B-183107, APR 30, 1975, 54 COMP GEN 934

B-183107, APR 30, 1975, 54 COMP GEN 934

COMPENSATION - MISSING, INTERNED, CAPTURED, ETC., EMPLOYEES - OVERTIME - COMPUTATION DEPARTMENT OF THE NAVY HAS AUTHORITY UNDER MISSING PERSONS ACT, 5 U.S.C. 5561 ET SEQ., TO PAY PAY AND ALLOWANCES, INCLUDING OVERTIME COMPENSATION, RETROACTIVELY TO CIVILIAN EMPLOYEE WHICH HE WOULD OTHERWISE HAVE RECEIVED BUT FOR HIS INTERNMENT AS POW IN VIETNAM. THE PROPER AMOUNT OF OVERTIME COMPENSATION IS DETERMINED BY COMPUTING THE AVERAGE AMOUNT OF OVERTIME PERFORMED BY OTHER EMPLOYEES SIMILARLY SITUATED DURING THE PERIOD THE EMPLOYEE WAS INTERNED. IN THIS CASE, OVERTIME MUST TERMINATE ON THE DATE WHEN THE OFFICE WHERE THE CAPTURED EMPLOYEE HAD BEEN ASSIGNED WAS DISESTABLISHED, UNLESS OTHER EMPLOYEES FORMERLY ASSIGNED TO SUCH OFFICE WERE REASSIGNED TO OTHER OFFICES WHERE THEY CONTINUED TO PERFORM OVERTIME DUTY.

IN THE MATTER OF OVERTIME COMPENSATION WHILE HELD AS PRISONER OF WAR, APRIL 30, 1975:

THIS MATTER CONCERNS AN INQUIRY ON BEHALF OF LAWRENCE J. STARK, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, WHO HAS CLAIMED OVERTIME COMPENSATION FOR THE PERIOD HE WAS HELD AS A PRISONER OF WAR IN VIETNAM.

THE ADMINISTRATIVE RECORD INDICATES THAT DURING THE 4-MONTH PERIOD PRIOR TO HIS CAPTURE IN EARLY FEBRUARY 1968, MR. STARK PERFORMED AND WAS PAID FOR OVERTIME DUTY AVERAGING 62 HOURS PER PAY PERIOD. PURSUANT TO THE MISSING PERSONS ACT, AS AMENDED AND CODIFIED, 5 U.S.C. SEC. 5561, ET SEQ. (1970), MR. STARK HAS RECEIVED THE BASIC COMPENSATION OF HIS GRADE GS-12 POSITION FOR THE PERIOD OF HIS INTERNMENT. HE HAS NOT, HOWEVER, RECEIVED ANY ADDITIONAL COMPENSATION FOR OVERTIME DUTY THAT HE WOULD HAVE PERFORMED BUT FOR HIS CAPTURE BY HOSTILE FORCES.

ADMINISTRATIVE ACTION DENYING ANY OVERTIME COMPENSATION WAS APPARENTLY BASED ON THE INFORMAL VIEWS OF AN OFFICIAL IN THIS OFFICE WHO ADVISED THAT THE CITED STATUTE DID NOT AUTHORIZE OVERTIME COMPENSATION FOR PERIODS WHEN AN EMPLOYEE WAS MISSING. WHILE NORMALLY WE WOULD REGARD AN ADMINISTRATIVE SETTLEMENT OF AN EMPLOYEE'S ENTITLEMENTS UNDER THE MISSING PERSONS ACT AS FINAL, IN ACCORDANCE WITH 5 U.S.C. SEC. 5566(C), THE CONCLUSIVENESS OF SUCH DETERMINATIONS DOES NOT EXTEND TO DECISIONS AS TO WHETHER A PARTICULAR TYPE OF PAY OR ALLOWANCE IS PROPERLY INCLUDABLE UNDER THE ACT. 27 COMP. GEN. 205 (1947). IN THIS INSTANCE, THE DEPARTMENT OF THE NAVY HAS INDICATED THAT IT IS QUITE WILLING TO RECONSIDER ITS SETTLEMENT IF THIS OFFICE DETERMINES THAT ITS PREVIOUS INFORMAL ADVICE WAS ERRONEOUS. WE DO SO DETERMINE.

THE CITED STATUTE, AT 5 U.S.C. SEC. 5562(A) (1970) GENERALLY PROVIDES THAT EMPLOYEES IN A "MISSING STATUS," DEFINED TO INCLUDE A PERIOD WHEN "INTERNED IN A FOREIGN COUNTRY; OR CAPTURED *** BY A HOSTILE FORCE;", ARE ENTITLED TO RECEIVE THE SAME "PAY AND ALLOWANCES" TO WHICH THEY WERE ENTITLED AT THE TIME OF CAPTURE, OR THEREAFTER BY OPERATION OF LAW. THE TERM "PAY AND ALLOWANCES" IS DEFINED IN 5 U.S.C. SEC. 5561(6) (1970), WHICH PROVIDES IN PERTINENT PART:

(6) "PAY AND ALLOWANCES" MEANS -

(A) BASIC PAY;

(B) SPECIAL PAY;

(C) INCENTIVE PAY ***.

USUALLY THE ABOVE TERMS OCCUR IN THE CONTEXT OF PAY CATEGORIES FOR UNIFORMED MEMBERS OF THE MILITARY SERVICES. HOWEVER, THE STATUTORY HISTORY OF THE ACT INDICATES THAT FROM ORIGINAL ENACTMENT IN 1942 AND THROUGH MANY AMENDMENTS IT HAS ALWAYS APPLIED TO CIVILIAN EMPLOYEES ASSIGNED FOR DUTY OUTSIDE THE CONTINENTAL UNITED STATES. AMENDMENTS IN 1957 EXTENDED THE COVERAGE UNDER CERTAIN CONDITIONS TO CIVILIAN EMPLOYEES WHO BECOME MISSING WITHIN THE CONTINENTAL UNITED STATES.

