B-165266, NOV. 13, 1968

B-165266, NOV. 13, 1968

TO COLONEL WILLIAM E. CORLEY, JR.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26, 1968, REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS DIVISION DATED AUGUST 20, 1968, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE IN PAYMENT FOR TRAVEL PERFORMED IN JUNE 1938, FROM YOUR HOME IN SAN FRANCISCO, CALIFORNIA, TO WEST POINT, NEW YORK, INCIDENT TO YOUR APPOINTMENT TO THE UNITED STATES MILITARY ACADEMY.

IN A LETTER DATED MAY 24, 1968, CONCERNING YOUR CLAIM, YOU STATED YOU WERE DISCHARGED FROM THE U.S. ARMY AT SAN FRANCISCO, CALIFORNIA, ON JUNE 10, 1938, FOR THE CONVENIENCE OF THE GOVERNMENT TO ATTEND THE U.S. MILITARY ACADEMY. TRAVEL WAS PERFORMED AT YOUR OWN EXPENSE TO WEST POINT, NEW YORK, WHERE YOU REPORTED AT THE ACADEMY ON JULY 1, 1938. YOU STATED FURTHER THAT AN ARMY REGULATION AUTHORIZING MILEAGE TO CANDIDATES TRAVELING TO THE ACADEMY RECENTLY CAME TO YOUR ATTENTION. YOU CONTENDED THAT TO THE BEST OF YOUR KNOWLEDGE YOU WERE NOT PAID MILEAGE FOR THE TRAVEL PERFORMED INASMUCH AS AT THAT TIME YOU WERE UNDER THE IMPRESSION THAT NONE WAS DUE. YOU THEREFORE REQUESTED THAT A REVIEW OF YOUR FINANCIAL RECORDS BE MADE FOR THE PERIOD UNDER CONSIDERATION AND PAYMENT MADE, IF DUE.

BY TRANSMITTAL LETTER DATED JUNE 18, 1968, YOUR CLAIM WAS FORWARDED BY THE FINANCE CENTER, U.S. ARMY, TO OUR CLAIMS DIVISION FOR SETTLEMENT. THE LETTER ADVISED THAT INASMUCH AS YOUR CLAIM WAS RECEIVED MORE THAN TEN YEARS SINCE DATE OF ITS ACCRUAL AND ALL RECORDS HAVE BEEN DESTROYED, NO VERIFICATION COULD BE MADE AS TO ANY PREVIOUS PAYMENTS. PAYMENT OF THE CLAIM WAS NOT RECOMMENDED.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 20, 1968, FOR THE REASONS STATED. IN YOUR LETTER OF AUGUST 26, 1968, YOU STATE THAT YOU DID NOT PRESENT YOUR CLAIM SOONER BECAUSE YOU HAD NO KNOWLEDGE OF ENTITLEMENT UNTIL RECENTLY. ALSO, THAT YOU HAVE NOT BEEN FULLY ADVISED OF THE LAW IN EFFECT AT THAT TIME, AND OTHER PERTINENT DATA, SO THAT YOU ARE NOT SURE WHETHER YOU ARE ENTITLED TO PAYMENT.

YOU URGE THAT THE DESTRUCTION OF RECORDS ON THE PART OF AGENCIES OF THE GOVERNMENT SHOULD NOT BE A LEGAL BASIS FOR REFUSAL OF PAYMENT AND THAT AVAILABLE RECORDS AND EVIDENCE JUSTIFY THE CLAIM AND NO EVIDENCE EXISTS TO REFUTE IT. YOU REQUEST ADVICE AS TO WHAT COURSE OF ACTION YOU MAY TAKE TO SEEK REDRESS IF YOUR CLAIM IS NOT ALLOWED.

SECTION 19, ACT OF JUNE 10, 1922, 42 STAT. 632, APPLICABLE WHEN YOU TRAVELED TO WEST POINT, PROVIDED THAT CADETS AT THE MILITARY ACADEMY SHOULD RECEIVE THE SAME PAY AND ALLOWANCES AS WERE THEN OR LATER PROVIDED BY LAW FOR MIDSHIPMEN IN THE NAVY. THE ANNUAL APPROPRIATION ACTS, INCLUDING THE ACT IN EFFECT AT THE TIME UNDER CONSIDERATION, PROVIDED FOR MILEAGE AT 5 CENTS PER MILE TO MIDSHIPMEN ENTERING THE NAVAL ACADEMY WHILE PROCEEDING FROM THEIR HOMES TO THE NAVAL ACADEMY FOR EXAMINATION AND APPOINTMENT AS MIDSHIPMEN. UNDER SUCH AUTHORITY CADETS WHO PROCEEDED FROM THEIR HOMES TO THE MILITARY ACADEMY WERE ENTITLED TO 5 CENTS PER MILE FOR THAT TRAVEL, AS REIMBURSEMENT FOR THEIR TRAVEL EXPENSES. 22 COMP. GEN. 905.

