B-128860, DEC. 4, 1957
Highlights
SANCHEZ: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 1. IN THAT DECISION YOU WERE ADVISED. THAT SINCE ENTITLEMENT TO BENEFITS UNDER THE MISSING PERSONS ACT DOES NOT ACCRUE UNTIL AN ADMINISTRATIVE DETERMINATION AS TO DEATH OR OTHER STATUS IS MADE AND THAT SINCE A DETERMINATION UNDER THAT ACT AS TO YOUR STATUS FOR THE PERIOD FROM DECEMBER 9. WAS NOT MADE UNTIL SEPTEMBER 17. YOUR CLAIM FOR PAY FOR THAT PERIOD WAS NOT BARRED BY THE ACT OF OCTOBER 9. YOU WERE ADVISED THAT YOUR ENTITLEMENT TO PAY FOR THAT PERIOD WAS NOT WITHIN THE PURVIEW OF THE MISSING PERSONS ACT. THAT SINCE YOUR CLAIM FOR PAY FOR THAT PERIOD WAS NOT RECEIVED IN OUR OFFICE UNTIL JANUARY 3. - IT WAS BARRED BY THE EXPRESS TERMS OF THE ACT OF OCTOBER 9.
B-128860, DEC. 4, 1957
TO MR. CIRIACO E. SANCHEZ:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 1, 1957, ADDRESSED TO THE SECRETARY OF THE ARMY, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION DATED OCTOBER 3, 1956, B-128860, RESPECTING YOUR CLAIM FOR ARREARS OF PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS.
IN THAT DECISION YOU WERE ADVISED, AMONG OTHER THINGS, THAT SINCE ENTITLEMENT TO BENEFITS UNDER THE MISSING PERSONS ACT DOES NOT ACCRUE UNTIL AN ADMINISTRATIVE DETERMINATION AS TO DEATH OR OTHER STATUS IS MADE AND THAT SINCE A DETERMINATION UNDER THAT ACT AS TO YOUR STATUS FOR THE PERIOD FROM DECEMBER 9, 1941, TO JUNE 12, 1942, WAS NOT MADE UNTIL SEPTEMBER 17, 1952, YOUR CLAIM FOR PAY FOR THAT PERIOD WAS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. REGARDING YOUR CLAIM FOR PAY FOR THE PERIOD FROM FEBRUARY 11 TO JULY 21, 1945, HOWEVER, YOU WERE ADVISED THAT YOUR ENTITLEMENT TO PAY FOR THAT PERIOD WAS NOT WITHIN THE PURVIEW OF THE MISSING PERSONS ACT; THAT YOUR CLAIM FOR PAY FOR SUCH PERIOD ACCRUED ON A DAILY BASIS; AND THAT SINCE YOUR CLAIM FOR PAY FOR THAT PERIOD WAS NOT RECEIVED IN OUR OFFICE UNTIL JANUARY 3, 1956--- MORE THAN 10 YEARS AFTER THE CLAIM ACCRUED--- IT WAS BARRED BY THE EXPRESS TERMS OF THE ACT OF OCTOBER 9, 1940.
IT APPEARS TO BE YOUR PRINCIPAL CONTENTION THAT SINCE A DETERMINATION AS TO YOUR MILITARY STATUS FOR THE PERIOD FROM FEBRUARY 11 TO JULY 21, 1945, WAS NOT MADE BY THE ADJUTANT GENERAL UNTIL FEBRUARY 24, 1953, THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, SHOULD NOT BE CONSIDERED AS APPLICABLE TO YOUR CLAIM FOR PAY FOR THAT PERIOD.
RESPECTING THAT CONTENTION, YOUR ATTENTION IS AGAIN INVITED TO THE FACT THAT THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN 10 FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED, OR, IF THE CLAIMS ARE THOSE OF SERVICE PERSONNEL WHICH ACCRUED IN TIME OF WAR, THEY MAY NOT BE CONSIDERED IF FILED MORE THAN 5 YEARS AFTER PEACE IS ESTABLISHED. THE RIGHT TO THE PAY HERE INVOLVED FIRST ACCRUED TO YOU IN 1945 AND YOUR CLAIM WAS NOT RECEIVED HERE UNTIL JANUARY 3, 1956. NOR WAS THE CLAIM FILED HERE WITHIN 5 YEARS AFTER JULY 25, 1947, WHICH WAS THE DATE FIXED BY STATUTE AS THE DATE TO BE USED IN DETERMINING THE 5-YEAR PERIOD PROVIDED BY THE ACT OF OCTOBER 9, 1940, AS APPLICABLE, IN SPECIFIED CIRCUMSTANCES, TO CLAIMS OF SERVICE PERSONNEL.
THE LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATION BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, EVEN THOUGH ALL OR A PART OF THE DELAY IN FILING A CLAIM MAY RESULT FROM THE FAILURE OF THE ADMINISTRATIVE OFFICE TO TAKE PROMPT ACTION IN THE MATTER, OUR OFFICE CAN MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE NOR GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. SEE, ALSO, 25 COMP. GEN. 670; 32 ID. 267.
ACCORDINGLY, YOUR CLAIM FOR PAY FOR THE PERIOD FROM FEBRUARY 11 TO JULY 21, 1945, WAS PROPERLY DENIED.
IT MAY BE STATED THAT SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, WAS FURTHER AMENDED BY PUBLIC LAW 85-217, APPROVED AUGUST 29, 1957, 71 STAT. 491, RESPECTING THE RIGHTS OF PHILIPPINE SCOUTS WHO WERE CAPTURED IN THE PHILIPPINE ISLANDS BY THE ENEMY DURING WORLD WAR II AND WHO WERE PAROLED AND PERMITTED TO RETURN HOME PRIOR TO THE TERMINATION OF THE JAPANESE OCCUPATION. ANY CLAIM UNDER THE PROVISIONS OF THAT AMENDMENT SHOULD BE PRESENTED PROMPTLY TO THE DEPARTMENT OF THE ARMY.