1943, YOU REQUESTED INFORMATION FROM THE NAVY DEPARTMENT CONCERNING YOUR SON'S STATUS DOES NOT OPERATE TO ALTER THE LIMITATION IMPOSED UPON OUR OFFICE BY LAW. THEREFORE YOUR CLAIM NOT HAVING BEEN RECEIVED HERE WITHIN TEN FULL YEARS AFTER ACCRUAL, WE TRUST YOU WILL UNDERSTAND THAT IT IS PRECLUDED FROM OUR CONSIDERATION BY LAW AND ..END :