B-158308, MAR. 8, 1966

B-158308, MAR. 8, 1966

TO MR. AND MRS. FRANK SPANN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 26, 1965, ADDRESSED TO THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, AND FORWARDED HERE AS A MATTER PERTAINING TO OUR OFFICE, CONCERNING YOUR CLAIM FOR THE 6-MONTHS' DEATH GRATUITY BELIEVED TO BE DUE IN THE CASE OF YOUR SON, THE LATE JOSEPH F. SPANN, WHO DIES NOVEMBER 30, 1950, WHILE SERVING IN THE UNITED STATES ARMY.

AT THE TIME OF YOUR SON'S DEATH YOU WERE RESIDING IN ROMANIA, AND "IRON CURTAIN COUNTRY" AND SINCE PAYMENT OF THE GRATUITY TO YOU AT THAT TIME WAS NOT POSSIBLE, THE ARMY FINANCE CENTER ADVISED YOU THAT SETTLEMENT WOULD BE SUSPENDED UNTIL YOU BECAME ACCESSIBLE FOR PAYMENT. BY LETTER DATED APRIL 26, 1965, YOU ADVISED THE ARMY FINANCE CENTER THAT YOU HAD ARRIVED IN THE UNITED STATES AND REQUESTED PAYMENT OF THE GRATUITY. THE ARMY FINANCE CENTER FORWARDED YOU CLAIM TO THIS OFFICE FOR DIRECT SETTLEMENT AND IN A LETTER DATED JUNE 30, 1965, OUR CLAIMS DIVISION ADVISED YOU THAT SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED BETWEEN NOVEMBER 30, 1950, THE DATE OF YOUR SON'S DEATH, AND JUNE 14, 1965, THE DATE YOUR CLAIM WAS RECEIVED IN THIS OFFICE, WE WERE PRECLUDED BY THE EXPRESS TERMS OF THE BARRING ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, FROM GIVING FURTHER CONSIDERATION TO YOUR CLAIM.

IN A LETTER DATED AUGUST 10, 1965, IN REPLY TO YOUR REQUEST FOR RECONSIDERATION OF THE MATTER, OUR CLAIMS DIVISION EXPLAINED THAT THE 1940 ACT BARRED CONSIDERATION OF ANY CLAIM THAT WAS NOT TIMELY FILED AND THAT OUR OFFICE HAD NO AUTHORITY UNDER THE STATUTE TO WAIVE OR MAKE EXCEPTIONS TO ANY OF ITS PROVISIONS.

IN YOUR PRESENT LETTER TO THE ARMY FINANCE CENTER YOU SAY THAT SINCE MUCH OF THE PRIOR CORRESPONDENCE HAD ITS ORIGIN WITH THEIR OFFICE, YOU PERHAPS HAD ERRED IN CORRESPONDING WITH THE GENERAL ACCOUNTING OFFICE CONCERNING THE CLAIM AND YOU BELIEVE THEIR OFFICE MAY ALLOW YOUR CLAIM ON THE BASIS THAT THEY RECOGNIZED YOUR ENTITLEMENT TO THE GRATUITY IN LETTER DATED MARCH 28, 1955, TO YOUR SON, MR. HANS SPANN, 13856 SYMORE AVENUE, DETROIT 5, MICHIGAN, A COPY OF WHICH YOU ENCLOSED WITH YOUR LETTER.

THE BASIC AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO SETTLE CLAIMS AGAINST THE UNITED STATES IS CONTAINED IN SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 31 U.S.C. 71, WHICH PROVIDES:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF TE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.'

UNDER THAT ACT THIS OFFICE HAS JURISDICTION TO TAKE APPROPRIATE ACTION ON YOUR CLAIM WHICH IS FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. 20 COMP. GEN. 573. THEREFORE, WHILE THE ARMY FINANCE CENTER HAS AUTHORITY TO MAKE PAYMENT OF 6-MONTHS' DEATH GRATUITY CLAIMS IF OTHERWISE PROPER, AFTER IT FORWARDS A CLAIM TO THIS OFFICE FOR SETTLEMENT, IT NO LONGER HAS JURISDICTION IN THE MATTER AND CAN TAKE NO FURTHER ACTION ON THE CLAIM.

