B-126230, MAR. 27, 1956

B-126230: Mar 27, 1956

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WERE ESSENTIALLY THOSE OF HER PRESENT POSITION. WAS PREDICATED AS THE RESULT OF A CIVIL SERVICE COMMISSION CLASSIFICATION SURVEY. IT WAS ADMINISTRATIVELY RECOMMENDED THAT AUGUST 8. THE ADMINISTRATIVE DETERMINATION WAS SUPPORTED BY A POSITION REPORT DATED SEPTEMBER 20. HAVE BEEN DESTROYED AND THAT THE DETERMINATION SO FAR AS IT RELATES TO THAT PERIOD ADMITTEDLY IS SPECULATIVE. THE DETERMINATION APPARENTLY IS BASED UPON THE PROPOSITION SET FORTH IN THE POSITION REPORT. "THAT THE DATE ON WHICH A CHANGE IN DUTIES IS ESTABLISHED SHOULD BE OFFICIALLY DOCUMENTED AND SUPPORTED BY EVIDENCE WHICH INDICATES BEYOND ALL REASONABLE DOUBT THAT SUCH DATE CAN BE USED FOR ALL PURPOSES.'. THAT VIEW UNDOUBTEDLY IS TRUE IN A NORMAL SITUATION BUT IN CASES WHERE A STATUTORY BENEFIT IS CONFERRED UPON AN EMPLOYEE.

B-126230, MAR. 27, 1956

TO HONORABLE HARVEY V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

IN A LETTER OF JANUARY 24, 1956, TO THE CLAIMS DIVISION OF OUR OFFICE, THE CHIEF BENEFITS DIRECTOR, VETERANS ADMINISTRATION, MADE INQUIRY AS TO A SETTLEMENT OF JANUARY 6, 1956, WHICH ALLOWED MISS FRIEDA D. SCHMIDT, AN EMPLOYEE OF THE VETERANS ADMINISTRATION REGIONAL OFFICE, BROOKLYN, NEW YORK, ADDITIONAL COMPENSATION IN THE AMOUNT OF $65.40 FOR THE PERIOD MARCH 27, 1955, TO DECEMBER 31, 1955, BECAUSE OF A LONGEVITY STEP-INCREASE EFFECTIVE MARCH 27, 1955.

MISS SCHMIDT'S CLAIM, CONSIDERED UNDER AUTHORITY OF 31 U.S.C. 71, TURNED UPON THE FACTUAL QUESTION OF WHETHER SHE HAD NOT THE REQUIREMENT OF TEN YEARS' SERVICE IN HER PRESENT POSITION (5 U.S.C. 1123 (B) (6) ).

SUPPORTED BY AFFIDAVITS AND STATEMENTS OF EMPLOYEES UNDER WHOM SHE WORKED, MISS SCHMIDT CONTENDED THAT THE DUTIES ASSIGNED TO HER SINCE MARCH 16, 1945, WHEN SHE TRANSFERRED TO THE VETERANS ADMINISTRATION, WERE ESSENTIALLY THOSE OF HER PRESENT POSITION, PARTICULARLY THE DUTY UPON WHICH A REALLOCATION, EFFECTIVE OCTOBER 30, 1949, WAS PREDICATED AS THE RESULT OF A CIVIL SERVICE COMMISSION CLASSIFICATION SURVEY, HOWEVER, IT WAS ADMINISTRATIVELY RECOMMENDED THAT AUGUST 8, 1948, BE CONSIDERED THE BEGINNING DATE FOR THE AGGREGATE PERIOD OF MISS SCHMIDT'S SERVICE IN HER PRESENT POSITION.

THE ADMINISTRATIVE DETERMINATION WAS SUPPORTED BY A POSITION REPORT DATED SEPTEMBER 20, 1955, FROM WHICH IT APPEARS THAT POSITION DESCRIPTIONS COVERING THE PERIOD MARCH 16, 1945, TO MAY 28, 1949, HAVE BEEN DESTROYED AND THAT THE DETERMINATION SO FAR AS IT RELATES TO THAT PERIOD ADMITTEDLY IS SPECULATIVE.

THE DETERMINATION APPARENTLY IS BASED UPON THE PROPOSITION SET FORTH IN THE POSITION REPORT, VIZ,"THAT THE DATE ON WHICH A CHANGE IN DUTIES IS ESTABLISHED SHOULD BE OFFICIALLY DOCUMENTED AND SUPPORTED BY EVIDENCE WHICH INDICATES BEYOND ALL REASONABLE DOUBT THAT SUCH DATE CAN BE USED FOR ALL PURPOSES.' THAT VIEW UNDOUBTEDLY IS TRUE IN A NORMAL SITUATION BUT IN CASES WHERE A STATUTORY BENEFIT IS CONFERRED UPON AN EMPLOYEE, HIS ENTITLEMENT TO THAT BENEFIT CANNOT BE DEFEATED BECAUSE OFFICIAL RECORDS WHICH WOULD AFFIRM OR DENY HIS RIGHT ARE LOST OR DESTROYED. THE WAY IS THEN OPEN FOR A CLAIMANT TO ESTABLISH HIS CASE BY OTHER EVIDENCE. SEE PARAGRAPH 3 OF SYLLABUS, 23 COMP. GEN. 907.

WHILE AS STATED IN OUR DECISION OF AUGUST 5, 1955, B-123846, TO YOU, THE ADMINISTRATIVE DETERMINATION OF FACTS IN CASES SUCH AS THESE GENERALLY IS ACCEPTED AS CONTROLLING, SECTION 236 REVISED STATUTES, 31 U.S.C. 71, PERTAINING TO OUR CLAIMS SETTLEMENT FUNCTION, NECESSARILY REQUIRES AN EXERCISE OF DISCRETION IN WEIGHING THE EVIDENCE FURNISHED BY A CLAIMANT IN THOSE CASES WHERE OFFICIAL RECORDS ARE NOT COMPLETE. 13 COMP. GEN. 140; 22 ID. 269. THE EVIDENCE FURNISHED BY MISS SCHMIDT IN THIS CASE APPEARS TO WARRANT THE ACTION TAKEN. HOWEVER, SINCE EACH CLAIM MUST BE SETTLED ON ITS MERITS, OUR ACTION IN THE SCHMIDT CASE SHOULD NOT BE VIEWED AS A PRECEDENT.

OUR DECISION OF AUGUST 5, 1955, B-123846, TO YOU, IS NOT CONSTRUED TO BE IN CONFLICT WITH THE FOREGOING.