B-163614, JUL. 8, 1969

B-163614, JUL. 8, 1969

TO MRS. VICTORIA M. GAHUB:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 31, 1969, REQUESTING FURTHER CONSIDERATION OF 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. ALSO THE PRESIDENT OF THE UNITED STATES OF AMERICA HAS REFERRED TO US YOUR LETTER OF THE SAME DATE TO HIM CONCERNING THIS MATTER.

YOUR CLAIM WAS RETURNED TO YOU BY OUR CLAIMS DIVISION WITH ADVICE THAT IT WAS BARRED AND COULD NOT BE CONSIDERED BY THIS OFFICE. THIS ACTION WAS FULLY EXPLAINED TO YOU IN DECISIONS OF MARCH 28 AND DECEMBER 27, 1968, B- 163614.

IN YOUR LETTER OF MARCH 31, 1969, YOU AGAIN SAY THAT YOU FILED A CLAIM FOR FAMILY ALLOWANCE WITH THE DEPARTMENT OF THE ARMY, SAINT LOUIS, MISSOURI, IN 1949 AND THAT IN MAY 1967, BELIEVING THAT THERE WAS NO TIME LIMITATION ON THE FILING OF CLAIMS, YOU FILED A SIMILAR CLAIM WITH THE WAR DEPARTMENT (DEPARTMENT OF THE ARMY), DEPENDENCY BENEFITS OFFICE, NEWARK, NEW JERSEY.

YOU ASSERT THAT THE WAR DEPARTMENT DEPENDENCY BENEFITS OFFICE APPROVED YOUR CLAIM AND RECOMMENDED PAYMENT THEREOF PRIOR TO FINAL ADJUDICATION BY THIS OFFICE. ALSO, YOU SAY THAT YOU ARE CLAIMING FAMILY ALLOWANCES FOR THE PERIOD YOUR SON WAS IN THE MILITARY SERVICE, THAT IS, FROM 1943 TO JANUARY 1946, AND THAT THE PERIOD BETWEEN 1943 UNTIL THE DATE YOU FIRST FILED CLAIM, JULY 24, 1949, IS LESS THAN 10 YEARS, THE TIME LIMITATION PRESCRIBED IN THE ACT OF OCTOBER 9, 1940.

IN THE DECISIONS OF MARCH 28 AND DECEMBER 27, 1968, B-163614, WE POINTED OUT THAT THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, SPECIFICALLY PRECLUDES THIS OFFICE FROM CONSIDERING YOUR CLAIM BECAUSE IT WAS NOT RECEIVED HERE WITHIN 10 YEARS AFTER THE CLAIM FIRST ACCRUED, WHICH WAS DURING YOUR SON'S SERVICE IN THE ARMY. ALSO, IT WAS EXPLAINED TO YOU THAT EVEN IF WE WERE PERMITTED BY LAW TO CONSIDER YOUR CLAIM ON ITS MERITS, NO FAVORABLE ACTION COULD BE TAKEN THEREON.

IN THIS CONNECTION, WE ADVISED YOU THAT THE LAW WHICH GOVERNED THE PAYMENT OF THE FAMILY ALLOWANCE, THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED (37 U.S.C. 201 ET SEQ., (1946 ED) (, WAS REPEALED AND THAT UNDER THE REPEALING LAW, THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, YOUR APPLICATION FOR THE FAMILY ALLOWANCE WHICH WAS FILED PRIOR TO THE EFFECTIVE DATE OF THAT LAW, OCTOBER 1, 1949, COULD NOT BE CONSIDERED AS YOUR SON WAS NOT ON ACTIVE SERVICE ON THAT DATE. HENCE, THERE IS NO LEGAL AUTHORITY EITHER FOR THE CONSIDERATION OR THE PAYMENT OF YOUR CLAIM.

THIS OFFICE IS CHARGED BY LAW WITH THE SETTLEMENT OF CLAIMS SUCH AS YOURS AND OUR SETTLEMENTS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. PRESUMABLY IT WAS FOR THIS REASON THAT THE PRESIDENT REFERRED YOUR LETTER OF MARCH 31, 1969, TO HIM TO THIS OFFICE FOR CONSIDERATION.