B-148098, FEB. 15, 1962
Highlights
WAS RECEIVED IN THE DEPARTMENT OF THE ARMY AND HAS BEEN REFERRED HERE FOR REPLY. THAT YOUR CLAIM WAS DISALLOWED BY THE DEPARTMENT OF THE ARMY FOR THE REASON THAT IT WAS NOT TIMELY FILED. YOU APPEALED THAT ADMINISTRATIVE ACTION AND YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED NOVEMBER 30. YOU WERE ENTITLED TO PAYMENT FOR THE ACCRUED AND UNUSED LEAVE TO YOUR CREDIT ON DATE OF DISCHARGE. WERE MET. THE LAST DATE FOR MAKING APPLICATION TO THE SECRETARY CONCERNED FOR COMPENSATION FOR SUCH LEAVE WAS FIXED AS JUNE 30. THE LIMITATION ON THE TIME FOR FILING YOUR APPLICATION PRESCRIBED IN SECTION 5 OF THE ARMED FORCES LEAVE ACT OF 1946 CONSTITUTES A STATUTE OF LIMITATION AND IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE YOUR CLAIM CONSIDERED BY THE DEPARTMENT CONCERNED AND THIS OFFICE.
B-148098, FEB. 15, 1962
TO MR. JOHN T. OWENS:
YOUR LETTER POSTMARKED DECEMBER 12, 1961, RELATIVE TO YOUR CLAIM FOR UNUSED LEAVE ACCUMULATED AT THE TIME OF YOUR DISCHARGE FROM THE MILITARY SERVICE ON OCTOBER 2, 1944, WAS RECEIVED IN THE DEPARTMENT OF THE ARMY AND HAS BEEN REFERRED HERE FOR REPLY.
THE RECORDS OF THE FINANCE CENTER, DEPARTMENT OF THE ARMY, SHOW THAT YOU FIRST FILED YOUR CLAIM FOR COMPENSATION FOR THE UNUSED LEAVE IN QUESTION UNDER DATE OF NOVEMBER 27, 1957, AND THAT YOUR CLAIM WAS DISALLOWED BY THE DEPARTMENT OF THE ARMY FOR THE REASON THAT IT WAS NOT TIMELY FILED. YOU APPEALED THAT ADMINISTRATIVE ACTION AND YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED NOVEMBER 30, 1959, FOR THE SAME REASON.
AS AN ENLISTED MEMBER OF THE ARMED FORCES DISCHARGED PRIOR TO AUGUST 9, 1946, YOU WERE ENTITLED TO PAYMENT FOR THE ACCRUED AND UNUSED LEAVE TO YOUR CREDIT ON DATE OF DISCHARGE, PROVIDED THE REQUIREMENTS OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, WERE MET. BY SECTION 5 OF THE 1946 LAW, AS AMENDED BY THE ACT OF APRIL 26, 1950, 64 STAT. 88, THE LAST DATE FOR MAKING APPLICATION TO THE SECRETARY CONCERNED FOR COMPENSATION FOR SUCH LEAVE WAS FIXED AS JUNE 30, 1951. SO FAR AS MATERIAL TO YOUR CLAIM NO FURTHER EXTENSION OF TIME FOR FILING SUCH CLAIM HAS BEEN GRANTED.
THE LIMITATION ON THE TIME FOR FILING YOUR APPLICATION PRESCRIBED IN SECTION 5 OF THE ARMED FORCES LEAVE ACT OF 1946 CONSTITUTES A STATUTE OF LIMITATION AND IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE YOUR CLAIM CONSIDERED BY THE DEPARTMENT CONCERNED AND THIS OFFICE. COMPARE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154. EVEN IF YOU WERE NOT AWARE OF THE PERTINENT LIMITATION IN THE STATUTE, WE MAY NOT GRANT ANY EXTENSION OF TIME WITHIN WHICH YOUR APPLICATION MAY BE FILED. CF. DION V. UNITED STATES, 137 CT.CL. 166. IT FOLLOWS THAT IN ORDER FOR YOUR CLAIM TO BE CONSIDERED YOU MUST FURNISH SPECIFIC EVIDENCE THAT APPLICATION WAS "MADE TO THE SECRETARY NOT LATER THAN JUNE 30, 1951.' SEE 37 U.S.C. 34 (A).
ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM WAS PROPER AND IS SUSTAINED.