AS ORIGINALLY ENACTED INTO LAW, THE ACT PROVIDED THAT A PERSON (CIVILIAN EMPLOYEE OR MILITARY MEMBER) WHO ENTERED A MISSING STATUS WAS ENTITLED DURING HIS OR HER ABSENCE TO "THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER ***." IN CONSTRUING THAT LANGUAGE WE HELD IN 22 COMP. GEN. 745 AT 750 (1943) THAT AMERICAN CIVILIAN EMPLOYEES OF THE OFFICE OF THE HIGH COMMISSIONER TO THE PHILIPPINE ISLANDS WHO WERE INTERNED OR HELD THERE DURING THE JAPANESE OCCUPATION WERE ENTITLED TO OVERTIME PAY (UNDER THE ACT OF DECEMBER 22, 1942, CH. 798, 56 STAT. 1068 (5 U.S.C. 29 (1946 ED.)) IF THE OFFICE OF HIGH COMMISSIONER, AFTER ITS REESTABLISHMENT IN THE UNITED STATES, WAS REGULARLY WORKING IN EXCESS OF 40 HOURS PER WEEK PURSUANT TO ADMINISTRATIVE ORDER ISSUED UNDER PREVAILING REGULATIONS OF THE PRESIDENT. SEE ALSO 22 COMP. GEN. 192 (1942) AND B- 140639, NOVEMBER 13, 1959, IN WHICH RETROACTIVE COMPUTATION OF FLYING PAY WAS AUTHORIZED, AND B-138025, DECEMBER 10, 1958, AUTHORIZING INCLUSION OF A TERRITORIAL COST OF LIVING ALLOWANCE.

BASED ON THE FOREGOING, WE CONCLUDE THAT UNDER 5 U.S.C. SEC. 5561, ET SEQ. (1970) THE DEPARTMENT OF THE NAVY HAS STATUTORY AUTHORITY TO PAY MR. STARK FOR OVERTIME WORK HE ORDINARILY WOULD HAVE PERFORMED DURING THE PERIOD OF HIS INTERNMENT AS PRISONER OF WAR, SINCE IMMEDIATELY PRIOR TO THE TIME HE ENTERED INTO A MISSING STATUS HIS EMPLOYING OFFICE HAD ADMINISTRATIVELY APPROVED AND PAID OVERTIME COMPENSATION TO HIM AND OTHER EMPLOYEES SIMILARLY SITUATED.

THE NUMBER OF OVERTIME HOURS FOR WHICH OVERTIME COMPENSATION IS PAYABLE TO MR. STARK MAY BE DETERMINED ACCORDING TO EITHER OF THE FOLLOWING METHODS. THE BEST AND MOST ACCURATE METHOD WOULD BE TO DETERMINE THE AMOUNT OF OVERTIME ACTUALLY PERFORMED BY THE EMPLOYEE WHO ASSUMED MR. STARK'S DUTIES AFTER HIS CAPTURE. IN THE ABSENCE OF RECORDS AND ADEQUATE INFORMATION TO USE THIS METHOD, THE AGENCY MAY CONSTRUCTIVELY DETERMINE MR. STARK'S OVERTIME ON THE BASIS OF THE AVERAGE NUMBER OF OVERTIME HOURS WORKED BY OTHER EMPLOYEES PERFORMING SIMILAR DUTIES IN THE SAME OFFICE WHERE MR. STARK WAS EMPLOYED. PAYROLL RECORDS SUBMITTED TO US BY THE AGENCY INDICATE THAT OTHER EMPLOYEES IN ADDITION TO MR. STARK RECEIVED OVERTIME COMPENSATION DURING SEVERAL PAY PERIODS PRIOR TO HIS CAPTURE. THE OVERTIME HOURS WORKED BY THESE SAME EMPLOYEES DURING THE PERIOD OF MR. STARK'S INTERNMENT MAY BE USED TO DETERMINE AN AVERAGE NUMBER OF OVERTIME HOURS PER PAY PERIOD FOR WHICH MR. STARK COULD BE PAID.

THE RECORD ALSO INDICATES THAT THE OFFICE TO WHICH MR. STARK WAS ASSIGNED AT THE TIME OF HIS CAPTURE (EARLY FEBRUARY 1968) WAS DISESTABLISHED ON JUNE 30, 1970. IT APPEARS THAT CONSTRUCTIVE OVERTIME SHOULD TERMINATE AS OF THAT DATE, UNLESS THERE IS SOME REASONABLE BASIS FOR CONCLUDING THAT MR. STARK WOULD HAVE BEEN REASSIGNED OR TRANSFERRED TO ANOTHER OFFICE WHERE HE WOULD HAVE CONTINUED TO PERFORM OVERTIME WORK. WHETHER OR NOT HE WOULD HAVE BEEN REASSIGNED TO SUCH AN OFFICE SHOULD BE DETERMINED BY LOOKING AT THE PERSONNEL ACTIONS THAT WERE TAKEN WITH RESPECT TO MOST OF THE OTHER EMPLOYEES FORMERLY ASSIGNED TO THE DISESTABLISHED OFFICE.

PAYMENT IN ACCORDANCE WITH THE FOREGOING DECISION MAY BE MADE TO MR. STARK AFTER THE NECESSARY INFORMATION IS DEVELOPED AND COMPUTATIONS MADE BY THE DEPARTMENT OF THE NAVY.