B-144246, NOV. 10, 1960

B-144246, NOV. 10, 1960

TO MR. WILLIAM H. COLVIN, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 15, 1960, AND ENCLOSURES, ADDRESSED TO THE UNITED STATES NAVY FINANCE CENTER, DEPARTMENT OF THE NAVY, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM, AS GUARDIAN, FOR ADDITIONAL RETIREMENT PAY BELIEVED TO BE DUE SIDNEY E. REEVES, USN, RETIRED, UNDER THE PROVISIONS OF THE ACT OF AUGUST 8, 1946, 60 STAT. 908.

IN YOUR LETTER, YOU URGE THAT CONGRESS BE REQUESTED TO APPROPRIATE FUNDS TO PAY THE CLAIM FOR ADDITIONAL RETIREMENT PAY BELIEVED TO BE DUE THE MEMBER FOR THE PERIOD PRIOR TO MARCH 1, 1950. THE ACT OF APRIL 10, 1928, 45 STAT. 413 (CODIFIED IN 31 U.S.C. 236), IS CITED AS THE AUTHORITY FOR US TO MAKE SUCH A REQUEST. THAT ACT PROVIDES AS FOLLOWS (QUOTING FROM 31 U.S.C. 236):

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

UPON RECEIPT OF THE CLAIM IN QUESTION IN OUR OFFICE, THERE WAS ALLOWED THE AMOUNT OF RETIREMENT PAY FOUND DUE ($2,105.22) FOR THE PERIOD MARCH 1, 1950, TO JUNE 30, 1954. THE REASON THAT OUR SETTLEMENT COVERED ONLY THE 10-YEAR PERIOD PRIOR TO THE DATE THE CLAIM WAS RECEIVED HERE ON MARCH 1, 1960, IS THAT THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A AND 237, PRECLUDES US FROM CONSIDERING A CLAIM UNLESS IT IS RECEIVED IN THIS OFFICE WITHIN TEN YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"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.'

IN VIEW OF THE EXPRESS TERMS OF THE ABOVE-QUOTED STATUTE, THE 10 YEAR LIMITATION PERIOD PROVIDED FOR APPLIES NOT ONLY TO CLAIMS COGNIZABLE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921 (OUR GENERAL CLAIMS SETTLEMENT AUTHORITY), WHICH MAY BE PAID FROM AVAILABLE APPROPRIATIONS, BUT ALSO TO CLAIMS COGNIZABLE UNDER THE ACT OF APRIL 10, 1928. THEREFORE, WE HAVE NO MORE AUTHORITY TO ATTEMPT TO DEVELOP CLAIMS FOR PROCESSING UNDER THE PROCEDURE OF THE 1928 STATUTE THAN WE HAVE FOR SIMILAR ACTION REGARDING CLAIMS FOR PROCESSING IN THE USUAL MANNER UNDER SECTION 305 OF THE 1921 STATUTE. IT FOLLOWS AS A MATTER OF LAW, ASIDE FROM ANY OTHER CONSIDERATION, THAT WE MAY NOT REPORT TO CONGRESS THE BARRED PORTION OF THE CLAIM.

UNDER THE ABOVE-QUOTED PROVISIONS OF THE 1940 STATUTE, A CLAIM MUST BE FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE TIME PROVIDED, BY THE PERSON ENTITLED TO PAYMENT (OR HIS AGENT OR ATTORNEY) TO BE ENTITLED TO CONSIDERATION. THE FACT THAT A CLAIM MAY HAVE BEEN FILED WITH SOME OTHER OFFICE OR DEPARTMENT OF THE GOVERNMENT WOULD NOT SATISFY THE REQUIREMENTS OF THE STATUTE. THE PURPOSE OF THE STATUTE IS TO BAR PAYMENT OF STALE CLAIMS. THE LIMITATION PRESCRIBED BY THE STATUTE, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATIONS, BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC CO. V. MELLON. 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, 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. CF. 25 COMP. GEN. 670; 32 ID. 267.

ACCORDINGLY, SINCE THE CLAIM WAS NOT RECEIVED IN OUR OFFICE PRIOR TO MARCH 1, 1960, WE TRUST THAT YOU WILL UNDERSTAND THAT FURTHER CONSIDERATION THEREOF IS PRECLUDED BY LAW AND THAT NO ACTION MAY BE TAKEN ON YOUR REQUEST BY OUR OFFICE.