B-146462, SEP. 26, 1961

B-146462, SEP. 26, 1961

TO MR. FRED R. ESCOBEDO:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30, 1961, REQUESTING FURTHER CONSIDERATION OF THE MATTER OF FAMILY ALLOWANCE PAYMENTS TO YOUR MOTHER, JOSEFA ESCOBEDO, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE UNITED STATES MARINE CORPS DURING THE PERIOD AUGUST 6, 1943, TO FEBRUARY 3, 1946.

YOU STATE THAT APPLICATION FOR FAMILY ALLOWANCE IN BEHALF OF YOUR MOTHER AND OTHER DEPENDENTS WAS MADE IN 1943 AND THAT YOU MADE INQUIRY IN 1945 CONCERNING THE ALLOWANCE. YOU FURTHER STATE THAT YOUR MOTHER RECEIVED CHECKS IN THE AMOUNT OF $47 EACH FOR TWO MONTHS AND IN THE AMOUNT OF $37 THEREAFTER. YOU NOW QUESTION THE CORRECTNESS OF THE AMOUNTS PAID BY THE UNITED STATES MARINE CORPS ALLOTMENT OFFICE TO YOUR MOTHER ALTHOUGH, IN A LETTER POSTMARKED JANUARY 16, 1961, TO HEADQUARTERS, UNITED STATES MARINE CORPS, YOU ALLEGED THAT YOUR MOTHER NEVER "COLLECTED" THE ,ALLOTMENT" (FAMILY ALLOWANCE).

BY LETTER DATED MAY 15, 1961, THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, ADVISED YOU THAT THE OFFICIAL RECORDS SHOWED THAT FAMILY ALLOWANCE PAYMENTS AT $47 A MONTH WERE MADE TO JOSEFA ESCOBEDO FOR THE PERIOD AUGUST 1943 THROUGH FEBRUARY 1946. YOU ALSO WERE ADVISED THAT UNDER SECTION 2 OF THE ACT OF JUNE 22, 1926, 44 STAT. 761, ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT OR WARRANTS APPEARING TO HAVE BEEN PAID SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS AFTER ISSUANCE AND, SINCE THE CLAIM HERE WAS NOT PRESENTED WITHIN SIX YEARS OF DATE OF ISSUANCE OF THE CHECKS, IT WAS BARRED.

ASIDE FROM CONSIDERATIONS AS TO A CLAIM FOR PROCEEDS OF CHECKS ISSUED IN PAYMENT OF FAMILY ALLOWANCE, ANY CLAIM PRESENTED AT THIS TIME ON THE BASIS THAT FAMILY ALLOWANCE HAD NOT BEEN PAID, OR PAID IN AN INCORRECT AMOUNT, ALSO WOULD BE BARRED UNDER SECTION 1 OF 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 UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENCY 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.'

IT WILL BE OBSERVED THAT THE STATUTE, WITH EXCEPTIONS NOT HERE MATERIAL, EXPRESSLY BARS ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT DOES NOT MEET THIS STATUTORY REQUIREMENT. THE LIMITATION, PRESCRIBED BY THE STATUTE, 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. 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.

ACCORDINGLY, IN VIEW OF THE ABOVE-CITED STATUTORY PROVISIONS, NO FURTHER ACTION MAY BE TAKEN IN THE MATTER BY OUR OFFICE, AND THE DENIAL OF THE CLAIM BY OUR CLAIMS DIVISION IS CORRECT, AND UPON REVIEW, IS SUSTAINED.