B-152609, NOV. 6, 1963

B-152609, NOV. 6, 1963

TO MR. HERMAN FELDMAN:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 24, 1963, WRITTEN IN YOUR BEHALF BY RICHARD S. KAPLAN, ATTORNEY AT LAW, REQUESTING REVIEW OF OFFICE ACTION TAKEN IN DENYING YOUR CLAIM FOR THE PROCEEDS OF UNDELIVERED FAMILY ALLOWANCE CHECKS ON THE BASIS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. YOUR ATTORNEY CONCEDES THAT YOU CAN CLAIM ONLY THE AMOUNT OF YOUR PERSONAL CONTRIBUTION TO THE ALLOWANCE ($22 PER MONTH), A RIGHT TO WHICH, HE STATES, ACCRUED UPON THE DEATH OF YOUR DEPENDENTS IN 1949. HE STATES FURTHER THAT YOU FILED YOUR CLAIM WITH THE DEPARTMENT OF THE ARMY IN 1949 AND IF THAT DEPARTMENT DID NOT FILE THE CLAIM WITH THIS OFFICE "A CITIZEN IS NOT DEPRIVED OF HIS RIGHTS BECAUSE OF THE NEGLIGENCE OR ERROR ON THE PART OF A GOVERNMENT AGENCY.'

THE RECORD SHOWS THAT YOU REQUESTED THAT A MONTHLY FAMILY ALLOWANCE BE PAID TO MRS. JOLAN FELDMAN, YOUR WIFE, IN GORONDA, DISTRICT OF MUKACEVA, COUNTY OF BIRECKA, CZECHOSLOVAKIA, IN ACCORDANCE WITH APPLICABLE PROVISIONS OF LAW, WHICH FAMILY ALLOWANCE WAS EFFECTIVE FROM JUNE 1, 1942, THROUGH SEPTEMBER 30, 1945.

DUE TO WAR CONDITIONS THE REGULATIONS OF THE UNITED STATES GOVERNMENT DID NOT PERMIT PAYMENTS TO BE MADE TO ANYONE RESIDING IN CZECHOSLOVAKIA AT THAT TIME AND, CONSEQUENTLY, THESE PAYMENTS WERE NOT MADE TO HER PRIOR TO HER DEATH. UNDER APPLICABLE PROCEDURES A CHECK DATED MARCH 2, 1945, REPRESENTING PAYMENT FOR THE PERIOD DECEMBER 1944, JANUARY 1945 AND FEBRUARY 1945 WAS MAILED TO THE BUREAU OF ACCOUNTS, UNITED STATES TREASURY DEPARTMENT, FOR SAFE KEEPING. BEGINNING APRIL 1945 AND CONTINUING THROUGH SEPTEMBER 1945, CHECKS COVERING THE PERIODS JUNE 1942 THROUGH NOVEMBER 1944, AND MARCH 1945 THROUGH SEPTEMBER 1945, WERE ISSUED TO JOLAN FELDMAN AND MAILED TO THE ABOVE ADDRESS IN CZECHOSLOVAKIA. IT APPEARS THAT SUCH CHECKS WERE NOT RETURNED.

THE RECORD SHOWS FURTHER THAT THE PAYEE OF THE CHECKS, MRS. JOLAN FELDMAN, AND CHILDREN, EUGENE AND EVA, DIED IN MAY 1944. UNDER THE LAW IT WAS THE DEPENDENT OR DEPENDENTS OF THE ENLISTED MAN, AND NOT THE ENLISTED MAN HIMSELF, WHO WERE ENTITLED TO THE FAMILY ALLOWANCE PAYMENTS. SINCE THE PAYEE DIED BEFORE ANY OF THE CHECKS IN QUESTION WERE ISSUED, THERE WAS NO LEGAL BASIS FOR ISSUING THE CHEKS. IN SUCH CIRCUMSTANCES, YOU BECOME ENTITLED TO A REFUND OF THE AMOUNT OF $22 PER MONTH WITHHELD FROM YOUR PAY IN CONNECTION WITH THE FAMILY ALLOWANCE, BOTH BEFORE AND AFTER THE DEATH OF YOUR WIFE AND PAYMENT OF THE AMOUNT INVOLVED WOULD HAVE BEEN MADE TO YOU IF YOU HAD FILED A TIMELY CLAIM THEREFOR WITH THIS OFFICE.

DEPARTMENT OF THE ARMY LETTER OF DECEMBER 6, 1949, TO YOU, REFERRED TO "YOUR RECENT INQUIRY REGARDING PAYMENTS OF FAMILY ALLOWANCE BASED ON YOUR FORMER MILITARY SERVICE.' YOU WERE ADVISED THAT CHECKS COVERING ALL BUT $300 OF THE AMOUNT INVOLVED HAD BEEN MAILED TO YOUR WIFE IN CZECHOSLOVAKIA DURING THE YEAR 1945, AND THAT IF ALL CHECKS HAD NOT BEEN RECEIVED ADVICE TO THAT EFFECT SHOULD BE FURNISHED OVER HER SIGNATURE, AT WHICH TIME "FURTHER ACTION WILL BE TAKEN.' IT WAS REQUESTED THAT YOU FURNISH HER THEN CURRENT ADDRESS. PRESUMABLY, YOU DID NOT KNOW OF HER DEATH AT THAT TIME, SINCE OUR FILES CONTAIN NO INFORMATION CONCERNING FURTHER CORRESPONDENCE WITH RESPECT TO THIS MATTER UNTIL 1962. IF YOU HAD ADVISED THE DEPARTMENT OF THE ARMY PROMPTLY UPON THE RECEIPT OF INFORMATION CONCERNING YOUR WIFE'S DEATH, IT APPEARS PROBABLE THAT THE MATTER WOULD HAVE BEEN BROUGHT TO OUR ATTENTION IN THE NORMAL COURSE OF EVENTS.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, PROVIDES THAT EVERY CLAIM OR DEMAND (WITH EXCEPTIONS NOT MATERIAL HERE) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' THAT ACT HAS BEEN HELD TO BE MORE THAN A MERE STATUTE OF LIMITATIONS. IT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. NO PROVISION WAS MADE UNDER WHICH WE ARE AUTHORIZED TO MAKE EXCEPTIONS TO THE OPERATION OF THE ACT.

EVEN IF YOU HAD FILED A PROPER CLAIM WITH THE DEPARTMENT OF THE ARMY, THAT FACT COULD NOT BE CONSIDERED AS A COMPLIANCE WITH THE ACT OF OCTOBER 9, 1940, SINCE IT IS REQUIRED THAT CLAIMS MUST BE TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE. ANY ADMINISTRATIVE DELAY IN FORWARDING A CLAIM HERE FOR CONSIDERATION WILL NOT OPERATE TO TOLL THE STATUTE.

ACCORDINGLY, WE MUST ADHERE TO THE CONCLUSION THAT WE ARE WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM.