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B-131281, JUL. 19, 1957

B-131281 Jul 19, 1957
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WHICH AMOUNT WAS DEDUCTED AS OUTSIDE EARNINGS FROM THE BACK PAY FOUND DUE YOU UNDER THE PROVISIONS OF THE ACT OF JUNE 10. YOU SAY YOU WILL ACCEPT THE $150.78 AS A COMPROMISE SETTLEMENT FOR THE OVERTIME YOU COULD HAVE EARNED HAD YOU NOT BEEN IMPROPERLY SEPARATED. SINCE THE ADMINISTRATIVE REPORT STATES THAT THE TOUR OF DUTY AT BOSTON AND NEW YORK CHEMICAL DISTRICTS PRIOR TO AND DURING THE PERIOD OF SEPARATION WAS 8 HOURS A DAY. OUR OFFICE WOULD NOT BE JUSTIFIED IN ASSUMING THAT OVERTIME COMPENSATION WOULD HAVE BEEN EARNED BY YOU HAD YOU NOT BEEN SEPARATED FROM THE POSITION WITH THE ARMY CHEMICAL PROCUREMENT DISTRICT.'. YOU SAY THAT THE INFERENCE BY THE NEW YORK DISTRICT THAT OVERTIME WOULD NOT BE AUTHORIZED PRIOR TO AND DURING THE PERIOD OF YOUR SEPARATION IS MISLEADING AND CONTRARY TO FACT.

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B-131281, JUL. 19, 1957

TO MR. MORRIS D. BUDNICK:

YOUR LETTER OF JUNE 2, 1957, REFERS TO OUR DECISION OF MAY 22, 1957, B- 131281, TO YOU, AND ASKS THAT THE NEW YORK CHEMICAL PROCUREMENT DISTRICT BE REQUESTED TO SEND YOU A CHECK FOR $150.78, REPRESENTING THE OVERTIME COMPENSATION EARNED BY YOU IN ANOTHER GOVERNMENT POSITION DURING PERIOD OF UNJUSTIFIED AND UNWARRANTED SUSPENSION, WHICH AMOUNT WAS DEDUCTED AS OUTSIDE EARNINGS FROM THE BACK PAY FOUND DUE YOU UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354. YOU SAY YOU WILL ACCEPT THE $150.78 AS A COMPROMISE SETTLEMENT FOR THE OVERTIME YOU COULD HAVE EARNED HAD YOU NOT BEEN IMPROPERLY SEPARATED.

YOU TAKE ISSUE WITH THE FOLLOWING STATEMENT MADE IN OUR DECISION OF MAY 22, WHICH READS AS FOLLOWS:

"MOREOVER, SINCE THE ADMINISTRATIVE REPORT STATES THAT THE TOUR OF DUTY AT BOSTON AND NEW YORK CHEMICAL DISTRICTS PRIOR TO AND DURING THE PERIOD OF SEPARATION WAS 8 HOURS A DAY, 5 DAYS A WEEK, WITH NO REGULARLY SCHEDULED OVERTIME, OUR OFFICE WOULD NOT BE JUSTIFIED IN ASSUMING THAT OVERTIME COMPENSATION WOULD HAVE BEEN EARNED BY YOU HAD YOU NOT BEEN SEPARATED FROM THE POSITION WITH THE ARMY CHEMICAL PROCUREMENT DISTRICT.'

YOU SAY THAT THE INFERENCE BY THE NEW YORK DISTRICT THAT OVERTIME WOULD NOT BE AUTHORIZED PRIOR TO AND DURING THE PERIOD OF YOUR SEPARATION IS MISLEADING AND CONTRARY TO FACT. YOU ALSO SAY THAT PRIOR TO YOUR SEPARATION YOU PERSONALLY WORKED OVERTIME WHENEVER THE SITUATION DEMANDED AND THAT THE TIME CARD REPORTS, WHICH ARE UNAVAILABLE TO YOU, WILL SUBSTANTIATE SUCH OVERTIME AND PROVE THAT PERSONNEL OF THE BOSTON AND NEW YORK DISTRICTS WORKED OVERTIME UNDER SIMILAR CONDITIONS.

IN OUR DECISION OF MAY 22 WE DID NOT SAY THAT PRIOR TO YOUR SEPARATION YOU DID NOT WORK OVERTIME AS REQUIRED. WHAT WE DID SAY WAS THAT YOU, AT THE TIME OF YOUR SEPARATION, WERE NOT PERFORMING REGULARLY SCHEDULED OVERTIME. THAT MEANS YOU WERE NOT AUTHORIZED TO WORK A SPECIFIC OR FIXED AMOUNT OF OVERTIME EACH PAY PERIOD. IN THE ABSENCE OF REGULARLY SCHEDULED OVERTIME, IN THE POSITION FROM YOU WERE SEPARATED, BEING IN FORCE AND EFFECT ON THE DATE OF SEPARATION, OR A SPECIFIC SHOWING AS TO THE AMOUNT OF OVERTIME YOU WOULD HAVE PERFORMED HAD YOU NOT BEEN IMPROPERLY SEPARATED NO BASIS EXISTS UNDER LAW TO AUTHORIZE PAYMENT OF OVERTIME IN COMPUTING YOUR BACK PAY.

ACCORDINGLY, UPON THE EXISTING RECORD OUR DECISION OF MAY 22, 1957, B- 131281, TO YOU, MUST BE AND IS SUSTAINED.

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