B-176090, JUL 14, 1972

B-176090, JUL 14, 1972

CLAIMS AGAINST U.S. - BURDEN OF PROOF - EXCESSIVE TIME DENIAL OF CLAIM BY PAUL H. HENRICHS FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN FIRST LIEUTENANT AND CAPTAIN FOR A PERIOD OF ACTIVE DUTY FOR TRAINING FROM AUGUST 3-17, 1952. THE BURDEN OF PROOF AS TO THE EXISTENCE AND NONPAYMENT OF A CLAIM AGAINST THE GOVERNMENT IS ON THE PERSON WHO ASSERTS SUCH CLAIM. WHERE, AS HERE, THE PERSON CONCERNED MAKES NO INQUIRY CONCERNING THE CLAIM FOR OVER 16 YEARS, DURING WHICH PERIOD THE APPLICABLE RECORDS ARE DESTROYED PURSUANT TO LAW, GAO HAS NO ALTERNATIVE BUT TO ASSUME THAT THE CLAIM, IF VALID, HAS BEEN PAID, OR TO DISALLOW THE CLAIM FOR LACK OF PROOF.

TO MR. PAUL H. HENRICHS:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 16, 1972, REQUESTING REVIEW OF OUR CLAIMS DIVISION LETTER OF MAY 9, 1972, WHICH DENIED YOUR CLAIM FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN FIRST LIEUTENANT AND CAPTAIN FOR A PERIOD OF ACTIVE DUTY FOR TRAINING FROM AUGUST 3 TO 17, 1952. WE HAVE ALSO RECEIVED A COMMUNICATION FROM CONGRESSMAN CRAIG HOSMER CONCERNING YOUR CLAIM.

THE FILE INDICATES THAT A CLAIM WAS RECEIVED IN THIS OFFICE, APPARENTLY IN 1955 AND IN ACCORDANCE WITH THE PROCEDURES THEN IN EFFECT, IT WAS REFERRED TO THE SETTLEMENT DIVISION, OFFICE CHIEF OF FINANCE, U.S. ARMY, INDIANAPOLIS, INDIANA, FOR APPROPRIATE SETTLEMENT ACTION. YOU WERE SO NOTIFIED. IN ADDITION YOU WERE TOLD THAT IF SETTLEMENT WAS NOT MADE BY THE OFFICE CHIEF OF FINANCE, THE CLAIM WOULD BE RETURNED TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, FOR SETTLEMENT AND YOU WOULD BE ADVISED OF THE ACTION TAKEN.

NO FURTHER ACTION WAS TAKEN ON YOUR PART FROM 1955 UNTIL YOUR UNDATED LETTER TO THE SETTLEMENT DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REQUESTED ADVICE AS TO THE STATUS OF YOUR 1955 CLAIM. THIS LETTER WAS FORWARDED TO THE GENERAL ACCOUNTING OFFICE AND WAS RECEIVED HERE ON AUGUST 9, 1971. A SEARCH OF THE GENERAL ACCOUNTING OFFICE FILES ON THIS MATTER HAS NOT SHOWN THAT A REPLY WAS RECEIVED BY THIS OFFICE FROM THE SETTLEMENT DIVISION, OFFICE CHIEF OF FINANCE U.S. ARMY AS TO THE ACTION TAKEN ON YOUR 1955 CLAIM. WE HAVE BEEN INFORMED THAT THE PAY ACCOUNTS FOR THE PERIOD 1 JULY 1952 TO 31 AUGUST 1955, RELATIVE TO THE DISBURSING OFFICE WHICH HAD YOUR PAY RECORDS HAVE BEEN DESTROYED AND IT IS UNKNOWN WHAT PREVIOUS ACTION WAS TAKEN ON YOUR CLAIM.

WHILE IT IS TRUE THAT, ACCORDING TO DOCUMENTS SUBMITTED BY YOU, DURING THE PERIOD 1954-1955 YOU ATTEMPTED TO RESOLVE YOUR PROBLEM OF PAY, SINCE 1955 YOU HAVE FAILED TO TAKE ANY ACTION ON YOUR CLAIM.

IN THE DOCUMENTS SUBMITTED BY YOU, YOU HAVE CLAIMED THAT YOU WERE ON A TOUR OF ACTIVE DUTY FOR TRAINING FOR THE PERIOD AUGUST 3 TO 17, 1952, AND THAT YOU WERE PROMOTED TO CAPTAIN EFFECTIVE JULY 25, 1952. HOWEVER, BY 2ND INDORSEMENT, DATED JULY 6, 1954, THE UNIT ADVISOR, DET. A 6121 USAR CONTROL GROUP, STATED THAT YOU WERE APPOINTED CAPTAIN ON AUGUST 15, 1952. THUS IT WOULD APPEAR THAT YOUR APPOINTMENT MAY HAVE PROVIDED FOR A DATE OF RANK AS CAPTAIN FROM JULY 25, 1952, BUT SINCE IT IS STATED THAT YOUR APPOINTMENT WAS ON AUGUST 15, 1952, YOU WOULD HAVE BEEN ENTITLED TO THE HIGHER RATE AS A CAPTAIN ONLY FROM THAT DATE.

THIS OFFICE HAS CONSISTENTLY HELD THAT THE BURDEN OF PROOF AS TO THE EXISTENCE AND NONPAYMENT OF A CLAIM AGAINST THE GOVERNMENT IS ON THE PERSON WHO ASSERTS SUCH CLAIM. WHILE PROOF OF THE VALIDITY OF A CLAIM ORDINARILY IS OBTAINED FROM GOVERNMENT RECORDS, WHERE, AS HERE, THE PERSON CONCERNED MAKES NO INQUIRY CONCERNING HIS CLAIM FOR A PERIOD OF OVER 16 YEARS DURING WHICH THE RECORDS WHICH WOULD EITHER PROVE OR DISPROVE THE CLAIM ARE DESTROYED PURSUANT TO THE LAW RELATING TO THE DISPOSAL OF OLD RECORDS, THIS OFFICE HAS NO ALTERNATIVE OTHER THAN TO ASSUME THAT THE CLAIM, IF VALID, HAS BEEN PAID, OR TO DISALLOW THE CLAIM FOR LACK OF PROOF.

ACCORDINGLY, THERE IS NO FURTHER ACTION WE MAY TAKE IN THIS MATTER AND THE ACTION OF OUR CLAIMS DIVISION IS SUSTAINED.

ON DECEMBER 8, 1952, THE VETERANS ADMINISTRATION REPORTED TO THIS OFFICE AS UNCOLLECTIBLE YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $96.09 ON ACCOUNT OF OVERPAYMENT OF NATIONAL SERVICE LIFE INSURANCE DIVIDENDS, UNPAID LIEN FOR PREMIUMS AND LIEN INTEREST. WE HAVE NO RECORD THAT THIS INDEBTEDNESS HAS EVER BEEN PAID BY YOU. EVEN IF IT COULD BE ESTABLISHED AT THIS LATE DATE THAT YOU ARE ENTITLED TO THE DIFFERENCE IN PAY CLAIMED, ANY AMOUNT FOUND DUE WOULD BE FOR SET OFF AGAINST YOUR INDEBTEDNESS TO THE UNITED STATES IF THE INDEBTEDNESS HAS NOT ALREADY BEEN LIQUIDATED.