B-143539, JUL. 27, 1960

B-143539, JUL. 27, 1960

TO MR. JOAQUIN S. TOPINIO:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1960, REQUESTING FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE PURSUANT TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, BARRING YOUR CLAIM FOR ARREARS OF PAY BELIEVED DUE AT DATE OF DISCHARGE, JULY 11, 1946, INCIDENT TO YOUR SERVICE AS A PHILIPPINE SCOUT, ASN 10 626 035.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JANUARY 13, 1960, AND ON FEBRUARY 1, 1960, THE CLAIMS DIVISION OF OUR OFFICE RETURNED YOUR CLAIM TO YOU AND ADVISED YOU THAT YOUR CLAIM WAS PRECLUDED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, A COPY OF WHICH WAS SENT YOU AND WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) 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, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"/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.'

BY LETTER DATED APRIL 7, 1960, IN RESPONSE TO YOUR LETTER OF MARCH 17, 1960, YOU AGAIN WERE ADVISED 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 YOUR PRESENT LETTER YOU AGAIN URGE CONSIDERATION OF YOUR CLAIM AND YOU APPEAR TO BELIEVE THE TEN-YEAR STATUTE OF LIMITATIONS WHICH YOU WERE ADVISED OF IN OUR PRIOR COMMUNICATIONS IS NOT ABSOLUTE IN VIEW OF SOME PAYMENTS YOU SAY HAVE BEEN MADE TO CERTAIN VETERANS AFTER A TEN-YEAR PERIOD.

EXCEPT IN THE CASE OF CERTAIN MEMBERS OF THE MILITARY AND NAVAL FORCES, THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED. ANY RIGHT YOU MAY HAVE HAD TO ANY ARREARS OF PAY ACCRUED TO YOU NOT LATER THAN JULY 11, 1946, THE DATE OF YOUR DISCHARGE, AND YOU DO NOT APPEAR TO HAVE BEEN A MEMBER OF THE MILITARY OR NAVAL FORCES AFTER THAT DATE. THE TEN-YEAR PERIOD IN YOUR CASE EXPIRED ON JULY 10, 1956. THERE IS NO RECORD OF ANY CLAIM FROM YOU HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE PRIOR TO THAT DATE. MOREOVER, CONTRARY TO YOUR THOUGHTS IN THE MATTER, OUR OFFICE IS WITHOUT LEGAL OBLIGATION OR AUTHORITY TO FURNISH COPIES OF THE ACT OF OCTOBER 9, 1940, TO POTENTIAL CLAIMANTS. AND, WE WOULD NOT KNOW WHO THEY MIGHT BE OR WHERE THEY RESIDE. FURTHERMORE, A LARGE PERCENTAGE OF THE CLAIMS THAT ARE BARRED BY THE 1940 ACT ARE WITHOUT MERIT AND WOULD BE FOR DISALLOWANCE IF THEY WERE NOT BARRED. THAT MIGHT WELL BE THE SITUATION RESPECTING YOUR CLAIM IF WE WERE PERMITTED TO GIVE IT CONSIDERATION AND EXAMINE THE PERTINENT RECORDS.

THE LIMITATION, PRESCRIBED BY STATUTE, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATIONS BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MALLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267.

ACCORDINGLY, YOUR CLAIM NOT HAVING BEEN RECEIVED HERE WITHIN TEN FULL YEARS AFTER ACCRUAL, WE TRUST THAT YOU WILL UNDERSTAND THAT IT IS PRECLUDED FROM OUR CONSIDERATION BY LAW AND THAT NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.