B-150008, MAY 8, 1963, 42 COMP. GEN. 622

B-150008, MAY 8, 1963, 42 COMP. GEN. 622

GRATUITIES - SIX MONTHS' DEATH - DATE OF ACCRUAL - STATUTE OF LIMITATIONS A CLAIM FOR THE 6 MONTHS' DEATH GRATUITY AUTHORIZED UNDER 10 U.S.C. 1475, ET SEQ., MAY NOT BE VIEWED AS A CLAIM FOR THE PAYMENT OF A TRUST FUND DEPOSITED WITH THE GOVERNMENT UNDER STATUTORY AUTHORITY AS FUNDS OF THE CLAIMANT AND NOT SUBJECT TO THE 10-YEAR STATUTE OF LIMITATIONS PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, THE PAYMENT OF THE CLAIM BEING CONTINGENT UPON AN ADJUDICATION OF THE ELIGIBILITY OF THE CLAIMANT, WHO IS REQUIRED TO ESTABLISH HIS RIGHT TO THE GRATUITY, AND UPON A DETERMINATION OF THE AMOUNT DUE, WHICH IF PAYABLE IS MADE FROM APPROPRIATED FUNDS; THEREFORE, A CLAIMANT WHO FAILED TO PRESENT THE PROPER FORMS FOR THE GRATUITY WITHIN 10 FULL YEARS AFTER THE ACCRUAL OF HIS CLAIM AT THE DATE OF DEATH, OR THE DETERMINATION OF PRESUMPTIVE DEATH OF A MEMBER OF THE UNIFORMED SERVICES, IN THE ABSENCE OF AUTHORITY TO WAIVE THE STATUTE, IS NOT ENTITLED TO THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY INCIDENT TO THE MEMBER'S DEATH.

TO GEORGIA LOU RADER, MAY 8, 1963:

REFERENCE IS MADE TO LETTER OF APRIL 4, 1963, FROM YOUR ATTORNEYS, BANKS AND LOCKRIDGE, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION TO YOU DATED OCTOBER 12, 1962, B-150008, CONCERNING YOUR CLAIM FOR THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY BELIEVED TO BE DUE YOU INCIDENT TO THE DEATH OF YOUR LATE SON, SECOND LIEUTENANT KENNETH R. RADER, WHOSE DEATH OCCURRED ON MARCH 27, 1945. IN THAT DECISION, COPY HEREWITH, WE CAREFULLY REVIEWED THE FACTS AND THE LAW INVOLVED IN THE CASE AND CONCLUDED THAT THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, BARRED YOUR CLAIM FOR THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY.

IN THEIR LETTER OF APRIL 4, 1963, YOUR ATTORNEYS QUOTE PART OF THE LETTER OF SEPTEMBER 10, 1945, FROM THE OFFICE OF SPECIAL SETTLEMENT ACCOUNTS, ARMY SERVICE FORCES, TO YOU AS FOLLOWS:

THIS OFFICE RESPECTS YOUR WISHES IN THIS MATTER AND WILL TAKE NO FURTHER ACTION WITH REGARD TO THE PAYMENT OF THE GRATUITY AT THE PRESENT TIME. THE FILE WILL BE RETAINED UNTIL SUCH TIME AS YOU MAY WISH TO SUBMIT YOUR CLAIM.

YOUR ATTORNEYS SAY IT WOULD SEEM THAT THE ABOVE-QUOTED STATEMENT WOULD WAIVE THE STATUTE OF LIMITATIONS AND MAKE THE GOVERNMENT A TRUSTEE FOR FUNDS OWING TO YOU. ALSO, IT APPEARS TO BE THEIR VIEW THAT THE GOVERNMENT'S OBLIGATION TO PAY YOU THE 6 MONTHS' DEATH GRATUITY BECAME FIXED UPON THE DEATH OF YOUR SON AND THAT THE STATUTE ITSELF OBVIATES THE NECESSITY FOR FILING A CLAIM. THEY REQUEST REFERENCE TO ANY DECISIONS WE HAVE CONCERNING THE WAIVER OF STATUTE OF LIMITATIONS OR THE IDEA THAT THE GOVERNMENT REALLY ACTED AS TRUSTEE ONCE THEY WERE PUT ON NOTICE OF LIEUTENANT RADER'S DEATH.

IT IS OUR VIEW THAT AS A GENERAL RULE THE BARRING PROVISIONS OF THE 1940 ACT, QUOTED IN PERTINENT PART IN OUR DECISION OF OCTOBER 12, 1962, DO NOT APPLY TO CLAIMS FOR MONEYS WHICH ARE NOT HELD BY THE GOVERNMENT ON ITS OWN ACCOUNT BUT MERELY AS TRUSTEE FOR OTHERS. CLAIMS OF THE CLASS THUS INVOLVED ARE FOR FUNDS DEPOSITED WITH THE GOVERNMENT IN TRUST, UNDER STATUTORY AUTHORITY, SUCH AS POSTAL SAVINGS DEPOSITS, AND SAVINGS DEPOSITS OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES. IT WILL BE NOTED THAT SUCH CLAIMS ARE FOR AMOUNTS DUE FROM THE UNITED STATES TO WHICH A PROPER CLAIMANT IS ENTITLED, THE AMOUNT DUE BEING ALREADY FIXED AND DETERMINED AND HELD IN THE TREASURY, NOT AS APPROPRIATED FUNDS OF THE GOVERNMENT BUT AS FUNDS OF THE CLAIMANT. SEE UNITED STATES V. TAYLOR, 104 U.S. 216, 221; UNITED STATES V. WARDWELL, 172 U.S. 48.

