B-142002, FEB. 29, 1960

B-142002, FEB. 29, 1960

TO MR. BENEDICTO S. MALAIT:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 19, 1959, 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 ADDITIONAL PAY AND ALLOWANCES AND MUSTERING-OUT PAY AND OTHER BENEFITS BELIEVED DUE AT THE DATE OF YOUR DISCHARGE ON FEBRUARY 4, 1949, AS A PHILIPPINE SCOUT.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MAY 18, 1959, AND ON JULY 1, 1959, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT CONSIDERATION OF YOUR CLAIM FOR ,MUSTERING-OUT PAY" AND "OTHER CASH ON PAY AND ALLOWANCES" WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) 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, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

BY LETTER DATED NOVEMBER 4, 1959, YOU AGAIN WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE THE CLAIM FIRST ACCRUED AND THE DATE IT WAS FIRST RECEIVED IN THIS OFFICE.

IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIM AND ASK THAT IT BE SETTLED ON ITS MERITS, APPARENTLY WITHOUT REGARD TO THE 10-YEAR STATUTE OF LIMITATIONS WHICH YOU WERE ADVISED OF IN OUR PRIOR COMMUNICATIONS. EXCEPT IN THE CASE OF CERTAIN MEMBERS OF THE MILITARY AND NAVAL FORCES, THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED. THE FACT THAT YOU MAY HAVE FILED A CLAIM WITH THE FINANCE CENTER, U.S. ARMY, WITHIN THE 10-YEAR PERIOD WOULD NOT SATISFY THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940. ANY RIGHT YOU MAY HAVE HAD TO THE ITEMS INVOLVED IN YOUR CLAIM ACCRUED TO YOU NOT LATER THAN FEBRUARY 4, 1949, THE DATE OF YOUR DISCHARGE, AND YOU DO NOT APPEAR TO HAVE BEEN A MEMBER OF THE MILITARY OR NAVAL FORCES AFTER THAT DATE. THE 10-YEAR PERIOD IN YOUR CASE EXPIRED ON FEBRUARY 3, 1959. THERE IS NO RECORD OF ANY CLAIM BY YOU BEING RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE.

THE LIMITATION, PRESCRIBED BY THE STATUTE, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATIONS BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267. CONCERNING YOUR REQUEST FOR INFORMATION AS TO OTHER REMEDIES AVAILABLE TO YOU, IT MAY BE STATED THAT CERTAIN CLAIMS MAY BE MADE THE BASIS OF SUITS IN THE UNITED STATES COURT OF CLAIMS. HOWEVER, SUCH SUITS, IF FILED, MUST BE COMMENCED WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUED. 28 U.S.C. 2501.

ACCORDINGLY, YOUR CLAIM NOT HAVING BEEN RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE IT ACCRUED, WE TRUST THAT YOU WILL UNDERSTAND THAT IT IS PRECLUDED FROM OUR CONSIDERATION BY LAW AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.