B-176359, AUG 10, 1972

B-176359, AUG 10, 1972

CLAIMS AGAINST U.S. - STATUTE OF LIMITATIONS DECISION DISALLOWING THE CLAIM OF 2LT. RAYMOND W. SUCHY, AUS, RETIRED, FOR RETIRED PAY INCIDENT TO MILITARY SERVICE IN WORLD WAR II. CLAIMANT VOLUNTARILY WAIVED HIS RIGHT TO RECEIVE RETIRED PAY IN 1946, BUT BY A SETTLEMENT OF MAY 17, 1972, HE WAS PAID FOR THE TEN-YEAR PERIOD PRECEEDING THE RECEIPT OF THE CLAIM AT GAO. THE FACT THAT AN APPLICATION FOR RETIRED PAY WAS FILED WITH VA OR THE DEPARTMENT OF THE ARMY, OR THAT CLAIMANT VOLUNTARILY WAIVED HIS RIGHT TO SUCH PAY, DOES NOT REMOVE THE CLAIM FROM THE OPERATION OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. ACCORDINGLY, THE CLAIM IS BARRED BY THE TEN-YEAR STATUTE OF LIMITATIONS.

TO SECOND LIEUTENANT RAYMOND W. SUCHY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 15, 1972, IN WHICH YOU REQUEST REVIEW OF THE ACTION TAKEN BY THIS OFFICE ON YOUR CLAIM FOR RETIRED PAY INCIDENT TO YOUR MILITARY SERVICE DURING WORLD WAR II. YOUR CLAIM WAS ALSO THE SUBJECT OF A LETTER DATED MAY 23, 1972, FROM THIS OFFICE TO THE HONORABLE GLENN R. DAVIS, HOUSE OF REPRESENTATIVES, WHO HAS EXPRESSED INTEREST IN YOUR CASE.

IT APPEARS THAT DURING MOST OF THE PERIOD OF MARCH 1945 THROUGH NOVEMBER 1946 YOU WERE PAID RETIRED PAY INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY. THEREAFTER YOU APPARENTLY VOLUNTARILY WAIVED YOUR RIGHT TO RETIRED PAY AND RETURNED MOST OF THE PAYMENTS YOU HAD PREVIOUSLY RECEIVED.

YOUR LETTER DATED MARCH 6, 1972, REQUESTING REINSTATEMENT OF YOUR RETIRED PAY AND CLAIMING ANY RETROACTIVE AMOUNTS DUE WAS FORWARDED TO THIS OFFICE BY THE UNITED STATES ARMY FINANCE CENTER FOR CONSIDERATION UNDER THE PROVISIONS OF THE BARRING ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A. THAT CLAIM, WHICH WAS FIRST RECEIVED IN THIS OFFICE ON MARCH 17, 1972, WAS PARTIALLY ALLOWED IN THE AMOUNT OF $21,810.79 BY SETTLEMENT DATED MAY 17, 1972, REPRESENTING YOUR RETIRED PAY DUE FOR THE TEN-YEAR PERIOD IMMEDIATELY PRIOR TO THE RECEIPT OF YOUR CLAIM IN THIS OFFICE. YOU WERE ADVISED THAT THE PORTION OF YOUR CLAIM APPLICABLE TO THE PERIOD PRIOR TO MARCH 17, 1962, IS BARRED BY THE ACT OF OCTOBER 9, 1940.

IN REQUESTING A REVIEW OF THE SETTLEMENT OF YOUR CLAIM YOU INDICATE THAT YOU BELIEVE THAT THE BARRING ACT SHOULD NOT BE APPLIED IN YOUR CASE BECAUSE YOU ARE REASSERTING A CLAIM WHICH WAS ALREADY ESTABLISHED AND VOLUNTARILY INTERRUPTED BY YOU. IN SUPPORT OF YOUR POSITION YOU HAVE SUBMITTED A COPY OF A LETTER TO YOU DATED FEBRUARY 28, 1947, FROM A VETERANS ADMINISTRATION OFFICIAL IN WHICH IT IS STATED THAT YOU "HAVE THE RIGHT TO CAUSE YOUR RETIREMENT PAY TO BE DISCONTINUED FOR THE PRESENT WITHOUT JEOPARDIZING YOUR RIGHT TO MAKE A FUTURE CLAIM FOR SUCH PAYMENTS." YOU ALSO INDICATE THAT PRIOR TO FEBRUARY 1972 NEITHER THE VETERANS ADMINISTRATION NOR THE DEPARTMENT OF THE ARMY HAD ADVISED YOU OF THE BARRING ACT.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, SUPRA, PROVIDES IN PERTINENT PART AS FOLLOWS:

"(1) EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED ***."

WE HAVE LONG HELD THAT THE FILING OF A CLAIM IN THE ADMINISTRATIVE OFFICE CONCERNED DOES NOT MEET THE REQUIREMENTS OF THE BARRING ACT. SEE 32 COMP. GEN. 267 (1952) AND 42 COMP. GEN. 337, 339 (1963). THEREFORE, THE FACT THAT YOUR APPLICATION FOR RETIRED PAY WAS FILED WITH THE VETERANS ADMINISTRATION OR THE DEPARTMENT OF THE ARMY OR, THAT YOU VOLUNTARILY WAIVED YOUR RIGHT TO SUCH PAY DID NOT REMOVE YOUR CLAIM FROM THE OPERATION OF THE 1940 ACT.

ALSO, WHILE IT IS UNFORTUNATE THAT YOU WERE UNAWARE OF THE APPLICATION OF THE BARRING ACT IN YOUR CASE OR THAT YOU MAY HAVE BEEN MISINFORMED, WE HAVE NO AUTHORITY TO MAKE AN EXCEPTION TO THE STATUTE, OR TO GRANT AN EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED IN THIS OFFICE. THUS, CONSIDERATION OF YOUR CLAIM BY THIS OFFICE FOR THE PERIOD PRIOR TO MARCH 17, 1962, IS PROHIBITED BY LAW.

ACCORDINGLY, THE SETTLEMENT OF MAY 17, 1972, IS SUSTAINED.