B-134812, APR. 2, 1958

B-134812: Apr 2, 1958

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WHICH WAS DISALLOWED IN OUR OFFICE SETTLEMENT OF OCTOBER 2. ASIDE FROM THE GENERAL ALLEGATION THAT THERE WAS NO "GENTLEMEN'S AGREEMENT" THAT THE GUARDS WOULD REPORT FOR WORK THIRTY MINUTES EARLY. THAT THE PREVAILING PRACTICE REGARDING THE TYPE WORK YOU ARE DOING IS CONTRARY TO THAT REPORTED. THAT FAILURE TO MAKE RECOMPENSE FOR THE EXTRA THIRTY MINUTES IS IN VIOLATION OF EXISTING REGULATIONS. YOU ENCLOSED WITH YOUR REQUEST FOR REVIEW PHOTOSTATIC COPIES OF COMMUNICATIONS FROM OFFICIALS AT THE MANILA AIR STATION WHICH TEND TO SUPPORT YOUR CONTENTION THAT IN FACT GUARDS WERE SUBJECT TO DISCIPLINARY ACTION IF THEY FAILED TO REPORT THIRTY MINUTES EARLY. WHICH WAS SUBMITTED WITH YOUR REQUEST FOR REVIEW.

B-134812, APR. 2, 1958

TO MR. PEDRO PASCUA:

YOUR LETTER OF DECEMBER 2, 1957, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR COMPENSATION BELIEVED TO BE DUE YOU FOR OVERTIME SERVICES RENDERED AS A CIVILIAN GUARD, CIVILIAN GUARD SECTION, OFFICE OF THE PROVOST MARSHAL, MANILA AIR STATION, WHICH WAS DISALLOWED IN OUR OFFICE SETTLEMENT OF OCTOBER 2, 1957.

ASIDE FROM THE GENERAL ALLEGATION THAT THERE WAS NO "GENTLEMEN'S AGREEMENT" THAT THE GUARDS WOULD REPORT FOR WORK THIRTY MINUTES EARLY, THAT THE PREVAILING PRACTICE REGARDING THE TYPE WORK YOU ARE DOING IS CONTRARY TO THAT REPORTED, AND THAT FAILURE TO MAKE RECOMPENSE FOR THE EXTRA THIRTY MINUTES IS IN VIOLATION OF EXISTING REGULATIONS, YOU ENCLOSED WITH YOUR REQUEST FOR REVIEW PHOTOSTATIC COPIES OF COMMUNICATIONS FROM OFFICIALS AT THE MANILA AIR STATION WHICH TEND TO SUPPORT YOUR CONTENTION THAT IN FACT GUARDS WERE SUBJECT TO DISCIPLINARY ACTION IF THEY FAILED TO REPORT THIRTY MINUTES EARLY.

IN OUR REQUEST FOR A REPORT FROM THE DEPARTMENT OF THE AIR FORCE, WE ENCLOSED COPIES OF THE AFOREMENTIONED COMMUNICATIONS THAT APPEARED TO BE IN CONFLICT WITH THE AIR FORCE'S PREVIOUS REPORT AND REQUESTED THAT THE SEEMING DISCREPANCIES BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE WHICH APPEARED IN THE ENCLOSED COMMUNICATIONS BE EXPLAINED.

