B-158943, MAY 24, 1966

B-158943, MAY 24, 1966

TO MR. ELIAS FERNANDEZ:

REFERENCE IS MADE TO YOUR RECENT LETTERS TO THIS OFFICE AND OTHER LETTERS TO DIFFERENT GOVERNMENT AGENCIES WHICH HAVE BEEN FORWARDED TO US, CONCERNING YOUR CLAIM THAT A PORTION OF THE MUSTERING-OUT PAY WHICH YOU WERE TO RECEIVE AS A RESULT OF YOUR SERVICES IN THE UNITED STATES ARMY DURING WORLD WAR II AND DISCHARGE ON NOVEMBER 30, 1945, WAS NEVER PAID TO YOU. YOU WERE ADVISED BY LETTER FROM OUR CLAIMS DIVISION DATED FEBRUARY 28, 1966, THAT WE WERE WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM SINCE IT WAS NOT RECEIVED IN THIS OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1041, 31 U.S.C. 71A.

IT IS NOTED THAT YOU WROTE TO THE DEPARTMENT OF THE ARMY, CONTENDING THAT YOU WERE ENTITLED TO RECEIVE $300 MUSTERING-OUT PAY UPON DISCHARGE FROM THE UNITED STATES ARMY IN 1945, BUT ACTUALLY RECEIVED ONLY $100 AND HAD YET TO RECEIVE THE REMAINING $200. IN RESPONSE, THE COMPTROLLER OF THE ARMY, ADVISED YOU BY LETTER OF DECEMBER 9, 1965, THAT THEY COULD FIND NO RECORD OF PAYMENT HAVING BEEN MADE TO YOU FOR THE REMAINING MONIES, AND STATED THAT SINCE YOU HAD FAILED TO MAKE A CLAIM WITHIN 10 YEARS OF YOUR DATE OF DISCHARGE, THEY WOULD BE UNABLE TO ASSIST YOU.

THE FILE REFLECTS THAT A SUBSEQUENT INVESTIGATION ESTABLISHED THAT ON DECEMBER 30, 1945, AND JANUARY 30, 1946, CHECKS NO. 704439 AND 728285, IN THE AMOUNTS OF $100 EACH, WERE ISSUED BY LT. COLONEL W. C. THOMPSON, DRAWN ON THE TREASURY OF THE UNITED STATES, PAYABLE TO YOUR ORDER AND SENT TO YOUR ADDRESS IN PUERTO RICO. BY LETTER DATED FEBRUARY 14, 1966, FROM THE COMPTROLLER OF THE ARMY, YOU WERE SO ADVISED AND YOU WERE ALSO INFORMED THAT THE RECORDS IN THE TREASURY DEPARTMENT INDICATED THAT BOTH OF THESE CHECKS HAD BEEN CASHED. THE FOREGOING INFORMATION WAS RECORDED AT THE TIME SUCH CHECKS WERE ISSUED AND CASHED AND ALTHOUGH THE CHECKS HAVE SINCE BEEN DESTROYED PURSUANT TO LAW, THAT INFORMATION IS STILL CONTAINED IN THE RECORDS OF THE TREASURY DEPARTMENT.

YOU CONTEND THAT YOU NEVER ENDORSED OR RECEIVED THESE CHECKS AND THAT IF SOMEONE ELSE RECEIVED THEM, IT WAS WITHOUT YOUR PERMISSION AND THAT YOU WERE THE ONLY ONE ACTUALLY ENTITLED TO THE MONEY. IT IS YOUR BELIEF THAT ANY STATUTORY LIMITATION PERIOD SHOULD NOT WORK AGAINST YOU AS YOU SUFFERED A MENTAL ILLNESS SHORTLY AFTER DISCHARGE AND YOU HAVE INDICATED THAT YOU WERE AFFLICTED WITH SUCH ILLNESS FOR A NUMBER OF YEARS THEREAFTER.

IN VIEW OF THE FOREGOING, IT APPEARS REASONABLY TO ASSUME THAT THE CHECKS WERE RECEIVED AT YOUR ADDRESS, WERE PROPERLY ENDORSED AND THEN WERE CASHED BY THE PERSON OR PERSONS WHO WERE TAKING CARE OF YOU AT THAT TIME AND THAT IT IS BECAUSE OF YOUR ILLNESS THAT YOU DO NOT REMEMBER THE EVENTS WHICH ACTUALLY TRANSPIRED. BUT HOWEVER THAT MAY BE THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM FOR THE ADDITIONAL REASONS STATED BELOW.

