B-163614, MAR. 28, 1968

B-163614, MAR. 28, 1968

TO MRS. VICTORIA M. GAHUB:

THE UNITED STATES VETERANS ADMINISTRATION, MANILA, PHILIPPINES, HAS FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 5, 1968, AND A COPY OF YOUR LETTER OF THE SAME DATE ADDRESSED TO THE DIRECTOR, CLAIMS DIVISION, OF THIS OFFICE, CONCERNING YOUR CLAIM FOR FAMILY ALLOWANCE BELIEVED TO BE DUE YOU INCIDENT TO THE SERVICE OF YOUR SON, FRANCISCO M. GAHUB, AS A MEMBER OF THE UNITED STATES ARMY DURING WORLD WAR II. AS OF THIS DATE, YOUR LETTER OF JANUARY 5, 1968, HAS NOT BEEN RECEIVED.

IN YOUR LETTER DATED APRIL 30, 1967, TO THE WAR DEPARTMENT, OFFICE OF DEPENDENCY BENEFITS, NEWARK, NEW JERSEY, YOU STATED THAT YOUR SON WAS INDUCTED INTO THE MILITARY SERVICE ON FEBRUARY 18, 1943, THAT YOU DID NOT RECEIVE THE FAMILY ALLOWANCE WHICH WAS ALLOTTED BY THAT OFFICE AND THAT YOU WERE ENCLOSING YOUR CLAIM FOR SUCH BENEFITS. IN SUPPORT OF THAT CLAIM, YOU SUBMITTED A COPY OF YOUR SON'S HONORABLE DISCHARGE CERTIFICATE, AN AFFIDAVIT SIGNED BY TWO NEIGHBORS, AND AN EXECUTED APPLICATION FOR FAMILY ALLOWANCE.

SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED BETWEEN THE TIME YOUR SON SERVED IN THE UNITED STATES ARMY (WHEN THE FAMILY ALLOWANCE WAS AUTHORIZED TO BE PAID) AND THE DATE YOUR CLAIM WAS RECEIVED HERE, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AND ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED FROM CONSIDERATION. THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, PROVIDES 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 ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN A LETTER DATED NOVEMBER 15, 1967, IN REPLY TO YOUR LETTER OF AUGUST 31, 1967, OUR CLAIMS DIVISION FULLY ADVISED YOU REGARDING THE APPLICATION OF THE ACT OF OCTOBER 9, 1940, PARTICULARLY THE LIMITATION UPON THE JURISDICTION OF THIS OFFICE TO CONSIDER YOUR CLAIM. YOU WERE ALSO ADVISED THAT THE FACT THAT YOU WERE NOT ACQUAINTED WITH THAT LAW CONSTITUTES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY GIVE CONSIDERATION TO YOUR CLAIM.

IT IS STATED IN YOUR LETTER OF JANUARY 5, 1968, TO THIS OFFICE, AMONG OTHER THINGS, THAT YOU AND YOUR HUSBAND HAD FILED CLAIM FOR THE FAMILY ALLOWANCE ON JULY 24, 1949, A DATE WITHIN THE TIME LIMIT PRESCRIBED BY THE ACT OF OCTOBER 9, 1940. TO CORROBORATE THIS FACT, YOU FURNISHED A COPY OF A LETTER DATED JULY 24, 1949, ADDRESSED TO THE WAR DEPARTMENT, ARMY FINANCE CENTER, OFFICE OF THE CHIEF OF FINANCE, ST. LOUIS, MISSOURI. ALSO YOU SAY THAT YOU CANNOT BE BLAMED FOR THE LATE FILING OF THE CLAIM SINCE YOU AND YOUR SON WERE UNAWARE OF THE 1940 LAW AND THAT THE REPUBLIC OF THE PHILIPPINES BEING AN INDEPENDENT COUNTRY ITS PEOPLE WOULD NOT BE SUBJECT TO THAT LAW AS IT WAS AN ACT OF THE CONGRESS OF THE UNITED STATES.

WHEN YOUR CLAIM FOR THE FAMILY ALLOWANCE INCIDENT TO YOUR SON'S SERVICE WAS RECEIVED IN THIS OFFICE ON JUNE 12, 1967, A PERIOD OF MORE THAN 21 YEARS HAD ELAPSED SINCE THE DATE OF HIS DISCHARGE (JANUARY 29, 1946). ACCORDINGLY, THIS OFFICE HAD NO ALTERNATIVE OTHER THAN TO APPLY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940. THAT ACT SPECIFICALLY PRECLUDES THIS OFFICE FROM CONSIDERING CLAIMS AGAINST THE UNITED STATES GOVERNMENT IF NOT RECEIVED HERE WITHIN THE PRESCRIBED 10 YEAR LIMITATION PERIOD AFTER THE CLAIM FIRST ACCURED.

THE FILING OF A CLAIM WITH THE WAR DEPARTMENT ON JULY 24, 1949, IS NOT A COMPLIANCE WITH THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT CLAIMS BE FILED IN THIS OFFICE.

HOWEVER THAT MAY BE, THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED (37 U.S.C. 201 ET SEQ., (1946 ED.) AUTHORIZING PAYMENT OF THE FAMILY ALLOWANCE, WAS REPEALED BY SECTION 515 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, EXCEPT AS TO CERTAIN SERVICE MEMBERS WHO WERE ON ACTIVE DUTY ON OCTOBER 1, 1949. UPON THE REPEAL OF THAT ACT THERE WAS NO LONGER ANY AUTHORITY FOR THE APPROVAL AND PAYMENT OF THE FAMILY ALLOWANCE. APPLICATIONS WHICH HAD BEEN FILED PRIOR TO OCTOBER 1, 1949, BY MEMBERS ON ACTIVE DUTY ON THAT DATE AND NOT ACTED UPON PRIOR TO THE REPEAL WERE SUBSEQUENTLY AUTHORIZED TO BE CONSIDERED BY SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 797. SINCE YOUR SON WAS NOT IN ACTIVE SERVICE ON OCTOBER 1, 1949, AND SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT DOES NOT APPLY IN YOUR CASE THE REPEAL OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 COMPLETELY ELIMINATED ANY AUTHORITY FOR PAYMENT OF THE ALLOWANCE IN THE CASE OF YOUR SON.

ACCORDINGLY, EVEN IF WE WERE NOT PRECLUDED FROM CONSIDERING YOUR CLAIM BY THE ACT OF OCTOBER 9, 1940, THERE WOULD BE NO LEGAL BASIS UPON WHICH WE COULD GIVE IT FAVORABLE CONSIDERATION.