B-150255, DEC. 17, 1962

B-150255, DEC. 17, 1962

TO MRS. BERNADINA R. VDA. DE ZARUDNY:

YOUR LETTER OF OCTOBER 26, 1962, REQUESTS REEXAMINATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON YOUR CLAIM FOR RETIREMENT BENEFITS, INSURANCE, SALARY DEDUCTIONS AND OTHER MONEY OR MONEYS DUE YOU AS THE WIDOW OF PETER ZARUDNY, R 741409, U.S. ARMY, AT DATE OF HIS DEATH, MARCH 25, 1941.

THE CLAIMS DIVISION INFORMED YOU IN THE LETTER OF JULY 23, 1962, THAT SINCE YOUR HUSBAND DIED WHILE IN THE SERVICE NO RETIREMENT BENEFITS ARE DUE, AND THAT ANY INQUIRY WITH REGARD TO PAYMENT OF INSURANCE SHOULD BE ADDRESSED TO THE VETERANS ADMINISTRATION, WASHINGTON 25, D.C., AS THAT OFFICE HAS JURISDICTION IN SUCH MATTER.

ALSO YOU WERE ADVISED IN THE LETTER DATED JULY 23, 1962, THAT ANY CLAIM FOR AN ITEM OF PAY DUE YOUR DECEASED HUSBAND NOT PREVIOUSLY CLAIMED IS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181. SINCE YOUR HUSBAND DIED ON MARCH 25, 1941, AND YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL JUNE 25, 1962, YOU WERE ADVISED THAT OUR OFFICE WAS PRECLUDED BY THE LAW FROM CONSIDERING YOUR CLAIM AND WE COULD TAKE NO FURTHER ACTION. YOU WERE FURTHER ADVISED THAT THE RECORDS SHOW A PRIOR CLAIM WAS SUBMITTED TO OUR OFFICE BUT THAT THE FILE HAS BEEN DESTROYED, IN ACCORDANCE WITH THE LAW AUTHORIZING THE DESTRUCTION OF OLD RECORDS, AND WE HAVE NO WAY OF DETERMINING THE ITEM OR ITEMS CLAIMED. LETTER OF SEPTEMBER 19, 1962, THE CLAIMS DIVISION ADVISED YOU IN SUBSTANCE THAT WHERE, AS HERE, A LONG PERIOD OF TIME HAS ELAPSED BETWEEN THE FILING OF AN ORIGINAL CLAIM AND THE RECEIPT OF A SUBSEQUENT INQUIRY POSSIBLY PERTAINING TO THE SAME MATTER, DURING WHICH PERIOD THE RECORDS NECESSARY TO EITHER JUSTIFY OR REFUTE THE CLAIM HAVE BEEN DESTROYED PURSUANT TO LAW, THE PRESUMPTION ARISES THAT THE CLAIM NEVER WAS VALID OR, IF VALID, THAT IT ALREADY HAS BEEN SETTLED IN ACCORDANCE WITH APPLICABLE PROVISIONS OF LAW.

UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 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 IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER IT FIRST ACCRUED. THE PRIMARY PURPOSE OF THAT ACT IS TO RELIEVE THE GOVERNMENT OF THE NECESSITY OF RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. 32 COMP. GEN. 107. THE LIMITATION PRESCRIBED BY THE 1940 ACT UPON THE 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. COMPARE BARTLESVILLE ZINC CO. V. MELLON, 56 F.2D 154 AND CARPENTER V. UNITED STATES, 56 F.2D 828. 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. MOREOVER, WHEN A LONG PERIOD OF TIME ELAPSES DURING WHICH AN INQUIRY HAS NOT BEEN RECEIVED CONCERNING A CLAIM WHICH APPEARS TO HAVE BEEN RECEIVED AND THE RECORDS HAVE BEEN DESTROYED, THE PRESUMPTION ARISES THAT THE CLAIM WAS PAID IN DUE COURSE IF IT WAS A PROPER CLAIM AGAINST THE GOVERNMENT.

SINCE, SO FAR AS DISCLOSED BY THE RECORDS AVAILABLE TO US, YOUR PRESENT CLAIM WAS NOT RECEIVED IN OUR OFFICE PRIOR TO JUNE 25, 1962, AND YOUR HUSBAND DIED MARCH 25, 1941, OVER 21 YEARS AGO, CONSIDERATION THEREOF IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940. ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION WAS PROPER AND IS SUSTAINED.