B-148761, MAY 17, 1962

B-148761, MAY 17, 1962

TO MR. SAM WELLS:

THERE HAS BEEN REFERRED HERE FOR REPLY YOUR LETTER DATED APRIL 3, 1962, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, IN WHICH YOU AGAIN REQUESTED CONSIDERATION OF YOUR CLAIM FOR TERMINAL LEAVE PAY BELIEVED TO BE DUE YOU AT DATE OF DISCHARGE, FEBRUARY 4, 1947, FROM THE UNITED STATES ARMY AIR FORCE, SERIAL NO. RA 14160012.

SECTION 5 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 965, WHICH AUTHORIZED COMPENSATION FOR UNUSED ACCRUED MILITARY LEAVE UPON SEPARATION PROVIDES AS FOLLOWS:

"IN ANY CASE IN WHICH A MEMBER OF THE ARMED FORCES ON ACTIVE DUTY ON SEPTEMBER 1, 1946 (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SUCH DATE) HAS TO HIS CREDIT ON AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS, SUCH LEAVE IN EXCESS OF SIXTY DAYS SHALL BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN SECTION 6 OF THIS ACT AND IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN SEPTEMBER 1, 1947.'

THE TERMINAL DATE FOR FILING CLAIMS WITH THE APPROPRIATE DEPARTMENT WAS EXTENDED TO JUNE 30, 1951, BY THE ACT OF APRIL 26, 1950, 64 STAT. 88. FURTHER EXTENSIONS WERE MADE, AND SINCE THERE IS NO RECORD IN THIS OFFICE SHOWING THAT YOU FILED A TIMELY APPLICATION UNDER THE STATUTE, IT MUST BE ASSUMED EITHER THAT APPLICATION WAS MADE WITHIN THE PERIOD ALLOWED FOR FILING CLAIMS AND YOU WERE PROPERLY COMPENSATED FOR YOUR TERMINAL LEAVE, OR THAT IF APPLICATION WAS NOT MADE IN TIME, NO CONSIDERATION WAS GIVEN YOUR CLAIM BY THE DEPARTMENT CONCERNED BECAUSE OF THE RESTRICTION AGAINST LATE FILING CONTAINED IN THE STATUTE UNDER WHICH THE BENEFIT WAS PROVIDED.

AS FAR AS THIS OFFICE IS CONCERNED, WITH RESPECT TO CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, THE CONGRESS, BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, LIMITED OUR JURISDICTION TO THE CONSIDERATION OF ONLY THOSE CLAIMS WHICH ARE RECEIVED IN THIS OFFICE 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. AS YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE APRIL 25, 1961, YOU WERE ADVISED BY OFFICE LETTERS DATED MAY 8, 1961, AND MARCH 22, 1962, THAT IT WAS BARRED BY THE PROVISIONS OF THE 1940 ACT. CONSIDERATION OF ANY CLAIM FOR ANY UNUSED LEAVE YOU MAY HAVE HAD TO YOUR CREDIT AT THE TIME OF YOUR DISCHARGE ON FEBRUARY 4, 1947, IS ALSO BARRED BY THE 1940 ACT.

THE PRIMARY PURPOSE OF THE ACT OF OCTOBER 9, 1940, WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING AND GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. SEE 25 COMP. GEN. 670; 32 COMP. GEN. 107 AND 267. THE LIMITATION PRESCRIBED BY THE STATUTE 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 COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. ACCORDINGLY, NO MATTER HOW MERITORIOUS A CLAIM MAY BE, NO EXCEPTION 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. WE REGRET THAT A FAVORABLE REPLY CANNOT BE MADE IN YOUR CASE, BUT HOPE THAT YOU WILL UNDERSTAND THAT FURTHER CONSIDERATION OF YOUR CLAIM IS PROHIBITED BY LAW.

NO BARRING ACT EXISTS AS TO CLAIMS GENERALLY BY THE UNITED STATES AGAINST ITS DEBTORS. YOU WERE ADVISED BY LETTER DATED APRIL 2, 1952, THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $140 REPRESENTING CLASS E ALLOTMENT PAYMENTS MADE TO MARGARET JONES DURING THE PERIOD APRIL 1 THROUGH OCTOBER 31, 1945, AT $20 PER MONTH SUBSEQUENT TO THE DISCONTINUANCE DATE REQUESTED BY YOU FOR WHICH NO DEDUCTIONS WERE MADE FROM YOUR PAY, AND WHICH PAYMENTS SHE SAYS SHE GAVE TO YOU. ADDITIONAL REQUESTS FOR PAYMENT OF YOUR INDEBTEDNESS WERE MADE BY LETTERS DATED SEPTEMBER 26, 1952, AND MAY 13, 1953, TO WHICH YOU MADE NO RESPONSE AND, ACCORDINGLY, YOUR INDEBTEDNESS REMAINS OUTSTANDING AND DUE.

IT IS THE WELL ESTABLISHED RULE OF THE COURTS OF THE UNITED STATES THAT MONEY PAID UPON AN ERRONEOUS DETERMINATION BY OFFICERS OR AGENTS OF THE GOVERNMENT WHETHER WITH OR WITHOUT JURISDICTION OF THE PARTICULAR SUBJECT MATTER MAY BE RECOVERED BACK FROM THE RECIPIENT.

ACCORDINGLY, YOU ARE OBLIGATED TO MAKE REFUND OF THE AMOUNT OF $140 YOU HAVE RECEIVED AND TO WHICH YOU ARE NOT ENTITLED. IF YOU ARE UNABLE TO MAKE REFUND IN ONE PAYMENT, IT WILL BE AGREEABLE TO US FOR YOU TO ARRANGE TO LIQUIDATE YOUR INDEBTEDNESS BY REGULAR MONTHLY REMITTANCES COMMENSURATE WITH YOUR ABILITY TO PAY. WE WILL MAKE EVERY EFFORT TO COOPERATE IN ANY PLAN YOU WISH TO SUBMIT.

PAYMENTS SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE FOLLOWING ADDRESS:

U.S. GENERAL ACCOUNTING OFFICE

POST OFFICE BOX 2610

WASHINGTON 13, D.C.

REFERENCE TO FILE NO. Z773520 SHOULD BE SHOWN ON ALL PAYMENTS AND CORRESPONDENCE IN CONNECTION WITH YOUR INDEBTEDNESS.