B-166039, MAR. 27, 1969

B-166039, MAR. 27, 1969

TO MR. MIGUEL GUALBERTO:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 19, 1968, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR SIX MONTHS' DEATH GRATUITY AND THE AMOUNT BELIEVED DUE IN CONNECTION WITH ACCRUED LEAVE IN THE CASE OF YOUR SON, THE LATE DIOSDADO GUALBERTO, AT THE DATE OF HIS DEATH WHILE SERVING AS A PHILIPPINE SCOUT IN WORLD WAR II.

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JULY 26, 1968, AND OCTOBER 23, 1968, IN WHICH YOU WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY THIS OFFICE 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 * * *.'

YOU CONTEND THAT THE BARRING ACT IS INAPPLICABLE TO YOUR SITUATION FOR THE REASON THAT THE REQUIREMENTS OF THE REGULATIONS TO WHICH YOU REFER, 23 F.R. 8102, OCTOBER 21, 1958, WITH RESPECT TO EXPLAINING RIGHTS AND RESPONSIBILITIES UNDER THE ACT THERE INVOLVED, HAVE NOT BEEN MET. YOU REQUEST THAT YOU BE FURNISHED THE APPROPRIATE FORMS FOR APPEAL PURPOSES AND THAT YOU BE PROVIDED A "SUMMARY" OF THE EVIDENCE PERTINENT TO THE "DISAGREEMENT," CITING PUBLIC LAW 87-666, APPROVED SEPTEMBER 19, 1962, 76 STAT. 553, AS HAVING SOME APPLICATION.

OFFICIAL RECORDS SHOW THAT UNDER THE PROVISIONS OF THE MISSING PERSONS ACT OF 1942, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1001 ET SEQ., IT WAS ADMINISTRATIVELY DETERMINED IN SEPTEMBER 1945 THAT YOUR SON DIED ON OR ABOUT MAY 16, 1942. SETTLEMENT WAS MADE BY THE DEPARTMENT OF THE ARMY UNDER THAT ACT AND INCLUDED ALL PAY AND ALLOWANCES FOR HIS GRADE AND YEARS OF SERVICE THAT ACCRUED TO HIM FROM THE DATE IT APPEARED HE WAS LAST PAID, NOVEMBER 1941, UNTIL SEPTEMBER 4, 1945, THE DATE ON WHICH EVIDENCE CONSIDERED SUFFICIENT TO ESTABLISH HIS DEATH WAS RECEIVED. PAYMENT OF THE AMOUNT FOUND DUE BY THE DEPARTMENT OF THE ARMY TOTALED $820.92 AND WAS MADE TO THE JUDGE ADVOCATE GENERAL OF THE PHILIPPINE ARMY, AS ADMINISTRATOR OF YOUR SON'S ESTATE.

THE DEPARTMENT OF THE ARMY HAS SOLE AUTHORITY TO CONSIDER AND SETTLE ALL CLAIMS UNDER THE MISSING PERSONS ACT, SINCE THAT ACT MAKES SUCH ADMINISTRATIVE SETTLEMENTS FINAL AND CONCLUSIVE ON THIS OFFICE. PRESUMABLY, NO AMOUNT WAS INCLUDED IN THE 1945 SETTLEMENT TO COVER ACCRUED LEAVE, FOR THE REASON THAT AT THAT TIME NO AUTHORITY EXISTED FOR PAYMENT FOR ACCRUED LEAVE. ALSO, SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A (1958 ED.), PROVIDED THAT ACCUMULATED LEAVE "SHALL NOT, HOWEVER, SURVIVE DEATH OCCURRING DURING ACTIVE MILITARY SERVICE.'

CONCERNING YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY, IT APPEARS CLEAR THAT SUCH CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940, SUPRA, SINCE THAT ACT PROVIDES THAT ANY CLAIM NOT RECEIVED HERE WITHIN 10 YEARS OF THE DATE SUCH CLAIM FIRST ACCRUED, SHALL BE FOREVER BARRED. YOUR SON'S DATE OF DEATH WAS DETERMINED ON SEPTEMBER 4, 1945. HENCE, THAT WAS THE DATE THAT YOUR CLAIM FIRST ACCRUED. CONSEQUENTLY, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED THAT CLAIM ON OR BEFORE SEPTEMBER 4, 1955, IN ORDER TO AVOID THE BAR OF THE ACT. OUR RECORDS SHOW THAT YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE ON JANUARY 22, 1968, OVER 22 YEARS LATER. THE 1958 REGULATIONS TO WHICH YOU REFER, 23 F.R. 8102, HAVE NOTHING TO DO WITH THE 1940 BARRING ACT. SUCH REGULATIONS RELATE TO MATTERS COVERED BY THE EX-SERVICEMEN'S UNEMPLOYMENT COMPENSATION ACT OF 1958, PUBLIC LAW 85- 848, 72 STAT. 1087.

ACCORDINGLY, NO FURTHER ACTION BY THIS OFFICE IN CONNECTION WITH YOUR CLAIM WOULD BE APPROPRIATE.

WITH RESPECT TO YOUR CONTENTION THAT PUBLIC LAW 87-666, APPROVED SEPTEMBER 19, 1962, 76 STAT. 553, IS APPLICABLE, YOU ARE ADVISED THAT THE BOARD OF VETERANS' APPEALS AND THE "APPELLATE REVIEW" THERE MENTIONED ARE CONCERNED SOLELY WITH QUESTIONS ON CLAIMS INVOLVING BENEFITS UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION. THE LAWS GOVERNING PAYMENT OF THE DEATH GRATUITY ARE NOT ADMINISTERED BY THE VETERANS ADMINISTRATION.