B-151865, JUL. 18, 1963

B-151865, JUL. 18, 1963

TO MR. MILTON COCKRELL:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1963, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1178, 1181, BARRING YOUR CLAIM FOR CLASS F ALLOTMENT DEDUCTIONS WHICH YOU APPEAR TO BELIEVE WERE MADE FROM YOUR ARMY PAY FOR THE PERIOD SUBSEQUENT TO YOUR MOTHER'S DEATH ON JUNE 17, 1946, UNTIL THE FIRST PART OF 1948.

YOU CLAIM DATED JULY 9, 1962, WAS ADDRESSED TO THE FINANCE OFFICER U.S. ARMY, INDIANAPOLIS, INDIANA, AND INASMUCH AS MORE THAN 10 YEARS HAD ELAPSED SINCE 1948, THE END OF THE PERIOD INVOLVED IN YOUR CLAIM, IT WAS FORWARDED HERE FROM THE ARMY FINANCE CENTER BY LETTER DATED AUGUST 31, 1962, FOR CONSIDERATION UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940. THUS, YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 4, 1962, AND ON SEPTEMBER 13, 1962, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIM WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES (QUOTING FROM 31 U.S.C. 71A) IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

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

BY LETTER OF MAY 23, 1963, YOU REQUESTED RECONSIDERATION OF THE MATTER ON THE BASIS THAT YOU HAD FILED SEVERAL CLAIMS (PRESUMABLY WITH THE DEPARTMENT OF THE ARMY) DURING THE PAST 10 OR 12 YEARS AND OUR REPLY OF SEPTEMBER 13, 1962, WAS THE FIRST ANSWER YOU RECEIVED. IN RESPONSE YOU WERE ADVISED BY OFFICE LETTER DATED JUNE 7, 1963, IN SUBSTANCE THAT THIS OFFICE HAS NO AUTHORITY TO CONSIDER YOUR CLAIM BECAUSE THE ACT OF OCTOBER 9, 1940, REQUIRES THAT CLAIMS MUST BE TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE AND A FILING WITH SOME OTHER AGENCY OF THE GOVERNMENT, SUCH AS THE DEPARTMENT OF THE ARMY, WITHIN 10 YEARS AFTER YOUR CLAIM FIRST ACCRUED DOES NOT MEET THE REQUIREMENTS OF THE ACT.

IN YOUR PRESENT LETTER YOU REPEAT YOUR CLAIM AND REQUEST RECONSIDERATION APPARENTLY WITHOUT REGARD TO THE 10-YEAR PERIOD FOR THE PRINCIPAL REASON THAT NOT HAVING PREVIOUSLY RECEIVED A COPY OF THE ACT OF OCTOBER 9, 1940, YOU WERE UNFAMILIAR WITH ITS PROVISIONS AND IT IS NO FAULT OF YOURS THAT YOUR EARLIER CLAIMS WERE NOT FORWARDED TO OUR OFFICE. YOU ALSO REQUEST TO BE ADVISED AS TO WHEN YOUR CLAIM WAS BARRED AND WHY.

IN CASES SUCH AS YOURS THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF A CLAIM FILED HERE LATER THAN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED AND IT CONTAINS NO EXCEPTION WHICH WOULD PERMIT US TO CONSIDER CLAIMS OF INDIVIDUALS WHICH WERE TIMELY FILED BUT WITH ANOTHER AGENCY. THE RECORD BEFORE US DOES NOT SHOW WHETHER OR NOT ANY CLASS F DEDUCTIONS WERE ERRONEOUSLY MADE FROM YOUR PAY. HOWEVER, ANY RIGHT YOU MAY HAVE HAD FOR REFUND OF AMOUNTS ERRONEOUSLY WITHHELD FROM YOUR MONTHLY PAY FOR CLASS F ALLOTMENT DURING THE PERIOD SUBSEQUENT TO JUNE 17, 1946, UNTIL THE FIRST PART OF 1948 ACCRUED TO YOU AT THE TIME OF EACH ERRONEOUS WITHHOLDING AND EXPIRED 10 YEARS THEREAFTER, EXCLUDING ALL SUBSEQUENT PERIODS DURING WHICH YOU WERE ON ACTIVE DUTY IN THE MILITARY SERVICE. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT EXCLUDING ALL SUBSEQUENT PERIODS OF ACTIVE MILITARY SERVICE, MORE THAN 10 YEARS HAD ELAPSED BETWEEN THE TIME YOUR CLAIM ACCRUED AND SEPTEMBER 4, 1962, WHEN YOUR CLAIM OF JULY 9, 1962, WAS RECEIVED HERE. THERE IS NO RECORD OF ANY CLAIM BY YOU BEING RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT TIME.

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. COMPARE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. EVEN THOUGH YOU WERE NOT AWARE OF THE PROVISIONS OF THE ABOVE ACT AND MAY HAVE FILED PREVIOUS CLAIMS WITH ANOTHER GOVERNMENT AGENCY, WE MAY MAKE NO EXCEPTION TO THE PROVISIONS OF THE ACT FOR SUCH REASONS, NOR MAY WE GRANT ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. DION V. UNITED STATES, 137 CT.CL. 166.

SINCE THE PRESENT RECORD DOES NOT SHOW THAT YOUR CLAIM WAS RECEIVED HERE WITHIN THE REQUIRED PERIOD AFTER THE DATE ANY RIGHTS MAY HAVE ACCRUED TO YOU, WE ARE PRECLUDED BY THE LAW FROM GIVING IT ANY CONSIDERATION AND NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.