B-155890, MAR. 3, 1965

B-155890, MAR. 3, 1965

TO MR. DECATOR STRONG:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 1, 1964, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR CERTAIN MONTHLY FAMILY ALLOWANCE PAYMENTS (CLASS F) WHICH WERE COVERED BY $22 MONTHLY DEDUCTIONS FROM YOUR PAY AS AN ENLISTED MEMBER OF THE ARMY DURING WORLD WAR II AND WHICH YOU ALLEGE WERE NOT RECEIVED BY YOUR MOTHER PRIOR TO HER DEATH ON SEPTEMBER 7, 1945. WE ALSO HAVE BEFORE US YOUR LETTER OF FEBRUARY 7, 1965.

THIS OFFICE WAS FIRST PLACED ON NOTICE OF YOUR CLAIM ON OCTOBER 8, 1964, WHEN THERE WAS RECEIVED FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOUR LETTERS OF AUGUST 2 AND OCTOBER 24, 1963, AND MARCH 23 AND JULY 16, 1964, IN WHICH YOU SAY, AMONG OTHER THINGS, THAT BEGINNING IN JUNE 1942 DEDUCTIONS OF $22 PER MONTH WERE MADE FROM YOUR PAY FOR THE FAMILY ALLOWANCE IN FAVOR OF YOUR MOTHER AND THAT SHE DID NOT RECEIVE SOME FAMILY ALLOWANCE PAYMENTS MADE BETWEEN THE PERIOD OCTOBER 1943. ALSO, YOU INDICATE IN THOSE LETTERS THAT YOUR LATE MOTHER DID NOT RECEIVE SOME FAMILY ALLOWANCE PAYMENTS MADE BETWEEN THE PERIOD OCTOBER 1943 AND SEPTEMBER 1945 AND THAT CERTAIN MONEYS WERE COLLECTED BY SETOFF FROM YOUR PAY ON ACCOUNT OF 3 FAMILY ALLOWANCE CHECKS WHICH WERE MAILED TO YOUR MOTHER AFTER HER DEATH. THE FINANCE CENTER ALSO FURNISHED US WITH COPIES OF THEIR LETTERS OF DECEMBER 17, 1963, AND JULY 13, 1964, INFORMING YOU THAT ALL RECORDS PERTAINING TO FAMILY ALLOWANCE CHECKS HAVE BEEN DESTROYED AND THAT THERE IS NO AUTHORITY TO PAY YOU THE GOVERNMENT'S MONTHLY CONTRIBUTION OF $28 TO THE FAMILY ALLOWANCE PAYMENTS OF $50 PER MONTH SINCE SUCH CONTRIBUTION WAS NOT PAYABLE TO A PERSON OTHER THAN THE ONE ENTITLED, THAT IS, YOUR MOTHER.

SINCE YOU HAD NOT FILED A CLAIM IN THIS OFFICE PRIOR TO OCTOBER 8,1964, DATE OF RECEIPT OF YOUR CLAIM, FOR THE FAMILY ALLOWANCE PAYMENTS, AND SINCE ON THAT DATE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED SINCE THE ACCRUAL OF THE CLAIM, THAT IS, FROM THE DATES THE FAMILY ALLOWANCE PAYMENTS WERE NOT RECEIVED BY YOUR MOTHER, AS ALLEGED, OUR CLAIMS DIVISION, PURSUANT TO THE ACT OF OCTOBER 9, 1940, RETURNED YOUR CLAIM ON OCTOBER 27, 1964, WITH A COPY OF THAT ACT AND ADVISED YOU THAT YOUR CLAIM WAS BARRED. THE DIVISION FURTHER CONSIDERED YOUR CLAIM AFTER RECEIPT OF YOUR LETTER OF OCTOBER 30, 1964, ASSERTING THAT YOU HAVE BEEN CLAIMING THE FAMILY ALLOWANCES SINCE JUNE 1946 AND THAT IT WAS NOT YOUR FAULT THAT YOUR MOTHER DID NOT RECEIVE THOSE ALLOWANCES. BY LETTER OF NOVEMBER 24, 1964, YOU WERE ADVISED OF THE EFFECT OF THE ACT OF OCTOBER 9, 1940, AND THAT THE FILING OF A CLAIM WITH THE DEPARTMENT OF THE ARMY DID NOT CONSTITUTE THE FILING OF A CLAIM WITH THIS OFFICE WITHIN THE MEANING OF THAT ACT.

IN YOUR LETTER OF DECEMBER 1, 1964, YOU AGAIN SAY THAT YOU PRESENTED A CLAIM FOR THE FAMILY ALLOWANCES IN 1946 AND THAT PAYMENT SHOULD HAVE BEEN MADE TO YOU WITHIN THE 10-YEAR TIME LIMITATION BECAUSE YOU BELIEVE THAT THE RECORDS SHOW THAT YOU ARE ENTITLED TO PAYMENT. THE FINANCE CENTER WHEN REFERRING YOUR CLAIM TO THIS OFFICE ON SEPTEMBER 30, 1964, ADVISED IN THEIR TRANSMITTAL LETTER THAT THE FIRST CLAIM FROM YOU ON FILE IN THEIR OFFICE IS DATED AUGUST 2, 1963. ALSO, AS YOU WERE PREVIOUSLY INFORMED BY THAT CENTER, ALL FAMILY ALLOWANCE RECORDS AND ALLIED DOCUMENTS ARE DESTROYED 12 YEARS AFTER THE DISCHARGE OF THE MEMBER AND, THEREFORE, NO RECORDS ARE NOW AVAILABLE REFLECTING THE CREDITS AND CHARGES IN YOUR FAMILY ALLOWANCE ACCOUNT.

THE SOLE PROVISION OF LAW WHICH IS APPLICABLE TO THE CONSIDERATION OF YOUR CLAIM AND WHICH GOVERNS THE ACTION TO BE TAKEN BY THIS OFFICE THEREON IS THE ABOVE-MENTIONED ACT OF OCTOBER 9, 1940. THAT ACT, CODIFIED IN 31 U.S.C. 71A, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.

"SEC. 2. WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

YOU WILL OBSERVE THAT THE ACT OF OCTOBER 9, 1940, IS CLEAR AND UNAMBIGUOUS. IT PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM IS FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS AFTER THE DATE IT ACCRUED. ANY CLAIM RECEIVED IN THE GENERAL ACCOUNTING OFFICE AFTER THE EXPIRATION OF THAT PRESCRIBED PERIOD OF TIME CANNOT BE CONSIDERED, REGARDLESS OF ANY PARTICULAR FACTS OR CIRCUMSTANCES. THUS, SINCE YOUR CLAIM WAS RECEIVED HERE ON A DATE WHICH WAS MORE THAN 10 YEARS FROM THE DATE THE CLAIM FIRST ACCRUED, IT WAS BARRED BY LAW. EVEN IF THE RECORD WERE TO SHOW THAT YOU HAD FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY WITHIN THE 10-YEAR STATUTORY TIME LIMITATION, THIS OFFICE WOULD BE WITHOUT JURISDICTION TO CONSIDER YOUR CLAIM INASMUCH AS IT WAS RECEIVED HERE AFTER THE EXPIRATION OF THE PRESCRIBED 10-YEAR PERIOD.

SINCE THE ACT OF OCTOBER 9, 1940, DOES NOT PERMIT ANY EXCEPTION IN THE APPLICATION OF ITS PROVISIONS, NOR DOES IT VEST IN THIS OFFICE AUTHORITY TO WAIVE SUCH PROVISIONS, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT YOUR CLAIM IS BARRED FROM CONSIDERATION BY LAW AND, ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN THEREON.