B-176116, JUL 11, 1972

B-176116, JUL 11, 1972

MILITARY PERSONNEL - UNUSED LEAVE - BARRING PROVISIONS OF ARMED FORCES LEAVE ACT CONCERNING THE CLAIM OF EDGAR A. MARTIN FOR AN AMOUNT BELIEVED DUE INCIDENT TO HIS ARMY SERVICE DURING WORLD WAR II. THE TIME LIMITATION UNDER THE ARMED FORCES LEAVE ACT FOR THE SUBMISSION OF CLAIMS INVOLVING UNUSED LEAVE, WAS EXTENDED TO JUNE 30, 1951, BY THE ACT OF APRIL 26, 1950, 37 U.S.C. 34(A). GAO, AS WELL AS THE DEPARTMENT OF THE ARMY, IS WITHOUT LEGAL AUTHORITY TO CONSIDER CLAIMS SUBMITTED AFTER THAT DATE. ACCORDINGLY, THE CLAIM IS DENIED.

TO MR. EDGAR A. MARTIN:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1971, TO MRS. RICHARD NIXON, REFERRED HERE FOR A REPLY, CONCERNING YOUR CLAIM FOR AN AMOUNT BELIEVED DUE FOR ACCRUED LEAVE INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY DURING WORLD WAR II.

YOUR CLAIM OF MAY 29, 1971, WAS ORIGINALLY DENIED BY OUR CLAIMS DIVISION ON OCTOBER 5, 1971, ON THE BASIS THAT SUCH CLAIM WAS BARRED BY THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, 54 STAT. 1061. SUBSEQUENTLY, IN RESPONSE TO YOUR INQUIRY, THE UNITED STATES ARMY FINANCE CENTER ADVISED YOU BY COMMUNICATION DATED OCTOBER 13, 1971, THAT UNDER THE TERMS OF THE ARMED FORCES LEAVE ACT OF 1946, CLAIMS FOR SETTLEMENT OF UNUSED LEAVE DUE AS OF THE DATE OF DISCHARGE, IF DISCHARGE WAS BEFORE SEPTEMBER 1, 1946, MUST HAVE BEEN FILED BEFORE JUNE 30, 1951. WHILE YOU WERE DISCHARGED ON FEBRUARY 7, 1946, YOU WERE FURTHER ADVISED THAT, SINCE YOUR APPLICATION WAS RECEIVED AFTER JUNE 30, 1951, FAVORABLE CONSIDERATION COULD ONLY BE GIVEN IF ADEQUATE PROOF CAN BE FURNISHED THAT YOU COMMUNICATED WITH THE DEPARTMENT OF THE ARMY NOT LATER THAN JUNE 30, 1951, REGARDING ENTITLEMENT OF UNUSED LEAVE DUE.

IN YOUR LETTER OF DECEMBER 28, 1971, YOU REITERATE YOUR CLAIM FOR ACCRUED LEAVE. HOWEVER, YOU DO NOT CONTEND, NOR DOES THE RECORD SHOW, THAT YOU FILED CLAIM PRIOR TO JUNE 30, 1951, FOR ANY UNUSED LEAVE PAYMENT.

THE ARMED FORCES LEAVE ACT OF 1946, AS ORIGINALLY ENACTED, 60 STAT. 963, PROVIDED IN SECTION 5(A) THAT SETTLEMENT FOR LEAVE ACCRUING TO FORMER ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO THE DATE OF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, 37 U.S.C. 34(A) (1952 ED.). 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). EVEN IF YOU WERE NOT AWARE OF THE PERTINENT JUNE 30, 1951, LIMITING DATE FOR FILING UNDER 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 CLAIMS 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. WE ARE RETURNING HEREWITH THE COPIES OF THE SERVICE PAPERS SUBMITTED BY YOU TO THE DEPARTMENT OF THE ARMY IN SUPPORT OF YOUR CLAIM.

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