B-107792, DEC. 12, 1961

B-107792, DEC. 12, 1961

TO ANSELL AND ANSELL:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 9, 1961, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 7, 1961, BY WHICH THE SUM OF $2,895.85 WAS ALLOWED CAPTAIN REUBEN RAPAPORT, AUS, RETIRED, AS ADJUSTMENT OF RETIRED PAY FOR THE PERIOD FROM MARCH 31, 1951, THROUGH MAY 31, 1961, ON THE BASIS OF THE DECISION IN THE CASE OF WATMAN V. UNITED STATES, CT.CL.NO. 189-59, DECIDED MARCH 1, 1961, AND CONSIDERATION OF THE PORTION OF THE CLAIM FOR THE PERIOD PRIOR TO MARCH 31, 1951, WAS REFUSED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A.

IN YOUR LETTER YOU ASSERT THAT THE 10-YEAR PERIOD OF LIMITATION CONTAINED IN THE 1940 ACT HAS NO APPLICATION TO ANY PART OF THIS CLAIM FOR THE REASON THAT CAPTAIN RAPAPORT PROTESTED THE SUSPENSION OF PAYMENT OF HIS RETIRED PAY BY HIS LETTER OF JULY 2, 1953, TO THE DEPARTMENT OF THE ARMY. YOU ALSO CONTEND THAT RETIRED PAY SHOULD HAVE BEEN ALLOWED FOR THE PERIOD MARCH 1 TO 30, 1951, IN ANY EVENT, SINCE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN UNTIL APRIL 1, 1951.

WHILE THE COURT OF CLAIMS, IN ADMINISTERING THE PROVISIONS OF 28 U.S.C. 2501 RELATING TO THE BARRING OF CLAIMS OVER WHICH THE COURT HAS JURISDICTION UNLESS THE PETITION THEREON IS FILED WITHIN 6 YEARS AFTER SUCH CLAIM FIRST ACCRUES, HAS ALLOWED RETIRED PAY FROM THE FIRST DAY OF THE MONTH IN WHICH THE 6-YEAR LIMITATION PERIOD BEGAN, THAT RULE HAS NOT BEEN ADOPTED BY THIS OFFICE IN APPLYING THE PROVISIONS OF THE 1940 ACT. WHILE IT APPEARS THAT THE COURT REGARDS A CAUSE OF ACTION AS NOT ARISING UNTIL PAYMENT HAS BEEN REFUSED ON A PARTICULAR PAY DAY, IT IS OUR VIEW THAT SINCE RETIRED PAY ACTUALLY ACCRUES ON A DAY-TO-DAY BASIS, THE 10-YEAR LIMITATION PERIOD RUNS ON THE SAME BASIS AND WITHOUT REGARD TO THE DATES PERIODIC PAYMENTS ARE MADE.

THE ACT OF OCTOBER 9, 1940, BY ITS EXPRESS PROVISIONS FOREVER BARS EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE FIRST CLAIM FOR DISABILITY RETIRED PAY IN THE CASE OF CAPTAIN RAPAPORT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WAS THAT FILED BY YOU UNDER DATE OF MARCH 30, 1961, ON HIS BEHALF--- RECEIVED HERE THE FOLLOWING DAY--- FOR THE DIFFERENCE BETWEEN THE VETERANS ADMINISTRATION COMPENSATION RECEIVED BY HIM AND THE DISABILITY RETIREMENT PAY TO WHICH HE WAS ENTITLED UNDER THE DECISION IN THE WATMAN CASE. THE FILING BY CAPTAIN RAPAPORT OF A PROTEST AGAINST THE SUSPENSION OF HIS RETIRED PAY WITH THE DEPARTMENT OF THE ARMY ON JULY 2, 1953, DID NOT MEET THE REQUIREMENTS OF THE STATUTE. 32 COMP. GEN. 267. THE LIMITATION FIXED BY THE STATUTE UPON THE CONSIDERATION OF CLAIMS BY THIS OFFICE IS NOT A MERE STATUTE OF LIMITATIONS BUT IT IS A CONDITION PRECEDENT TO A 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. THUS, NO MATTER HOW MERITORIOUS A CLAIM MAY BE, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED BY OUR OFFICE.

THE 1940 ACT REQUIRES THAT NO CONSIDERATION BE GIVEN THAT PORTION OF THE CLAIM WHICH AROSE PRIOR TO MARCH 31, 1951. ACCORDINGLY, THE SETTLEMENT OF AUGUST 7, 1961, IS SUSTAINED.