B-167750, SEP 5, 1969

B-167750, SEP 5, 1969

MILITARY - ARREARS OF PAY - WORLD WAR II SERVICE DECISION TO CLAIMANT DENYING CONSIDERATION OF CLAIM FOR ARREARS OF PAY INCIDENT TO SERVICE IN USAFFE DURING WORLD WAR II. SINCE CLAIM WAS NOT RECEIVED IN GAO WITHIN 10 YEARS OF DATE OF ACCRUAL CONSIDERATION IS BARRED UNDER 31 U.S.C. 71A.

TO MR. MAXIMO G. FERNANDEZ:

FURTHER REFERENCE IS MADE TO YOUR LETTER POSTMARKED JULY 29, 1969, IN EFFECT REQUESTING REVIEW OF THE ACTION HERETOFORE TAKEN ON YOUR CLAIM FOR ARREARS OF PAY BELIEVED DUE INCIDENT TO YOUR SERVICE IN THE USAFFE DURING WORLD WAR II. YOU ALSO REQUEST INFORMATION CONCERNING A NATIONAL SERVICE LIFE INSURANCE POLICY WHICH YOU INDICATE WAS ISSUED IN YOUR NAME AT THE TIME OF YOUR INDUCTION INTO MILITARY SERVICE.

OUR FILE SHOWS THAT YOUR CLAIM FOR ARREARS OF PAY WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED SEPTEMBER 14, 1967, NOVEMBER 21, 1968, AND MAY 15, 1969, EACH OF WHICH ADVISED YOU THAT CONSIDERATION OF YOUR CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT READS IN PERTINENT PART:

"(1) EVERY CLAIM OR DEMAND*** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** 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 ***."

IN CONNECTION WITH THE ABOVE-QUOTED ACT, SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THIS OFFICE (GENERAL ACCOUNTING OFFICE).

YOU APPEAR TO BE OF THE OPINION THAT SINCE YOU WERE UNAWARE OF THE EXISTENCE OF THE 1940 ACT AND WERE NOT PROVIDED WITH NOTICE OF ITS PROVISIONS, WE SHOULD FAVORABLY CONSIDER YOUR CLAIM. HOWEVER, THE FACT THAT YOU WERE UNAWARE OF THE PROVISIONS OF THE BARRING ACT PROVIDES NO LEGAL BASIS UPON WHICH THIS OFFICE MAY CONSIDER YOUR CLAIM, SINCE WE ARE WITHOUT AUTHORITY TO WAIVE ANY OF THE PROVISIONS OF THE 1940 ACT OR MAKE ANY EXCEPTIONS TO THE TIME LIMITATION THERE IMPOSED.

ALL CLAIMS FOR MILITARY PAY AND ALLOWANCES ARE GOVERNED BY THE ABOVE QUOTED PROVISIONS OF LAW, WHICH BAR CONSIDERATION OF EVERY CLAIM NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUES. IF YOU WERE UNDERPAID DURING ANY PERIOD OF YOUR MILITARY SERVICE IN THE USAFFE, A RIGHT TO THE AMOUNTS INVOLVED WOULD HAVE ACCRUED NO LATER THAN THE DATE OF YOUR DISCHARGE, WHICH YOUR LETTERS INDICATE OCCURRED LATE IN 1945. THEREFORE, IF THE BAR OF THE 1940 ACT WERE TO BE AVOIDED IN YOUR CASE, IT WAS NECESSARY FOR YOUR CLAIM TO HAVE BEEN RECEIVED IN THIS OFFICE ON OR BEFORE THE 10TH ANNIVERSARY OF YOUR DISCHARGE. OUR FILE SHOWS THAT YOUR CLAIM CONCERNING BACK PAY WAS FIRST RECEIVED HERE AUGUST 21, 1967, MORE THAN 21 YEARS AFTER YOUR DISCHARGE.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY LAW, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.

MATTERS CONCERNING NATIONAL SERVICE LIFE INSURANCE DO NOT COME WITHIN THE JURISDICTION OF THIS OFFICE. THE PROGRAM WITH RESPECT THERETO IS ADMINISTERED EXCLUSIVELY BY THE VETERANS ADMINISTRATION.

ANY INQUIRY YOU MAY HAVE IN THAT REGARD SHOULD BE SENT TO:

DIRECTOR, INSURANCE SERVICE

DEPARTMENT OF VETERANS BENEFITS

VETERANS ADMINISTRATION

VERMONT AVE AND H STREET N.W.

WASHINGTON, D. C. 20420 ..END :