B-149217, AUG. 31, 1965

B-149217, AUG. 31, 1965

TO MR. FAUSTINO A. LIZARDO:

WE REFER TO YOUR LETTER OF MAY 22, 1965, IN WHICH YOU AGAIN PROTEST OUR ACTION BARRING CONSIDERATIONS OF YOUR CLAIM BECAUSE OF THE 10-YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, CONCERNING WHICH WE ADVISED YOU ON APRIL 30, 1965, AS WELL AS ON SEVERAL PRIOR OCCASIONS.

YOUR CLAIM IS FOR ADDITIONAL PAY YOU ALLEGE TO BE DUE YOU UNDER THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C., APPEN. 1001, AND FOLLOWING SECTIONS, IN THE CASE OF YOUR FATHER, ROMAN LIZARDO, NOW DECEASED, WHO WAS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, CAVITE, PHILIPPINES. YOU EXPRESS THE VIEW THAT THE 1940 ACT IS INAPPLICABLE TO YOUR CLAIM BASED UPON THE MISSING PERSONS ACT. HOWEVER, SUCH IS NOT THE CASE. THE TIME LIMITATION OF THE 1940 ACT IS APPLICABLE TO THE CLAIM OF A RELATIVE OF A DECEASED PERSON FOR PAY ALLEGED TO HAVE ACCRUED UNDER THE MISSING PERSONS ACT TO THE CREDIT OF A DECEDENT, JUST AS SUCH TIME LIMITATION IS APPLICABLE TO ANY OTHER CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER OUR AUTHORITY (31 U.S.C. 71) TO SETTLE ALL CLAIMS AGAINST THE UNITED STATES. CONSEQUENTLY, A CLAIM BY A SURVIVING RELATIVE IS BARRED FROM CONSIDERATION HERE UNLESS THE CLAIM IS RECEIVED IN OUR OFFICE WITHIN TEN YEARS FROM THE DATE THE BASIC CLAIM ACCRUED UNDER THE MISSING PERSONS ACT.

AS TO THE DATE THE BASIC CLAIM ACCRUES, WE HAVE APPLIED THE RULE THAT THE DATE OF ACCRUAL IS THE DATE ON WHICH THE APPROPRIATE ADMINISTRATIVE DETERMINATION AS TO ENTITLEMENT UNDER THE ACT IS MADE. IN THE PRESENT CASE, THE RECORD SHOWS THAT, BASED UPON YOUR FATHER'S CLAIM FILED APRIL 28, 1945, A DETERMINATION WAS MADE AFTER INVESTIGATION THAT HIS STATUS FOR PAY PURPOSES UNDER THE MISSING PERSONS ACT ENDED AS OF AUGUST 31, 1942. THAT DETERMINATION WAS MADE (EXACT DATE NOT OF RECORD HERE) SOMETIME PRIOR TO, BUT NO LATER THAN, SEPTEMBER 22, 1948, ON WHICH DATE A DOCUMENT WAS ISSUED SEPARATING HIM FROM SERVICE EFFECTIVE AUGUST 31,1942. SINCE YOUR CLAIM (LETTER DATED JANUARY 4, 1962, ADDRESSED TO THE BUREAU OF EMPLOYEES COMPENSATION, DEPARTMENT OF LABOR, WHICH WAS FORWARDED HERE) WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL JANUARY 18, 1962, MORE THAN 13 YEARS AFTER SEPTEMBER 22, 1948 (CONSIDERED AS THE LATEST POSSIBLE DATE THE ADMINISTRATIVE DETERMINATION AS TO ENTITLEMENT UNDER THE MISSING PERSONS ACT WAS MADE), OUR ACTION IN BARRING THE CLAIM UNDER THE 10-YEAR LIMITATION OF THE 1940 ACT WAS REQUIRED BY LAW AND MUST BE SUSTAINED.

REGARDLESS OF THE APPLICABILITY OF THE 1940 ACT, THE RECORD INDICATES THAT A FINAL DETERMINATION HAS BEEN MADE BY THE DEPARTMENT OF THE NAVY AS TO THE PERIOD YOUR FATHER ACCRUED PAY UNDER THE MISSING PERSONS ACT, NAMELY, FROM DECEMBER 15, 1941, TO AUGUST 31, 1942, AND THAT HE WAS PAID IN ACCORDANCE WITH THAT DETERMINATION. YOU WERE FULLY INFORMED CONCERNING THE MATTER IN LETTER OF FEBRUARY 14, 1962, BY THE DEPARTMENT OF THE NAVY. UNDER THE EXPRESS TERMS OF THE ACT, ADMINISTRATIVE DETERMINATIONS AS TO ENTITLEMENT ARE "CONCLUSIVE.' 50 U.S.C., APPEN. 1009. THEREFORE, IN VIEW OF THE DETERMINATION OF THE DEPARTMENT OF THE NAVY JUST MENTIONED AND THE FINALITY (CONCLUSIVENESS) REQUIRED BY LAW TO BE GIVEN THAT DETERMINATION, THERE IS NO AMOUNT DUE FOR WHICH WE COULD STATE A SETTLEMENT IN YOUR FAVOR, EVEN IF THE 1940 ACT WERE INAPPLICABLE.