B-168125, NOV. 7, 1969

B-168125, NOV. 7, 1969

TO MR. LEODEGARIO C. BEGASO:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE USAFFE ON FEBRUARY 2, 1947.

OUR RECORDS SHOW THAT BY LETTER DATED JUNE 13, 1967, YOU PRESENTED A CLAIM FOR MUSTERING-OUT PAY TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ON THE BASIS OF YOUR MILITARY SERVICE DURING THE PERIOD OCTOBER 19, 1933 TO FEBRUARY 2, 1947. THE FINANCE CENTER FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION WHERE IT WAS RECEIVED ON JULY 31, 1967.

SINCE A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED BETWEEN THE DATE- OF YOUR DISCHARGE, FEBRUARY 2, 1947, THE DATE ON WHICH YOUR CLAIM ACCRUED, AND JULY 31, 1967, THE DATE ON WHICH IT WAS RECEIVED, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU ON AUGUST 14, 1967, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, AND ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION.

THE ACT OF OCTOBER 9, 1940, AS CODIFIED IN 31 U.S.C. 71A, READS IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN A LETTER DATED JANUARY 10, 1968, IN REPLY TO YOUR LETTER RECEIVED HERE ON DECEMBER 8, 1967, THE CLAIMS DIVISION EXPLAINED THE FACTS AND THE LAWS PERTAINING TO YOUR CLAIM AND ADVISED YOU THAT YOUR CLAIM COULD NOT BE CONSIDERED BECAUSE IT WAS BARRED BY THE ACT OF OCTOBER 9, 1940. IN REPLY TO THAT LETTER YOU URGED THE CLAIMS DIVISION THAT YOUR CLAIM SHOULD NOT BE BARRED BY THE 1940 ACT FOR THE REASON THAT YOU FILED YOUR CLAIM WITH THE SETTLEMENTS DIVISION, ARMY FINANCE CENTER.

BY LETTER DATED APRIL 9, 1969, OUR CLAIMS DIVISION AGAIN ADVISED YOU THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION BY OUR OFFICE INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE DATE YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE. IN THAT LETTER YOU WERE FURTHER ADVISED THAT THE FILING OF A CLAIM WITH THE DEPARTMENT OF THE ARMY DOES NOT CONSTITUTE A FILING IN THIS OFFICE WITHIN THE TERMS OF THE ACT OF OCTOBER 9, 1940, AND THAT THE GENERAL ACCOUNTING OFFICE HAS BEEN GRANTED NO POWER OF DISPENSATION UNDER THE ACT AND THEREFORE, NO EXCEPTIONS TO ITS PROVISIONS COULD BE MADE.

IN YOUR PRESENT LETTER YOU REFER TO THE "ACT NO. 263 OF THE 88TH CONGRESS DATED 9 JANUARY 1963 APPROVED SEPTEMBER 30, 1965," AND CERTAIN ADMINISTRATIVE REGULATIONS PROMULGATED PURSUANT TO THE MUSTERING-OUT PAYMENT ACT OF 1944, AS A BASIS FOR ALLOWANCE OF YOUR CLAIM.

WE ARE UNABLE TO IDENTIFY THE STATUTE YOU CITE AND WE ARE NOT AWARE OF ANY LAW WHICH MAY BE VIEWED AS TOLLING THE BARRING ACT IN YOUR CASE. ANY MUSTERING-OUT PAY TO WHICH YOU MAY HAVE BEEN ENTITLED ACCRUED TO YOU BY VIRTUE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691, ET SEQ. (1946 ED.). CLAIMS UNDER THAT ACT ARE SUBJECT TO THE TIME LIMITATIONS OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT SUCH CLAIMS BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS FROM THE DATE THE CLAIM FIRST ACCRUES.

ANY CLAIM THAT YOU MAY HAVE HAD FOR MUSTERING-OUT PAY ACCRUED ON FEBRUARY 2, 1947, AND COULD BE CONSIDERED ON ITS MERITS ONLY IF THIS OFFICE HAD RECEIVED IT BEFORE FEBRUARY 2, 1957. SINCE IT WAS NOT RECEIVED HERE UNTIL JULY 31, 1967, OUR CLAIMS DIVISION HAD NO ALTERNATIVE UNDER THE LAW BUT TO ADVISE YOU THAT CONSIDERATION THEREOF WAS BARRED.

ACCORDINGLY, SINCE CONSIDERATION OF YOUR CLAIM IS SPECIFICALLY PROHIBITED BY THE 1940 BARRING ACT, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.