B-169543, APR. 30, 1970

B-169543, APR. 30, 1970

LEAVES OF ABSENCE--MILITARY PERSONNEL--PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC.--STATUTE OF LIMITATION CLAIM FOR UNUSED FURLOUGH TIME PAY INCIDENT TO WORLD WAR II SERVICE MAY NOT BE CONSIDERED BECAUSE NOT PRESENTED BEFORE JUNE 30, 1951, AS PRESCRIBED IN ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 31 U.S.C. 34 (A) (1952 ED.). MOREOVER, ACTION OF GAO ON CLAIMS AGAINST U.S. IS FINAL AND CONCLUSIVE ON EXECUTIVE BRANCH OF GOVT. ALTHOUGH U.S. COURT OF CLAIMS AND DIST. COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS, SUCH CLAIMS MUST BE FILED FOR SUIT WITHIN 6 YEARS OF DATE THEY FIRST ACCRUE. SEE CT. CASES CITED.

TO MR. NORMAN T. EBERT:

YOUR LETTER OF APRIL 11, 1970, REQUESTS REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON MARCH 19, 1970, IN DENYING YOUR CLAIM FOR PAY FOR UNUSED FURLOUGH TIME INCIDENT TO YOUR SERVICE IN THE U.S. ARMY DURING WORLD WAR II. YOUR CLAIM WAS DENIED FOR THE REASON THAT IT WAS NOT FILED WITHIN THE TIME LIMITATION PRESCRIBED IN SECTION 5 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 34 (A) (1952 ED.).

IN YOUR LETTER YOU SAY THAT YOU ARE WELL AWARE OF THE FACT THAT YOU DID NOT APPLY FOR THE MONEY PRIOR TO JUNE 30, 1951. YOU CONTEND, HOWEVER, THAT YOUR CLAIM SHOULD RECEIVE FAVORABLE CONSIDERATION- NOTWITHSTANDING ANY STATUTES OF LIMITATION--BECAUSE YOU WERE NOT ADVISED OF YOUR RIGHTS AND THAT YOU WERE NOT AWARE OF ANY REQUIREMENT FOR FILING CLAIMS WITHIN A CERTAIN TIME.

THE ARMED FORCES LEAVE ACT OF 1946, AS ORIGINALLY ENACTED, 60 STAT. 963, PROVIDED IN SECTION 5 (A) THAT SETTLEMENT FOR LEAVE ACCRUING TO FORMER ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO THE DATE OF ENACTMENT OF THAT ACT (AUGUST 9, 1946) WOULD BE MADE "IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN SEPTEMBER 1, 1947." THAT TIME LIMITATION WAS EXTENDED TO SEPTEMBER 1, 1948, BY THE ACT OF JULY 27, 1947, CH. 344, 61 STAT. 510, AND LATER EXTENDED TO JUNE 30, 1951, BY THE ACT OF APRIL 26, 1950, CH. 105, 64 STAT. 88. NO FURTHER EXTENSION OF TIME FOR FILING SUCH CLAIM HAS BEEN GRANTED.

THE LIMITATION ON THE TIME FOR FILING YOUR APPLICATION PRESCRIBED IN SECTION 5 OF THE ARMED FORCES LEAVE ACT OF 1946 CONSTITUTES A STATUTE OF LIMITATION AND IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE YOUR CLAIM CONSIDERED BY THE DEPARTMENT CONCERNED AND THIS OFFICE. COMPARE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F. 2D 154 (1932).

CONTRARY TO YOUR APPARENT BELIEF, AT THE TIME OF ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946 WIDE PUBLICITY WITH RESPECT TO ITS ENACTMENT WAS GIVEN IN THE NEWSPAPERS AND IN THE MAGAZINES AND OTHER PUBLICATIONS FOR MEMBERS AND FORMER MEMBERS OF THE ARMED FORCES. BUT EVEN IF YOU WERE NOT AWARE OF THE PERTINENT LIMITATION IN THE STATUTE, WE MAY NOT GRANT ANY EXTENSION OF TIME WITHIN WHICH YOUR APPLICATION MAY BE FILED. DION V. UNITED STATES, 137 CT. CL. 166 (1956). WHILE IT IS UNFORTUNATE THAT SOME PERSONS LIKE YOURSELF DID NOT LEARN OF THE BENEFITS OF THE 1946 ACT UNTIL AFTER THE PERIOD FOR FILING CLAIM HAD EXPIRED, THE LAW MAKES NO PROVISION FOR THE PAYMENT OF THEIR CLAIMS.

ACCORDINGLY, SINCE YOU MADE NO CLAIM ON OR BEFORE JUNE 30, 1951, THERE IS NO LEGAL AUTHORITY FOR PAYMENT OF ANY AMOUNT THAT MAY HAVE BEEN DUE YOU UNDER THE 1946 ACT AND FURTHER ACTION BY THIS OFFICE IN CONNECTION WITH YOUR CLAIM WOULD NOT BE APPROPRIATE.

CONCERNING YOUR REQUEST THAT IF WE DO NOT HAVE AUTHORITY TO PROCESS THE CLAIM FOR PAYMENT THAT WE TAKE IT TO THE NEXT HIGHEST AUTHORITY, THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. ACCORDINGLY, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM. THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES, BUT SUCH CLAIMS MUST BE FILED THERE WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUE. 28 U.S.C. 1346, 1491, 2401 AND 2501.

WE TRUST THIS LETTER WILL ENABLE YOU TO BETTER UNDERSTAND THE REASONS WHY WE ARE WITHOUT LEGAL AUTHORITY TO CONSIDER YOUR CLAIM.