THE RIGHT TO RECEIVE THE 6-MONTHS' DEATH GRATUITY ACCRUES ON THE DATE OF DEATH OF THE SERVICE MEMBER, AND EVEN IF YOU HAD FILED A CLAIM WITH OTHER AGENCIES OF THE GOVERNMENT PRIOR TO THE EXPIRATION OF THE 10-YEAR PERIOD OF LIMITATION PRESCRIBED IN THE 1940 ACT, SUCH ACTION WOULD NOT BE IN COMPLIANCE WITH THE STATUTE WHICH REQUIRES THAT CLAIMS MUST BE FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS AFTER DATE OF ACCRUAL IN ORDER TO BE GIVEN CONSIDERATION. SEE 32 COMP. GEN. 267. HOWEVER, WITH RESPECT TO THE ARMY FINANCE CENTER LETTER OF MARCH 28, 1955, TO YOUR SON, THE PURPOSE OF THE LETTER WAS TO PUT HIM ON NOTICE THAT YOU WERE THE ELIGIBLE BENEFICIARIES TO RECEIVE THE GRATUITY. IT DID NOT AND COULD NOT MAKE A BINDING COMMITMENT THAT EVENTUALLY YOU WOULD BE PAID THE GRATUITY UNDER ALL CIRCUMSTANCES AND WITHOUT REGARD TO APPLICABLE LAWS INCLUDING THE 10-YEAR STATUTE OF LIMITATIONS.

YOU FIRST PRESENTED YOUR CLAIM TO THE ARMY FINANCE CENTER IN YOUR LETTER OF APRIL 26, 1965, WHICH THEY PROMPTLY FORWARDED TO THIS OFFICE IN ACCORDANCE WITH SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 31 U.S.C. 71. SINCE SUCH CLAIM WAS NOT RECEIVED HERE UNTIL JUNE 14, 1965, MORE THAN 10 YEARS AFTER THE DATE THE CLAIM ACCRUED, NOVEMBER 30, 1950, OUR CONSIDERATION OF THE CLAIM IS BARRED BY THE ACT OF OCTOBER 9, 1940.

THE LIMITATION PRESCRIBED BY THAT ACT UPON CONSIDERATION OF CLAIMS BY THIS OFFICE IS NOT A MERE STATUTE OF LIMITATION, BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THIS OFFICE. SINCE THE 1940 ACT DOES NOT CONFER JURISDICTION UPON THIS OFFICE TO WAIVE ITS PROVISIONS IN ANY PARTICULAR CASE, WE ARE WITHOUT AUTHORITY TO MAKE ANY DISPOSITION OF YOUR CLAIM OTHER THAN TO ADVISE YOU THAT NO FURTHER ACTION MAY BE TAKEN THEREON BY THE ARMY OR THIS OFFICE.

IN ANSWER TO YOUR QUESTION AS TO WHAT FURTHER ACTION YOU MAY TAKE IN THE MATTER, IN ADDITION TO THE CLAIMS JURISDICTION OF THIS OFFICE THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES, BUT ONLY IF FILED THERE WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. 28 U.S.C. 2501. SINCE YOUR CLAIM FIRST ACCRUED ON NOVEMBER 30, 1950, IT WOULD APPEAR THAT YOU DO NOT MEET THE CLAIM FILING REQUIREMENT ESTABLISHED BY STATUTE FOR THE COURT.

WE REGRET THAT A MORE FAVORABLE REPLY CANNOT BE MADE AND TRUST THAT THIS LETTER WILL ENABLE YOU TO BETTER UNDERSTAND THE REASONS WHY WE ARE WITHOUT LEGAL AUTHORITY TO CONSIDER YOUR CLAIM.