IN 1926, THE CONGRESS OF THE UNITED STATES ENACTED LEGISLATION SPECIFICALLY COVERING CLAIMS MADE AGAINST THE UNITED STATES ON ACCOUNT OF CHECKS. IN THE MATTER OF THE DESTRUCTION OF CASHED CHECKS, A PORTION OF THIS ACT OF JUNE 22, 1926, CH. 650, 44 STAT. 761, PROVIDES IN PERTINENT ART:

"THAT THE SECRETARY OF THE TREASURY * * * (IS) HEREBY AUTHORIZED AND DIRECTED TO CAUSE TO BE DESTROYED ALL UNITED STATES GOVERNMENT CHECKS * * * ISSUED * * *, EIGHT FULL FISCAL YEARS PRIOR TO THE DATE OF DESTRUCTION, WHICH CHECKS * * * HAVE BEEN PAID AND FORM THE PAID CHECK FILES OF THE TREASURY DEPARTMENT * * *, AFTER ALL UNPAID CHECKS * * * HAVE BEEN LISTED AS OUTSTANDING AS NOW REQUIRED BY LAW: * * *.'

PRESUMABLY, THE CHECKS HERE IN QUESTION WERE DESTROYED UNDER THE ABOVE- QUOTED PROVISIONS OF LAW.

IN THE MATTER OF YOUR CLAIMED ENTITLEMENT, ANOTHER SECTION OF THE SAME ACT, AS AMENDED, 31 U.S.C. 122, PROVIDES IN PERTINENT PART:

"* * * ALL CLAIMS ON ACCOUNT OF ANY CHECK, (OR) CHECKS, * * * APPEARING FROM THE RECORDS OF THE GENERAL ACCOUNTING OFFICE OR THE TREASURY DEPARTMENT TO HAVE BEEN PAID, SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, (OR) CHECKS, * * * INVOLVED.'

UNDER THE PLAIN TERMS OF THE LAW, CLAIMS FOR ISSUED CHECKS MUST BE RECEIVED WITHIN THE TIME SPECIFIED. THE PURPOSE OF THE ACT WAS TO RELIEVE THE GOVERNMENT OF RESPONSIBILITY FOR SUCH CLAIMS AFTER THE ENDORSERS OF THESE CHECKS HAVE BEEN RELIEVED OF THEIR LIABILITY TO THE UNITED STATES. HAD YOU MADE A CLAIM WITHIN THE SIX-YEAR PERIOD FOLLOWING THE ISSUANCE OF THESE CHECKS, THE TREASURY DEPARTMENT OR THIS OFFICE MIGHT HAVE BEEN ABLE TO DETERMINE WHO CASHED THE TWO $100 CHECKS WHICH WERE ISSUED AND MAILED TO YOU AND APPROPRIATE ACTION COULD THEN HAVE BEEN TAKEN IF YOU FAILED TO RECEIVE THE AMOUNT TO WHICH YOU WERE ENTITLED. HOWEVER, BECAUSE OF THE LONG DELAY ON YOUR PART IN PRESENTING A CLAIM, THE LAW PROHIBITS THIS OFFICE FROM ACTING FAVORABLY ON SUCH CLAIM.

WHILE IT MAY BE THAT YOUR ILLNESS WAS THE REASON FOR YOUR DELAY IN MAKING A CLAIM, THE LAW CONTAINS NO EXCEPTIONS IN SUCH CIRCUMSTANCES AND THIS OFFICE IS WITHOUT AUTHORITY TO GRANT ANY EXTENSION OF TIME WITHIN WHICH SUCH CLAIMS MAY BE FILED. SINCE THE FIRST NOTICE THAT OUR OFFICE HAD OF YOUR CLAIM WAS YOUR LETTER DATED DECEMBER 13, 1965, CONSIDERABLY MORE THAN SIX YEARS AFTER THE CHECKS WERE ISSUED, YOUR CLAIM MAY NOT BE CONSIDERED FURTHER.