A-16666, AUG. 15, 1967

A-16666, AUG. 15, 1967

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - STALE CLAIMS DECISION TO RETIRED NAVAL RESERVE OFFICER RE CLAIMS FOR REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS PERFORMED IN 1944 AND FOR RETIRED PAY. NAVY RETIRED MEMBER WHO CLAIMS REIMBURSEMENT FOR DEPENDENTS TRAVEL IN 1944 MAY NOT HAVE CLAIM CONSIDERED IN VIEW OF 10 YEAR LIMITATION IN ACT OF OCT. 9, 1940, WHICH BARS CLAIMS THAT ARE NOT RECEIVED IN GAO WITHIN 10 YEARS OF ACCRUAL AND MEMBER'S CLAIM WAS NOT RECEIVED IN GAO UNTIL 1963. CLAIM IS NOT COGNIZABLE UNDER PUB. L 89-395, WHICH WAIVED 10 YEAR BARRING ACT FOR INCREASED PAY UNDER FOURTH PARA. OF SEC. 15, PAY READJUSTMENT ACT OF 1942. RECORDS SHOW THAT MEMBER HAS RECEIVED PROPER PERCENTAGE ADJUSTMENTS IN RETIRED PAY.

TO COMMANDER ROY A. DARLING, USNR, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1967, AND ENCLOSURES, CONCERNING YOUR CLAIM FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS FROM PORT HUENEME, CALIFORNIA, TO BIG RAPIDS, MICHIGAN, DURING THE PERIOD JULY 21 TO 25, 1944, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY. ALSO, RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JULY 21, 1967, AND ENCLOSURES.

YOUR CLAIM FOR REIMBURSEMENT OF YOUR DEPENDENTS' TRANSPORTATION, RECEIVED IN THE GENERAL ACCOUNTING OFFICE IN DECEMBER 1963, WAS RETURNED TO YOU ON JANUARY 29, 1964, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, SINCE OUR RECORDS DO NOT SHOW THAT YOU HAD PREVIOUSLY FILED A SIMILAR CLAIM IN OUR OFFICE. THE ACT OF OCTOBER 9, 1940, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"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 * * *.

"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 A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

THIS ACT EXPRESSLY BARS CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNLESS THEY ARE RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED. SINCE MORE THAN 10 FULL YEARS ELAPSED BETWEEN THE DATE YOUR CLAIM ACCRUED WHEN YOU RETIRED FROM THE U.S. NAVY ON DECEMBER 16, 1945, AND THE TIME IT WAS FIRST RECEIVED IN OUR OFFICE IN DECEMBER 1963, YOUR CLAIM IS BARRED AND WE HAD NO CHOICE BUT TO RETURN IT TO YOU AS PROVIDED BY LAW.

IN YOUR LETTER OF JULY 2, 1967, YOU SAY THAT YOUR CLAIM WAS APPARENTLY REJECTED IN ERROR SINCE THE ACT OF APRIL 14, 1966, PUB. L. 89-395, 80 STAT. 120, ENABLES SUBMISSION OF CLAIMS OF THIS NATURE WHICH ARE PAST DUE.

THE ACT OF APRIL 14, 1966, WAIVED THE PROVISIONS OF THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, WITH RESPECT TO CERTAIN OFFICERS WHO CLAIMED INCREASED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, AND CERTAIN COURT DECISIONS INTERPRETING THAT PARAGRAPH. THE SOLE PURPOSE OF THE ACT OF APRIL 14, 1966, WAS TO PERMIT CONSIDERATION OF OTHERWISE BARRED CLAIMS FOR RETIRED PAY. IT HAS NO APPLICATION TO ANY OTHER CLAIMS AND, HENCE, DOES NOT AFFECT YOUR CLAIM FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS. SINCE WE ARE PRECLUDED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, FROM CONSIDERING THAT CLAIM THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.

WITH REGARD TO THE INQUIRY IN YOUR LETTER OF JULY 21, 1967, AS TO THE COMPUTATION OF YOUR RETIRED PAY, THE MONTHLY RATE OF $547.94 WHICH YOU SAY YOU ARE RECEIVING IS THE MONTHLY RATE OF RETIRED PAY TO WHICH A COMMANDER WITH OVER 30 YEARS OF SERVICE IS ENTITLED UNDER THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, AS AMENDED BY THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343, PLUS THE PERCENTAGE INCREASES AUTHORIZED UNDER SUBSEQUENT RETIRED PAY RAISE LEGISLATION. THOSE INCREASES ARE AS FOLLOWS: DATE OF ACT SECTION REFERENCE EFFECTIVE DATE INCREASE ----------- - ----- --------- -------------- -------- MAY 19, 1952 2/B) 66 STAT. 80 MAY 1, 1952 4 PERCENT MARCH 31, 1955 6 69 STAT. 23 APRIL 1, 1955 6 PERCENT MAY 20, 1958

4/A) 72 STAT. 128 JUNE 1, 19586 PERCENT OCT. 2, 1963 5/E) 77 STAT. 213

OCT. 1, 1963 5 PERCENT AUG. 21, 1965 5/A) 79 STAT. 547 SEPT. 1, 1965 4.4 PERCENT AUG. 21, 1965 5/B) 79 STAT. 547 DEC. 1, 1966 3.7 PERCENT

THE 1946 RATE WAS USED BECAUSE SECTION 5 OF THE 1946 ACT AUTHORIZED SUCH ACTION. NO SIMILAR AUTHORIZING PROVISION HAS BEEN INCLUDED IN ANY SUBSEQUENT LEGISLATION RELATING TO PERSONS RETIRED PRIOR TO OCTOBER 1, 1949, AND, THEREFORE, THE ONLY ADJUSTMENTS MADE IN YOUR RETIRED PAY HAVE BEEN THE PERCENTAGE ADJUSTMENTS LISTED ABOVE.

YOUR ORDERS OF FEBRUARY 9, 1944, AND JULY 16, 1944, THE TRAVEL VOUCHERS FOR YOUR DEPENDENTS FORWARDED WITH YOUR LETTER OF JULY 2, 1967, AND THE ENCLOSURES TO YOUR LETTER OF JULY 21, 1967, ARE RETURNED HEREWITH.