ON MARCH 10, 1958, THE CHIEF OF THE SETTLEMENTS DIVISION OF THE AIR FORCE ACCOUNTING AND FINANCE CENTER FURNISHED THE REQUESTED REPORT. THAT REPORT AFFIRMED THE PREVIOUS REPORT THAT LOCAL CUSTOM DOES NOT RECOGNIZE THE "INCIDENTAL" WAITING PERIOD REQUIREMENT FOR SECURITY GUARDS AS PART OF THE ESTABLISHED TOUR OF DUTY FOR PAY PURPOSES. ALSO, THAT REPORT STATED THAT THE LETTER ADDRESSED TO MR. GREGONIO A. GOMEZ, DATED JANUARY 25, 1957, WHICH WAS SUBMITTED WITH YOUR REQUEST FOR REVIEW, DOES NOT INDICATE THAT DISCIPLINARY ACTION WAS BEING TAKEN FOR HIS FAILURE TO REPORT EARLY BUT RATHER BECAUSE OF HIS REPORTING UNDER THE INFLUENCE OF ALCOHOL. REGARDING THE COMMUNICATION ENCLOSED WITH YOUR REQUEST FOR REVIEW FROM THE PROVOST MARSHAL, MANILA AIR STATION DATED JUNE 7, 1957, THE ADMINISTRATIVE REPORT STATED THAT THAT COMMUNICATION WAS WITHDRAWN AND SUPERSEDED BY SECOND ENDORSEMENT DATED JULY 1, 1957, TO LETTER FROM THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, OF MAY 28, 1957. THAT WITHDRAWAL WAS BASED ON THE INABILITY OF THE PROVOST MARSHAL TO PROVIDE ANY EVIDENCE THAT DISCIPLINARY ACTION HAD EVER BEEN TAKEN AGAINST ANY GUARD WHO MAY HAVE FAILED TO REPORT EARLY. IT WOULD SEEM THAT THE WITHDRAWAL WAS CORRECTLY PREDICATED ON THE BASIS MENTIONED. MOREOVER, AN INTERVIEW WAS HELD WITH THE PROVOST MARSHAL OF THE MANILA AIR STATION AND HIS SECURITY GUARD SUPERVISOR AND BOTH REITERATED THAT DURING THEIR TOURS OF DUTY IN THE MANILA AIR STATION THEY HAD NEVER TAKEN ANY DISCIPLINARY ACTION AGAINST ANY SECURITY GUARD FOR FAILING TO REPORT PRIOR TO THE BEGINNING OF HIS OFFICIAL SHIFT.

ADMITTEDLY, THE AIR FORCE REGULATIONS FOUND AT AFM 40-1, AFH 2 SEC. 2, PAR. 7, PROVIDES THAT WHEN IT IS NECESSARY FOR CIVILIAN GUARDS TO REPORT TO A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTIONS, AND UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR RESPECTIVE POSTS, AND SUCH INCIDENTAL DUTIES CANNOT BE MADE A PART OF THE EIGHT HOUR TOUR OF DUTY, THEY WILL BE CONSIDERED IN A PAY STATUS UNTIL THEY CHECK OUT AT THE EXPIRATION OF THE SHIFT. HOWEVER, THE SAME REGULATION PROVIDES AT AFM 40- 1, AFH 2.1, PAR. 1A, THAT:

"* * * EMPLOYEES AT AIR FORCE INSTALLATIONS OUTSIDE THE UNITED STATES WHO ARE PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO LOCAL CUSTOM OR LOCAL LAW ARE EXCLUDED FROM THE PROVISIONS OF THIS CHAPTER.'

CONSEQUENTLY, AS THE ADMINISTRATIVE REPORT STATES THAT YOUR TOUR OF DUTY CORRESPONDS WITH LOCAL CUSTOM, AND THAT YOU ARE PAID AT NATIVE WAGE RATES, THE CITED PROVISION PROVIDING FOR "PAY STATUS" DURING THE INCIDENTAL PERIODS IS NOT APPLICABLE IN YOUR CASE.

THEREFORE, IN VIEW OF THE FACT THAT THE SEEMINGLY INCONSISTENT EVIDENCE SUBMITTED BY YOU HAS BEEN SATISFACTORILY EXPLAINED AND THE SUBSEQUENT REPORT AGAIN RECOMMENDS AGAINST PAYMENT OF YOUR CLAIM BECAUSE OF THE RELEVANT PREVAILING PRACTICES IN THE PHILIPPINE ISLANDS, WE FIND THAT OUR PREVIOUS DISALLOWANCE WAS CORRECT AND IS SUSTAINED.

WE RECOGNIZE THAT THERE IS A DIFFERENCE OF OPINION BETWEEN YOU AND THE DEPARTMENT OF THE AIR FORCE CONCERNING MANY FACTUAL MATTERS RELEVANT TO YOUR CLAIM. HOWEVER, ON DISPUTED QUESTIONS OF FACT BETWEEN THE CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE ESTABLISHED RULE OF THE GENERAL ACCOUNTING OFFICE IS TO ACCEPT STATEMENTS OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE FACTS AS ADMINISTRATIVELY REPORTED. 31 COMP. GEN. 288. AS THE EVIDENCE SUBMITTED BY YOU IN REBUTTAL TO THE ADMINISTRATIVE REPORT HAS BEEN EXPLAINED, OUR OFFICE MUST ACCEPT THE FACTS REPORTED BY THE AIR FORCE AS CONTROLLING.