B-167628, AUG. 15, 1969

B-167628, AUG. 15, 1969

MILITARY - WORLD WAR II SERVICE DECISION SUSTAINING ACTION OF CLAIMS DIVISION IN BARRING PAY ALLOTMENT CLAIM OF FATHER OF FORMER MEMBER OF ENLISTED RESERVE INCIDENT TO SERVICE IN 1947-1948 ON BASIS THAT CLAIM WAS NOT RECEIVED WITHIN 10 YEARS OF ACCRUAL OF RIGHT.

TO MR. ANDERSON DINKINS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 18, 1969, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN ON YOUR CLAIM FOR CERTAIN ALLOTMENTS OF PAY BELIEVED TO HAVE BEEN MADE IN YOUR FAVOR BY YOUR SON, ULYSSES DINKINS, ER 57 317 027, WHILE SERVING IN THE ARMY OF THE UNITED STATES DURING THE PERIOD JULY 27, 1948, TO THE DATE OF HIS RELEASE FROM ACTIVE DUTY ON JULY 28, 1949. HE WAS THEN TRANSFERRED TO THE ENLISTED RESERVE CORPS AND DID NOT SERVE THEREAFTER ON ACTIVE DUTY IN A STATUS IN WHICH HE WAS PERMITTED TO ALLOT PART OF HIS PAY TO YOU.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED MARCH 31, 1965, MAY 27, 1965, AUGUST 6, 1965, JANUARY 21, 1966, OCTOBER 10, 1966, AND MAY 18, 1967, EACH OF WHICH ADVISED YOU THAT BY VIRTUE OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, CONSIDERATION OF YOUR CLAIM FOR SUCH ALLOTMENT BY THIS OFFICE IS BARRED.

WHILE IN A NUMBER OF YOUR LETTERS TO THIS OFFICE YOU SEEM TO HAVE UNDERSTOOD WHY WE ARE UNABLE TO CONSIDER YOUR CLAIM, YOU NOW CALL TO OUR ATTENTION AN ARTICLE IN A ST. LOUIS NEWSPAPER CONCERNING A RECENT DECISION OF THE COURT OF CLAIMS (DOROTHY B. LOUKS V UNITED STATES, 184 CT. CL. 361 (1968) (, WHICH LEADS YOU TO BELIEVE THAT SINCE THE PLAINTIFF IN THAT CASE HAD BEEN DISCHARGED FROM HER EMPLOYMENT IN FEBRUARY 1958, AND THE DECISION IN HER FAVOR WAS ENTERED MORE THAN 10 YEARS AFTER HER DISMISSAL, A SIMILAR RESULT SHOULD HAVE BEEN REACHED IN YOUR CASE.

THE RECORD IN THE LOUKS CASE SHOWS THAT THE PLAINTIFF FILED SUIT IN THE COURT OF CLAIMS ON JUNE 23, 1961, APPROXIMATELY 3 YEARS AFTER SHE WAS DISCHARGED FROM HER POSITION. THE STATUTE OF LIMITATIONS IN THAT CASE, 28 U.S.C. 2501, REQUIRED THE FILING OF THE PETITION "WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES.' SINCE THE COURT DECIDED THAT SHE HAD BEEN WRONGFULLY DISCHARGED, JUDGMENT WAS ENTERED IN HER FAVOR FOR SALARY FROM THE DATE OF HER DISMISSAL UNTIL THE DATE OF JUDGMENT, AS THOUGH SHE HAD CONTINUED TO BE EMPLOYED IN HER POSITION. IT MUST BE UNDERSTOOD, HOWEVER, THAT HAD SHE FAILED TO FILE HER PETITION WITH THE COURT WITHIN THE PERIOD PRESCRIBED BY THE STATUTE OF LIMITATIONS, SHE WOULD HAVE BEEN DENIED RECOVERY NO MATTER HOW MERITORIOUS HER CLAIM MAY HAVE BEEN. THIS IS DUE TO THE FACT THAT THE STATUTES GOVERNING SUCH MATTERS, IN HER CASE AS WELL AS IN YOURS, SPECIFICALLY PROVIDE TIME LIMITATIONS WITHIN WHICH ACCRUED CLAIMS MUST BE FILED, OR BE FOREVER BARRED FROM CONSIDERATION THEREAFTER.

IN YOUR CASE, WHILE IT MAY BE THAT YOU FILED A CLAIM WITH AN AGENCY OF THE FEDERAL GOVERNMENT OTHER THAN THIS OFFICE, SUCH FILING DOES NOT SATISFY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, WHICH REQUIRES THAT EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE MUST BE RECEIVED HERE WITHIN 10 YEARS OF THE DATE SUCH CLAIM FIRST ACCRUED OR BE FOREVER BARRED.

SINCE THE RECORD SHOWS THAT THE LAST MONTH THAT A PROPER ALLOTMENT COULD HAVE BEEN PAID TO YOU WAS JULY 1949, ANY CLAIM YOU MAY HAVE HAD AS AN ALLOTTEE ACCRUED NO LATER THAN THE LAST DAY OF THAT MONTH. HENCE, IT WAS NECESSARY FOR THIS OFFICE TO HAVE RECEIVED SUCH CLAIM NO LATER THAN JULY 31, 1959, IN ORDER TO AVOID THE BAR OF THE 1940 ACT. OUR FILE SHOWS THAT YOUR CLAIM FOR AN ALLOTMENT WAS FIRST RECEIVED HERE MARCH 18, 1965, MORE THAN 15 YEARS AFTER THE LAST MONTH IN WHICH WHATEVER ENTITLEMENT YOU MAY HAVE HAD ACCRUED.

WE TRUST YOU NOW UNDERSTAND WHY WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM. ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.