B-144177, NOV. 3, 1960

B-144177, NOV. 3, 1960

TO MRS. IVA WARNICK:

REFERENCE IS MADE TO YOUR UNDATED LETTER POSTMARKED SEPTEMBER 25, 1960, RELATIVE TO YOUR CLAIM FOR PAYMENT FOR ACCRUED LEAVE BELIEVED TO BE DUE INCIDENT TO THE MILITARY SERVICE OF YOUR SON, PATRICK WARNICK, DECEASED.

YOU HAVE BEEN ADVISED IN SEVERAL LETTERS FROM THIS OFFICE THAT WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM DUE TO THE FACT THAT IT WAS NOT FILED WITHIN THE TIME LIMITATIONS FIXED BY LAW. IN VIEW OF YOUR STATEMENTS THAT THE GOVERNMENT OWES IT REGARDLESS OF SUCH LIMITATIONS, YOU ARE ADVISED THAT AT THE TIME OF HIS DISCHARGE FROM THE SERVICE IN 1945, THERE WAS NO PROVISION OF LAW WHICH PERMITTED PAYMENT FOR UNUSED LEAVE WHICH HAD ACCUMULATED PRIOR TO THAT TIME, PAYMENT FOR ACCRUED LEAVE AT TIME OF DISCHARGE WAS FIRST AUTHORIZED BY THE ARMED FORCES LEAVE ACT OF 1946, AND SECTION 5 (A) OF THAT ACT, AS AMENDED, 37 U.S.C. 34 (A), PROVIDES THAT PAYMENT AS AUTHORIZED IN THAT ACT "SHALL * * * BE SETTLED AND COMPENSATED FOR ONLY * * * IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN JUNE 30, 1951.' NOT ONLY DID YOUR SON FAIL TO SUBMIT A CLAIM UNDER THAT ACT, BUT YOU DELAYED FILING YOUR CLAIM UNTIL 1959. THE CONDITION ON WHICH THE RIGHT WAS BASED NOT HAVING BEEN MET, THE RIGHT CEASED TO EXIST. EVEN IF THIS WERE NOT SO, THERE WOULD BE FOR CONSIDERATION THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES:

"THAT 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 * * * 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 * *

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 TO PAYMENT FOR LEAVE NOT USED BY YOUR SON FIRST ACCRUED WHEN THE LEAVE ACT OF AUGUST 9, 1946, WAS ENACTED INTO LAW. THE 10-YEAR PERIOD EXPIRED ON AUGUST 8, 1956.

THE LIMITATION, PRESCRIBED BY THE 1940 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 IN THIS CONNECTION BARTLESVILLE ZINC COMPANY V. MELLON, 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.

IT IS HOPED THAT THE FOREGOING WILL MAKE IT CLEAR TO YOU WHY FURTHER CONSIDERATION MAY NOT BE GIVEN YOUR CLAIM.