PARAGRAPH 70, REGULATIONS FOR THE UNITED STATES MILITARY ACADEMY (1931 EDITION) PROVIDED THAT THE MILEAGE WHILE PROCEEDING FROM HOME TO THE MILITARY ACADEMY "* * * IS CREDITED TO THE ACCOUNT OF EACH CADET AFTER HIS ADMISSION TO THE ACADEMY.' SUBSEQUENT PARAGRAPHS INDICATE THAT THE TREASURER OF THE ACADEMY KEPT AN ACCOUNT WITH EACH CADET IN WHICH HE CREDITED MONTHLY PAY AND CHARGED THE CADET WITH SUMS AUTHORIZED TO BE PAID FOR HIS ACCOUNT. EACH CADET WAS REQUIRED TO KEEP ITEMIZED STATEMENTS OF HIS ACCOUNT WHICH WERE FURNISHED EACH SETTLEMENT PERIOD, AND CADETS WERE TO SIGN RECEIPT ROLLS FOR THEIR PAY, BUT WERE NOT ENTITLED TO RECEIVE THE BALANCE, IF ANY, WHICH MIGHT BE DUE, WITHOUT PERMISSION OF THE SUPERINTENDENT, UNTIL GRADUATED OR OTHERWISE SEPARATED FROM THE ACADEMY.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY REFUSED TO ALLOW A STALE CLAIM, WHETHER OR NOT THE CLAIMANT WAS AWARE OF HIS ENTITLEMENT FROM DATE OF ITS ACCRUAL, WHEN SUCH CLAIM IS BASED SOLELY ON STATEMENTS BY THE CLAIMANT WHICH CANNOT BE VERIFIED OR CORROBORATED BY GOVERNMENT RECORDS WHICH HAVE BEEN DESTROYED IN ACCORDANCE WITH LAW. COMP. GEN. 805. THE BURDEN DOES NOT REST UPON THIS OFFICE TO REFUTE CLAIMS PRESENTED FOR SETTLEMENT, BUT IT IS ON CLAIMANTS TO FURNISH EVIDENCE CLEARLY AND SATISFACTORILY PROVING THE VALIDITY AND NONPAYMENT OF A CLAIM. 18 COMP. GEN. 980; 31 ID. 340.

UNDER THE PROCEDURE OUTLINED IN THE REGULATIONS CITED ABOVE, THERE IS A STRONG PRESUMPTION THAT YOUR ACCOUNT WAS PROPERLY CREDITED WITH MILEAGE FOR YOUR TRAVEL TO THE ACADEMY, SINCE IT WOULD APPEAR TO BE AN ENTRY THAT WOULD NORMALLY ACCRUE TO EACH CADET INCIDENT TO HIS TRAVEL TO THE ACADEMY, UPON APPOINTMENT. SINCE THIRTY YEARS HAS ELAPSED SINCE YOUR CLAIM FIRST ACCRUED AND INASMUCH AS IT HAS BEEN ADMINISTRATIVELY REPORTED THAT THE RECORDS REQUIRED TO EITHER REFUTE OR CORROBORATE YOUR CLAIM ARE NO LONGER AVAILABLE, THERE IS NO BASIS UPON WHICH A DETERMINATION MAY BE MADE REGARDING YOUR ENTITLEMENT. ACCORDINGLY, IN THE ABSENCE OF CLEAR AND SATISFACTORY EVIDENCE PROVING THE VALIDITY AND NONPAYMENT OF YOUR CLAIM, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM.

WITH RESPECT TO THE FURTHER PURSUIT OF YOUR CLAIM, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71, THE SETTLEMENT OF CLAIMS AGAINST THE GOVERNMENT OF THE UNITED STATES IS THE RESPONSIBILITY OF THE GENERAL ACCOUNTING OFFICE, AND OUR DECISIONS WITH RESPECT TO SUCH CLAIMS ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. 31 U.S.C. 74. CERTAIN CLAIMS MAY BE THE BASIS OF SUITS IN THE UNITED STATES COURT OF CLAIMS. HOWEVER, SUCH SUITS MUST BE FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 2501.