B-151319, MAY 31, 1963

B-151319, MAY 31, 1963

TO MR. DAVID J. BLOCH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1963, CONCERNING YOUR CLAIM FOR AN AMOUNT BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY DURING TWO PERIODS OF ENLISTMENT WHICH ENDED JULY 3, 1921, AND MAY 26, 1926.

OUR CLAIMS DIVISION ADVISED YOU IN LETTERS OF MARCH 12, 1963, AND APRIL 3, 1963, THAT OUR RECORDS SHOW A PRIOR CLAIM IN YOUR CASE, THE EXACT NATURE OF WHICH IS NOT KNOWN, WAS SUBMITTED TO OUR OFFICE BUT THAT DURING THE LONG PERIOD OF TIME BETWEEN THE RECEIPT OF THE CLAIM AND RECEIPT OF THE CURRENT CORRESPONDENCE FROM YOU, RECORDS NECESSARY EITHER TO JUSTIFY OR REFUTE THE CLAIM HAVE BEEN DESTROYED PURSUANT TO LAW. YOU URGE THAT THIS ACTION AFFORDS NO BASIS FOR REFUSING TO CONSIDER YOUR PRESENT CLAIM.

AMONG THE LETTERS RECEIVED FROM YOU IS LETTER OF OCTOBER 26, 1962, WHEREIN YOU REFER TO CORRESPONDENCE WITH OUR CLAIMS DIVISION IN JANUARY 1941 CONCERNING YOUR CLAIM FOR ADDITIONAL MILITARY PAY. WHILE, AS STATED ABOVE, THE RECORD SHOWS A PRIOR CLAIM BY YOU WAS FILED IN OUR OFFICE, YOUR CLAIM WAS DESTROYED IN ACCORDANCE WITH THE EXPRESS AUTHORITY GRANTED BY THE CONGRESS (CHAPTER 10 OF TITLE 44 OF THE UNITED STATES CODE) AND THAT WE NOW HAVE NO WAY OF DETERMINING THE ITEM OR ITEMS CLAIMED. GENERALLY, IT IS THE PRACTICE TO DISPOSE OF ALL FILES OF SETTLED CLAIMS AGAINST THE UNITED STATES IN WHICH THERE HAS BEEN NO ACTIVITY FOR A PERIOD OF 12 YEARS. IT MUST BE ASSUMED IN SUCH CASES THAT PRIOR TO ITS DESTRUCTION, THE CLAIM WAS ADJUDICATED AND ANY AMOUNT FOUND DUE ON THE CLAIM WAS ALLOWED OR, IF NO AMOUNT WAS DUE, THE CLAIM WAS DISALLOWED AS LACKING IN MERIT. MOREOVER, THE ACCOUNTING OFFICERS OF THE GOVERNMENT, IN THE ABSENCE OF CLEAR AND SATISFACTORY EVIDENCE OF NONPAYMENT OF A CLAIM, HAVE CONSISTENTLY REFUSED TO ALLOW A CLAIM WHERE THE CLAIMANT HAS SLEPT ON HIS RIGHTS FOR LONG PERIODS OF YEARS. SEE 4 COMP. DEC. 276; 5 COMP. DEC. 282; AND 4 COMP. GEN. 805. NOTWITHSTANDING THE FACT THAT YOU PRESENTED CLAIMS INCIDENT TO YOUR CIVILIAN GOVERNMENT EMPLOYMENT DURING THE PERIOD SUBSEQUENT TO 1945, YOU MADE NO MENTION IN ANY OF THE CLAIMS OF A CLAIM FOR MILITARY PAY AND ALLOWANCES.

UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS MODIFIED BY THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 54 STAT. 1181, 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 THE ACT WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. SEE 32 COMP. GEN. 107. WHERE, AS IN YOUR CASE, NO INQUIRY HAS BEEN RECEIVED CONCERNING A PENDING CLAIM FOR OVER 21 YEARS AND THE RECORDS HAVE BEEN DESTROYED, THE PRESUMPTION ARISES, AS INDICATED ABOVE, THAT THE CLAIM WAS PAID IN DUE COURSE IF IT WAS A PROPER CLAIM AGAINST THE GOVERNMENT AND THAT YOUR PRESENT CLAIM IS A NEW CLAIM. 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 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 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.

SINCE, SO FAR AS DISCLOSED BY THE RECORDS AVAILABLE TO US, YOUR PRESENT CLAIM WAS NOT RECEIVED IN OUR OFFICE PRIOR TO OCTOBER 29, 1962, CONSIDERATION THEREOF IS PRECLUDED BY THE ACT OF OCTOBER 29, 1940.

ACCORDINGLY, THE ACTION OF THE CLAIMS DIVISION IN THE LETTERS OF MARCH 12, 1963, AND APRIL 3, 1963, IN EFFECT DENYING YOUR CLAIM, IS SUSTAINED.