B-150224, DEC. 11, 1962

B-150224, DEC. 11, 1962

TO MR. LAWRENCE ELLIS MYERS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1962, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED SEPTEMBER 19, 1962, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES AS AN ENLISTED MAN, UNITED STATES ARMY, FOR THE PERIOD JULY 8, 1948, TO OCTOBER 22, 1948. ALSO YOUR LETTER DATED SEPTEMBER 21, 1962, ADDRESSED TO THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, HAS BEEN REFERRED TO US FOR REPLY.

IT APPEARS FROM THE INFORMATION MADE AVAILABLE TO THIS OFFICE THAT YOU ENLISTED IN THE UNITED STATES ARMY ON JULY 8, 1948, AND SERVED UNTIL DISCHARGED ON OCTOBER 22, 1948, UNDER THE PROVISIONS OF AR 615 366, FOR THE WILLFUL CONCEALMENT OF FACTS WHICH WOULD HAVE MADE YOU INELIGIBLE FOR ENLISTMENT. PARAGRAPH 6 OF AR 615-366, DATED MAY 14, 1947, IN EFFECT AT THE TIME YOU WERE DISCHARGED, PROVIDED THAT AN INDIVIDUAL DISCHARGED FOR FRAUDULENT ENLISTMENT IS NOT ENTITLED TO PAY AND ALLOWANCES OF ANY KIND. CONCERNING YOUR SUBSEQUENT ENLISTMENT IN THE AIR FORCE ON JULY 19, 1950, IT APPEARS THAT YOU AGAIN FRAUDULENTLY CONCEALED THE FACTS WITH REGARD TO YOUR PRIOR SERVICE INCLUDING YOUR DISCHARGE FROM THE ARMY ON OCTOBER 22, 1948, FOR FRAUDULENT ENLISTMENT. THE PAYMENT OF ANY ADDITIONAL PAY AND ALLOWANCES TO YOU, AS AN ENLISTED MEMBER OF THE AIR FORCE IS PRECLUDED FOR THE SAME REASON, SINCE YOUR UNDESIRABLE DISCHARGE THEREFROM ON ON NOVEMBER 27, 1950, RESULTED FROM YOUR CONCEALMENT OF YOUR PRIOR SERVICE. SEE PARAGRAPH 11, AFR 39-21, DATED MARCH 31, 1949.

YOUR ADDITIONAL CLAIMS COVERING EARLIER PERIODS WERE NOT CONSIDERED BY OUR CLAIMS DIVISION BECAUSE THEY WERE NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MORE THAN 10 FULL YEARS HAD ELAPSED AFTER THE CLOSE OF SUCH PERIODS. THAT ACTION WAS IN ACCORDANCE WITH THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH PROVIDES THAT "EVERY" CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE--- WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE--- "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

SUCH PROVISIONS OF LAW CONSTITUTE AN ABSOLUTE BAR TO OUR CONSIDERATION OF ANY CLAIM UNLESS SUCH CLAIM IS FILED IN OUR OFFICE WITHIN THE TEN-YEAR LIMITATION PERIOD. IF A CLAIM IS SUBMITTED TO ANOTHER GOVERNMENT AGENCY AND IS NOT PAID, THE PERSON CONCERNED MUST FILE A CLAIM WITH OUR OFFICE WITHIN THE TEN-YEAR PERIOD, FOR THE AMOUNT DUE, IN ORDER TO AVOID THE BAR OF THE STATUTE. THE FACT THAT HE IS UNAWARE THAT HE IS REQUIRED TO FILE CLAIM HERE IS IMMATERIAL SINCE THE STATUTE MAKES NO EXCEPTIONS IN SUCH CASES. IT IS WELL ESTABLISHED THAT THE STATUTORY PERIOD DOES NOT CEASE TO RUN DURING THE PERIOD A CLAIM IS BEING CONSIDERED BY ANOTHER AGENCY OF THE GOVERNMENT, OR AS A RESULT OF SUCH ADMINISTRATIVE CONSIDERATION. SEE 32 COMP. GEN. 267. COMPARE DECISIONS BY THE UNITED STATES COURT OF CLAIMS IN THE CASES OF TAN V. UNITED STATES, 102 F.SUPP. 552 (1952), AND ARRIBAS V. UNITED STATES, 110 F.SUPP. 267 (1953). IN THE CASE OF KAVANAGH V. NOBLE, 332 U.S. 535 (1947), THE SUPREME COURT OF THE UNITED STATES STATED THAT "SUCH PERIODS ARE ESTABLISHED TO CUT OFF RIGHTS, JUSTIFIABLE OR NOT, THAT MIGHT OTHERWISE BE ASSERTED, AND THEY MUST BE STRICTLY ADHERED TO * * *.'

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 19, 1962, MUST BE AND IS SUSTAINED. AS EXPLAINED ABOVE, WE ARE WITHOUT AUTHORITY TO CONSIDER ANY CLAIMS NOT FILED IN OUR OFFICE WITHIN THE TEN-YEAR LIMITATION PERIOD.