B-135182, APR. 3, 1958

B-135182: Apr 3, 1958

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YOUR LETTER CONCERNS A CASE WHICH WAS SETTLED BY OUR OFFICE OCTOBER 2. A COPY THEREOF IS ENCLOSED SINCE IT MAY BE THAT YOU DID NOT RECEIVE THE ORIGINAL. - WHICH WAS ADDRESSED TO YOU AT THE MANILA AIR STATION. IN REGARD TO YOUR CLAIM YOU ARE ADVISED THAT IT IS IDENTICAL TO THE CLAIMS OF MANY OF YOUR COWORKERS. THAT IS. THEIR CLAIMS WERE DISALLOWED UPON THE SAME GROUNDS AS YOURS. WHICH ARE SET FORTH IN THE ENCLOSED SETTLEMENT LETTER TO YOU OF OCTOBER 2. WE HAVE REVIEWED THE ENTIRE SITUATION BOTH FROM A FACTUAL ASPECT AND FROM THE STANDPOINT OF THE APPLICABLE LAW AND REGULATIONS. WAS OBSERVED BY THE VARIOUS GOVERNMENTAL AGENCIES AND IN THE MAJORITY OF THE LOCAL BUSINESS ESTABLISHMENTS.

B-135182, APR. 3, 1958

TO MR. VICTOR V. MENDOZA:

IN YOUR LETTER OF JANUARY 23, 1958, YOU PRESENT "CLAIM" FOR ADDITIONAL COMPENSATION ALLEGEDLY DUE YOU FOR CERTAIN DUTIES YOU PERFORMED AS A SECURITY GUARD UNDER THE PROVOST MARSHAL'S OFFICE, U.S. ARMY, CAMP CAVITE, IN THE PHILIPPINES, DURING THE PERIOD JUNE 9, 1947, TO JANUARY 18, 1954.

YOUR LETTER CONCERNS A CASE WHICH WAS SETTLED BY OUR OFFICE OCTOBER 2, 1957. HOWEVER, AS YOUR PRESENT LETTER DOES NOT MENTION THAT SETTLEMENT, A COPY THEREOF IS ENCLOSED SINCE IT MAY BE THAT YOU DID NOT RECEIVE THE ORIGINAL--- WHICH WAS ADDRESSED TO YOU AT THE MANILA AIR STATION, OFFICE OF PROVOST MARSHAL.

IN REGARD TO YOUR CLAIM YOU ARE ADVISED THAT IT IS IDENTICAL TO THE CLAIMS OF MANY OF YOUR COWORKERS, THAT IS, CIVILIAN GUARDS UNDER THE SUPERVISION OF THE OFFICE OF PROVOST MARSHAL. THEIR CLAIMS WERE DISALLOWED UPON THE SAME GROUNDS AS YOURS, WHICH ARE SET FORTH IN THE ENCLOSED SETTLEMENT LETTER TO YOU OF OCTOBER 2, 1957. RECENTLY, WE HAVE REVIEWED THE ENTIRE SITUATION BOTH FROM A FACTUAL ASPECT AND FROM THE STANDPOINT OF THE APPLICABLE LAW AND REGULATIONS.

THE SETTLEMENT REFERS TO THE "PREVAILING PRACTICE" IN THE AREA--- WHICH, THE RECORD SHOWS, WAS OBSERVED BY THE VARIOUS GOVERNMENTAL AGENCIES AND IN THE MAJORITY OF THE LOCAL BUSINESS ESTABLISHMENTS--- WHEREBY GUARD- EMPLOYEES REPORTED FOR INSTRUCTIONS AND CERTAIN PRELIMINARY DUTIES PRIOR TO THE SPECIFIC HOUR BEGINNING THEIR SCHEDULED TOUR OF DUTY. THE AIR FORCE REGULATION, AFM 40-1, AFH2, SECTION 2, PARAGRAPH 7, TO WHICH YOU REFER, PROVIDES THAT WHEN IT IS NECESSARY FOR CIVILIAN GUARDS TO REPORT TO A CENTRAL LOCATION TO CHECK IN, TO RECEIVE INSTRUCTIONS, TO UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR RESPECTIVE POSTS, AND TO PERFORM INCIDENTAL DUTIES WHICH CANNOT BE MADE A PART OF THE REGULAR EIGHT HOUR TOUR OF DUTY, THEY WILL BE CONSIDERED IN A PAY STATUS UNTIL THEY CHECK OUT AT THE END OF THE SHIFT. HOWEVER, THE SAME REGULATION, AFM 40-1, AFH 2.1, PARAGRAPH 1A, PROVIDES 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 RECORD CLEARLY SHOWS CIVILIAN GUARDS OF THE PROVOST MARSHAL, MANILA AIR STATION, HAD TOURS OF DUTY CORRESPONDING TO THE LOCAL CUSTOM IN THE AREA AND WERE PAID AT NATIVE WAGE RATES, THE PROVISIONS OF AFM 40-1, AFH 2, SEC. 2, PAR. 7, CONCERNING PAY STATUS DO NOT APPEAR APPLICABLE TO THE INCIDENTAL 30-MINUTE PERIODS ON WHICH YOU BASE YOUR CLAIM.

THEREFORE, UPON THE RECORD IN YOUR CASE AND THE FACTS DEVELOPED IN CLAIMS IDENTICAL TO YOURS, WE MUST CONCLUDE THAT YOUR CLAIM PROPERLY WAS DISALLOWED.