B-146274, JUL. 12, 1961

B-146274, JUL. 12, 1961

TO MR. IGMIDIO N. CRUEL:

WE HAVE FOR CONSIDERATION AND REPLY YOUR LETTER OF MAY 13, 1961, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1178, 1181, BARRING YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED DUE INCIDENT TO YOUR SERVICE FROM AUGUST 6, 1946, TO YOUR DATE OF DISCHARGE, APRIL 30, 1949, AS A MEMBER OF THE PHILIPPINE SCOUTS.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 5, 1960, AND ON AUGUST 17, 1960, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIM WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES (QUOTING FROM 31 U.S.C. 71A) IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * 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, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED:* *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH SECTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

BY LETTER OF DECEMBER 13, 1960, YOU REQUESTED RECONSIDERATION OF THE MATTER FOR THE PRINCIPAL REASON THAT IN MARCH 1958, YOU HAD FILED A CLAIM WITH THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA. IN RESPONSE YOU WERE ADVISED BY OFFICE LETTER DATED FEBRUARY 20, 1961, IN SUBSTANCE THAT THIS OFFICE HAS NO AUTHORITY TO CONSIDER YOUR CLAIM BECAUSE THE ACT OF OCTOBER 9, 1940, REQUIRES THAT CLAIMS MUST BE TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE AND A FILING WITH SOME OTHER AGENCY OF THE GOVERNMENT DID NOT MEET THE REQUIREMENTS.

IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIM AND REQUEST RECONSIDERATION APPARENTLY WITHOUT REGARD TO THE TEN-YEAR PERIOD FOR THE REASON THAT HAD YOU BEEN ADVISED IN 1958 TO ADDRESS YOUR CLAIM TO THE GENERAL ACCOUNTING OFFICE INSTEAD OF THE ARMY FINANCE CENTER THE CLAIM WOULD HAVE BEEN FILED WITH US WITHIN THE PRESCRIBED PERIOD. IN CASES SUCH AS YOURS THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF A CLAIM FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED AND IT CONTAINS NO EXCEPTION WHICH WOULD PERMIT US TO CONSIDER CLAIMS OF INDIVIDUALS WHICH WERE TIMELY FILED BUT WITH A DIFFERENT AGENCY. ANY RIGHT YOU MAY HAVE HAD TO PAY AND ALLOWANCES FOR THE SERVICE INVOLVED IN YOUR CLAIM ACCRUED TO YOU NOT LATER THAN THE DATE OF YOUR DISCHARGE APRIL 30, 1949. THE TEN-YEAR PERIOD IN YOUR CASE EXPIRED APRIL 30, 1959, AND THERE IS NO RECORD OF ANY CLAIM BY YOU BEING RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT TIME.

THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE IS NOT A MERE STATUTE OF LIMITATION BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. COMPARE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. EVEN THOUGH YOU WERE NOT ADVISED IN 1958 TO FILE YOUR CLAIM WITH US INSTEAD OF THE ARMY FINANCE CENTER, WE MAY MAKE NO EXCEPTION TO THE PROVISIONS OF THE ABOVE ACT FOR SUCH REASON, NOR MAY WE GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. DION V. UNITED STATES, 137 CT.CL. 166.

SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE ANY RIGHT MAY HAVE ACCRUED, WE ARE PRECLUDED BY THE LAW FROM GIVING IT ANY CONSIDERATION AND NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.

IN YOUR LETTER OF MARCH 25, 1958, YOU CLAIMED ADDITIONAL PAY UNDER PUBLIC LAW 359 APPROVED OCTOBER 12, 1949. APPARENTLY YOU HAVE REFERENCE TO THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351 APPROVED OCTOBER 12, 1949, 63 STAT. 802. THAT ACT, BY ITS OWN TERMS, WAS MADE EFFECTIVE OCTOBER 1, 1949 (WITH CERTAIN EXCEPTIONS NOT MATERIAL IN YOUR CASE), AND AUTHORIZED NO RETROACTIVE PAY FOR ANY PERIOD PRIOR TO SUCH EFFECTIVE DATE. THEREFORE EVEN IF YOUR CLAIM WERE NOT BARRED THAT ACT WOULD CONSTITUTE NO AUTHORITY TO PAY YOU AN ADDITIONAL AMOUNT SINCE YOU WERE DISCHARGED PRIOR TO ITS EFFECTIVE DATE.