A DIFFERENT SITUATION EXISTS, HOWEVER, WITH RESPECT TO A CLAIM FOR 6 MONTHS' DEATH GRATUITY FOR THE REASON THAT PAYMENT OF THE GRATUITY TO THE CLAIMANT IS CONTINGENT ON AN ADJUDICATION OF THE ELIGIBILITY OF THE CLAIMANT TO RECEIVE IT AND A DETERMINATION AS TO THE AMOUNT PAYABLE. SUCH CASES THE CLAIMANT IS REQUIRED TO ESTABLISH HIS RIGHT TO RECEIVE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY. IF SUCH RIGHT BE ESTABLISHED THE AMOUNT DUE IS FOR PAYMENT, NOT FROM TRUST FUNDS, BUT FROM FUNDS APPROPRIATED BY THE CONGRESS FOR THE PAYMENT OF MEMBERS OF THE ARMED FORCES. 10 U.S.C. 1480 (D). IT WAS FOR THIS REASON THAT BY LETTER DATED MAY 28, 1945, THE OFFICE OF SPECIAL SETTLEMENT ACCOUNTS, ARMY SERVICE FORCES, 27 PINE STREET, NEW YORK 5, NEW YORK, FURNISHED YOU WITH WD FD FORM NO. 6 (PUBLIC VOUCHER FOR SIX MONTHS' DEATH GRATUITY PAY) AND INSTRUCTIONS FOR ITS ACCOMPLISHMENT. THIS ACTION WAS TAKEN IN ACCORDANCE WITH PARAGRAPH 5B (3), ARMY REGULATIONS 35 1540, DATED APRIL 19, 1945, IN EFFECT AT THE TIME. SIMILAR PROVISIONS ARE CONTAINED IN THE CURRENT REGULATIONS. SEE PARAGRAPH 24-103, ARMY REGULATIONS 37-104, DATED MAY 24, 1962. AS YOUR ATTORNEYS STATED IN THEIR LETTER OF APRIL 4, 1963, YOU DID NOT FILL OUT THE FORMS. IN FACT YOU DID NOT MAKE ANY CLAIM UNTIL JULY 13, 1962, WHEN YOU WROTE TO THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, AND REQUESTED THE PROPER FORMS TO MAKE CLAIM FOR THE GRATUITY.

THE UNITED STATES COURT OF CLAIMS IN INTERPRETING THE PROVISIONS OF 28 U.S.C. 2501, A STATUTE OF LIMITATIONS SIMILAR TO THE ACT OF OCTOBER 9, 1940, HELD IN THE CASE OF EMPIRE INSTITUTE OF TAILORING, INC. V. UNITED STATES, 142 CT.CL. 165, 167, AS FOLLOWS:

THIS COURT HAS CONSISTENTLY HELD THAT A CLAIM FIRST ACCRUES ON THE DATE WHEN ALL EVENTS HAVE OCCURRED WHICH FIX THE LIABILITY, IF ANY, OF THE UNITED STATES AND ENTITLES THE CLAIMANT TO SUE THEREON. LEVINE V. UNITED STATES, 133 C.CLS. 774; SESE V. UNITED STATES, 125 C.CLS. 516; GRAY V. UNITED STATES, 124 C.CLS. 313; RELIANCE MOTORS, INC., ET AL. V. UNITED STATES, 112 C.CLS. 324 * * *.

SEE, ALSO, CANNON, ET AL. V. UNITED STATES, 137 CT.CL. 104, 107. SINCE THE PERTINENT STATUTE (10 U.S.C. 1475, ET SEQ.) PROVIDES FOR THE PAYMENT OF THE GRATUITY "IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH," A CLAIM FOR SUCH AMOUNT FIRST ACCRUES AT THE DATE OF DEATH OR DETERMINATION OF PRESUMPTIVE DEATH, AND IS PROPERLY FOR PRESENTATION BY A POTENTIAL BENEFICIARY IMMEDIATELY FOLLOWING SUCH DATE. YOUR CLAIM FOR THE 6 MONTHS' DEATH GRATUITY FIRST ACCRUED ON MARCH 27, 1945. THE 10-YEAR PERIOD IN YOUR CASE EXPIRED ON MARCH 26, 1955. YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE ON AUGUST 8, 1962. HENCE, REGARDLESS OF THE MERITS OF THE CLAIM, IT IS BARRED FROM CONSIDERATION BY US.

WITH RESPECT TO YOUR ATTORNEYS' STATEMENT CONCERNING WAIVER OF THE STATUTE OF LIMITATIONS, THERE IS NO AUTHORITY IN EXISTING LAW FOR ANY WAIVER OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940. 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, COPIES ENCLOSED.

ACCORDINGLY, SINCE YOUR CLAIM WAS NOT RECEIVED HERE WITHIN TEN FULL YEARS AFTER ACCRUAL, WE TRUST 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.