B-158215, FEB. 4, 1966

B-158215, FEB. 4, 1966

TO THE REVEREND LOVELL L. BOWLES:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1965, ADDRESSED TO THE COMMANDING GENERAL, THE ADJUTANT GENERAL'S OFFICE, WASHINGTON, D.C., CONCERNING YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF YOUR DEPENDENTS' TRAVEL FROM BOSTON, MASSACHUSETTS, TO ADA, OKLAHOMA, DURING THE PERIOD SEPTEMBER 22 TO 26, 1943, WHICH YOU BELIEVE TO BE DUE YOU INCIDENT TO YOUR MILITARY SERVICE DURING WORLD WAR II.

THE RECORD SHOWS THAT ON JULY 12, 1965, OUR CLAIMS DIVISION RECEIVED FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOUR LETTER OF MAY 18, 1965, TOGETHER WITH PAPERS AND DOCUMENTS IN SUPPORT OF YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL FROM BOSTON, MASSACHUSETTS, TO ADA, OKLAHOMA, DURING THE PERIOD SEPTEMBER 22 TO 26, 1943. SINCE THERE WAS NOTHING IN THE FILES OF THIS OFFICE REFLECTING THE RECEIPT OF A PRIOR CLAIM FROM YOU, AND INASMUCH AS A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED SINCE THE DATE OF THE ACCRUAL OF YOUR CLAIM, THAT IS SEPTEMBER 26, 1943, THE CLAIMS DIVISION BY A LETTER DATED JULY 23, 1965, RETURNED THE CLAIM AND SUPPORTING PAPERS TO YOU ALONG WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 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:

"THAT 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 * * *.

"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.'

BY LETTER OF JULY 29, 1965, YOU AGAIN FORWARDED THE PAPERS IN SUPPORT OF YOUR CLAIM TO THE ADJUTANT GENERAL'S OFFICE FOR CONSIDERATION AND YOU CONTENDED THAT DESPITE THE ACT OF OCTOBER 9, 1940, AND OFFICE LETTER OF JULY 23, 1965, THE CLAIM WAS TIMELY FILED SINCE IT "WAS MADE IN AUGUST 1944.' THE FINANCE CENTER, U.S. ARMY, WHEN REFERRING THAT LETTER TO OUR CLAIMS DIVISION ON AUGUST 25, 1965, FOR REPLY, ADVISED THAT THE RECORDS PERTAINING TO YOUR CLAIM WERE DESTROYED IN ACCORDANCE WITH EXISTING DIRECTIVES. OUR CLAIMS DIVISION INFORMED YOU BY LETTER OF SEPTEMBER 9, 1965, AMONG OTHER THINGS, THAT WHILE IT MAY BE THAT YOU PREVIOUSLY FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY IN 1944, SUCH ACTION COULD NOT BE CONSIDERED AS A SUFFICIENT COMPLIANCE WITH THE ABOVE CITED ACT WHICH REQUIRES THAT CLAIMS MUST BE TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE. IN YOUR LETTER OF DECEMBER 9, 1965, YOU STILL MAINTAIN THAT YOUR CLAIM IS VALID BECAUSE YOU APPLIED FOR THE TRAVEL ALLOWANCE IN 1943 (1944). ALSO, YOU STATE THAT THE CLAIM WAS DENIED WITHOUT SUFFICIENT REASON.

THE SOLE PROVISION OF LAW WHICH IS APPLICABLE IN THE CONSIDERATION OF YOUR CLAIM AND WHICH GOVERNS THE ACTION TO BE TAKEN BY THIS OFFICE THEREON IS THE ACT OF OCTOBER 9, 1940. THAT ACT UNEQUIVOCALLY 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 IT ACCRUED. HENCE, THE FACT THAT YOU MAY HAVE FILED A CLAIM WITH THE DEPARTMENT OF THE ARMY IN 1944 WOULD NOT SERVE TO EXCEPT SUCH CLAIM FROM THE OPERATION OF THE ACT. CONSIDERATION OF YOUR CLAIM ON ITS MERITS WOULD BE AUTHORIZED ONLY IF YOUR CLAIM HAD BEEN FILED IN THIS OFFICE PRIOR TO SEPTEMBER 26, 1953, THAT IS, WITHIN 10 YEARS AFTER THE DATE ON WHICH THE TRAVEL OF YOUR DEPENDENTS WAS COMPLETED. SINCE THE RECORD SHOWS THAT YOUR CLAIM WAS NOT RECEIVED HERE UNTIL JULY 12, 1965, THIS OFFICE IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940, FROM CONSIDERING THAT CLAIM. FURTHERMORE, NO MATTER HOW MERITORIOUS A CLAIM MAY BE, NEITHER THIS OFFICE NOR ANY PUBLIC OFFICIAL MAY MAKE EXCEPTIONS TO THE ACT, NOR DOES IT CONFER JURISDICTION UPON THIS OFFICE TO WAIVE ITS PROVISIONS IN ANY PARTICULAR CASE BECAUSE OF THE CIRCUMSTANCES SURROUNDING THE DELAY IN THE FILING OF THE CLAIM. ACCORDINGLY, THERE IS NO FURTHER ACTION THAT WE MAY TAKE ON YOUR CLAIM OTHER THAN TO ADVISE YOU THAT IT IS BARRED BY LAW.

WE MAY POINT OUT, HOWEVER, THAT EVEN IF YOUR CLAIM WAS TIMELY FILED AND THUS NOT BARRED FROM CONSIDERATION ON ITS MERITS, IT IS DOUBTFUL WHETHER FAVORABLE ACTION COULD BE TAKEN THEREON. IT APPEARS FROM THE PAPERS SUBMITTED BY YOU THAT ON SEPTEMBER 18, 1944, THE FINANCE OFFICE, UNITED STATES ARMY, WASHINGTON, D.C., REQUESTED YOU TO FURNISH A STATEMENT FROM YOUR COMMANDING OFFICER CONFIRMING THE DATE OF ORAL NOTIFICATION (TELEPHONE CALL BY BRIGADE ADJUTANT SUGGESTING RETURN HOME OF YOUR FAMILY) AS STATED IN YOUR LETTER OF AUGUST 21, 1944, INITIALLY PRESENTING CLAIM, AND THEN RESUBMIT YOUR CLAIM VOUCHER FOR FURTHER ACTION. THAT REQUEST APPEARS TO CONSTITUTE THE LAST ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN CONNECTION WITH YOUR CLAIM AND YOU STATE IN LETTER OF MAY 18, 1965, THAT, FOR REASONS GIVEN,"IT WAS IMPOSSIBLE TO FURNISH THIS INFORMATION AT THE TIME AND STILL IS.' SUCH EVIDENCE WOULD BE NECESSARY FOR FAVORABLE CONSIDERATION OF YOUR CLAIM IN ANY EVENT.

REGARDING YOUR STATEMENT THAT YOU INTEND "TO TAKE THIS MATTER HIGHER," IT MAY BE STATED THAT THE DECISIONS OF THE COMPTROLLER GENERAL ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 71, 74. THE UNITED STATES COURT OF CLAIMS HAS JURISDICTION TO CONSIDER CLAIMS AGAINST THE GOVERNMENT BUT ONLY IF ACTION IS FILED IN THAT COURT WITHIN 6 YEARS FOLLOWING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.

IN ACCORDANCE WITH YOUR REQUEST, THE PAPERS AND DOCUMENTS IN SUPPORT OF YOUR ORIGINAL CLAIM FILED WITH THE DEPARTMENT OF THE ARMY ARE RETURNED.