B-150841, MAR. 29, 1963

B-150841, MAR. 29, 1963

TO MR. MARCELINO R. ALBANIEL:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1963, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ARREARS OF PAY BELIEVED TO BE DUE YOU UPON DISCHARGE FROM THE UNITED STATES ARMY ON DECEMBER 11, 1945.

OUR RECORDS SHOW THAT YOUR FIRST LETTER TO THE UNITED STATES ARMY CLAIMING ARREARS OF PAY WAS FORWARDED TO THIS OFFICE (GENERAL ACCOUNTING OFFICE) AND RECEIVED ON JANUARY 26, 1959. SINCE THERE WAS NOTHING IN OUR FILES REFLECTING THE RECEIPT OF A PRIOR CLAIM AND INASMUCH AS A PERIOD OF MORE THAN 10 FULL YEARS HAD ELAPSED SINCE THE ACCRUAL OF YOUR CLAIM--- YOU HAVING BEEN DISCHARGED FROM THE ARMY ON DECEMBER 11, 1945--- OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU ON FEBRUARY 3, 1959, ALONG WITH A COPY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, AND ADVISED YOU THAT UNDER THAT ACT YOUR CLAIM WAS BARRED. THE ACT OF OCTOBER 9, 1940, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.

"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 A LETTER OF MARCH 31, 1959, YOU REQUESTED RECONSIDERATION OF YOUR CLAIM FOR TWO REASONS (1) THAT YOU HAD FILED A CLAIM WITH THE UNITED STATES ARMY FOR THE ARREARS OF PAY PRIOR TO JANUARY 10, 1954, AND (2) THAT THE 1940 LAW WAS NOT APPLICABLE IN YOUR CASE SINCE IT IS A LAW OF THE UNITED STATES AND, THEREFORE, DID NOT CONSTITUTE NOTICE TO YOU AS A RESIDENT OF THE PHILIPPINES. BY LETTER OF APRIL 30, 1959, YOU WERE ADVISED THAT THE FILING OF A CLAIM WITH THE DEPARTMENT OF THE ARMY DID NOT CONSTITUTE COMPLIANCE WITH THE ACT OF OCTOBER 9, 1940, AND THAT YOU WERE CHARGED WITH KNOWLEDGE OF THAT AND OTHER PUBLIC LAWS OF THE UNITED STATES.

YOU NOW REQUEST THIS OFFICE TO TREAT YOUR CLAIM AS AN EXCEPTION TO THE PROVISIONS OF THE 1940 LAW INASMUCH AS YOU HAD CONSIDERED THE FILING OF A CLAIM WITH THE DEPARTMENT OF THE ARMY AS SUFFICIENT COMPLIANCE WITH THE LAW AFTER HAVING REFERRED THE MATTER TO DIFFERENT OFFICES AND MET WITH DIFFERENT OPINIONS AS TO WHERE THE CLAIM SHOULD BE FILED. WHILE YOUR ACTIONS IN THIS MATTER ARE UNDERSTANDABLE, WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU THAT THE 1940 LAW PERMITS OF NO EXCEPTIONS AND CONFERS NO JURISDICTION IN THIS OFFICE TO WAIVE ITS PROVISIONS IN ANY PARTICULAR CASE, REGARDLESS OF THE CIRCUMSTANCES INVOLVED. THE LAW IS CLEAR AND UNAMBIGUOUS. IT PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM IS FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS AFTER THE DATE IS ACCRUED. UNDER THAT LAW IT IS IMMATERIAL THAT YOU FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY WITHIN THE PRESCRIBED 10-YEAR LIMITATION PERIOD. SINCE IT IS CLEAR THAT YOUR CLAIM WAS NOT RECEIVED HERE UNTIL JANUARY 26, 1959, THIS OFFICE IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940, FROM CONSIDERING YOUR CLAIM AND NO FURTHER ACTION WILL BE TAKEN THEREON.