B-135801, MAY 15, 1958

B-135801, MAY 15, 1958

TO MR. CHARLES J. VAN HORN:

YOUR LETTER OF FEBRUARY 25, 1958, TO THE ATTORNEY GENERAL OF THE UNITED STATES, HAS BEEN FORWARDED TO OUR OFFICE AS A REQUEST FOR RECONSIDERATION OF THAT PORTION OF OUR CLAIMS DIVISION SETTLEMENT DATED AUGUST 15, 1949, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PAY FOR THE PERIOD FEBRUARY 14 TO MARCH 9, 1945, AS A CONTRACT EMPLOYEE OF THE ARMY.

REGARDING YOUR REQUEST OF THE ATTORNEY GENERAL TO HAVE THE QUESTION REVIEWED BY A COMPETENT, IMPARTIAL AUTHORITY, PRESUMABLY OUTSIDE THE DEPARTMENT OF THE ARMY, YOU ARE ADVISED THAT THE UNITED STATES GENERAL ACCOUNTING OFFICE AS ESTABLISHED BY LAW IS JUST SUCH AN AUTHORITY. IT IS A PART OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT AND IT IS ENTIRELY INDEPENDENT OF THE DEPARTMENT OF THE ARMY.

YOUR CLAIM ARISES OUT OF AN EMPLOYMENT CONTRACT WHICH BECAME EFFECTIVE AUGUST 17, 1944, AND UNDER WHICH YOU WERE EMPLOYED AS A "MASTER B" FOR SERVICE IN THE EUROPEAN THEATRE OF OPERATION WITH THE TRANSPORTATION CORPS OF THE ARMY. PERTINENT PORTIONS OF THE CONTRACT ARE AS FOLLOWS:

"1. * * * THE EMPLOYEE AGREES TO SERVE AT THE MINIMUM RATE OF $2562.00 DOLLARS PER ANNUM WHICH SHALL BE CONSIDERED THE BASE WAGES OF THE EMPLOYEE AND IN ADDITION THERETO THE EMPLOYEE SHALL BE PAID ADDITIONAL INCREASES IN WAGES AS MAY BE PRESCRIBED BY COMPETENT WAR DEPARTMENT AUTHORITY FOR AND ON ACCOUNT OF THE WAR RISK BONUSES WHICH ARE PREDICATED UPON TRANSIT OF AREAS OF RISK AND THE PREVAILING WAGE PRACTICE OF THE MARITIME INDUSTRY WHICH THE WAR DEPARTMENT IS COMMITTED TO FOLLOW AS NEARLY AS IS PRACTICABLE UNDER ITS POLICY OF CONFORMING WITH THE PREVAILING MARITIME PRACTICE. IT IS HEREBY AGREED AND UNDERSTOOD THAT IN ACCORD WITH THE PREVAILING MARITIME WAGE PRACTICES AS PRESENTLY APPROVED AND ADOPTED BY THE WAR DEPARTMENT FOR THE AREA TO WHICH THE EMPLOYEE IS ASSIGNED, THE EMPLOYEE WILL BE PAID IN ADDITION TO THE BASE WAGES STIPULATED ABOVE A FLAT INCREASE IN WAGES OF ONE HUNDRED PERCENT (100 PERCENT) TO BE PAID UPON ARRIVAL OF THE EMPLOYEE AT THE EUROPEAN T.O. -----, THE ASSIGNED POST OF DUTY OR UPON DEPARTURE OF THE VESSEL TO BE DELIVERED TO THE ASSIGNED POST OF DUTY.

"7. THE EMPLOYEE SHALL BE FURNISHED MEDICAL AND SURGICAL CARE AT THE EXPENSE OF THE GOVERNMENT FOR ILLNESS OR INJURY SUSTAINED WHILE IN LINE OF DUTY NOT RESULTING FROM THE EMPLOYEE'S OWN MISCONDUCT OR DELINQUENCY. THE EVENT OF ILLNESS OR INJURY OCCASIONED BY HIS EMPLOYMENT BUT NOT DUE TO THE EMPLOYEES MISCONDUCT, THE BASE WAGES OF THE EMPLOYEE WILL CONTINUE DURING THE PERIOD OF SUCH INCAPACITY. ANY SUCH PAYMENTS MADE SHALL BE DEEMED PAYMENTS ON ACCOUNT OF OR IN FULL, AS THE CASE MAY BE, OF ANY OTHER COMPENSATION FOR SICK LEAVE TO WHICH THE EMPLOYEE MIGHT BE ENTITLED ON ACCOUNT OF SUCH INJURY OR ILLNESS. * * *"

IN YOUR CLAIM, YOU STATED THAT YOU WERE HOSPITALIZED IN AN ARMY HOSPITAL IN ENGLAND FROM FEBRUARY 14 TO MARCH 9, 1945, AND THAT YOU WERE PAID FOR THIS PERIOD ONLY AT THE LOWER RATE PROVIDED IN THE CONTRACT WITHOUT BENEFIT OF THE ADDITIONAL 100 PERCENT. YOU CONTEND THAT THIS WAS ERRONEOUS AND THAT THE TERM "BASE WAGES" SHOULD BE CONSTRUED TO INCLUDE THE ADDITIONAL 100 PERCENT PROVIDED FOR IN THE CONTRACT. OUR CLAIMS DIVISION DISALLOWED THE CLAIM ON THE BASIS THAT THE LOWER RATE ($2,56 PER YEAR) WAS SPECIFICALLY DESIGNATED IN THE CONTRACT AS "BASE WAGES" AND THAT, UNDER SECTION 7 OF THE CONTRACT QUOTED IN PART ABOVE, YOU WERE ENTITLED ONLY TO "BASE WAGES" DURING THE PERIOD OF HOSPITALIZATION.

THE TERMS OF THE CONTRACT MUST GOVERN. THE FIGURE, $2,562 PER YEAR, IS ESTABLISHED IN SECTION 1 OF THE CONTRACT AS "BASE WAGES" AND, IN THE SAME SECTION, ADDITIONAL WAGES ARE AUTHORIZED TO BE PAID "FOR AND ON ACCOUNT OF THE WAR RISK BONUSES WHICH ARE PREDICATED UPON TRANSIT OF AREAS OF RISK AND THE PREVAILING WAGE PRACTICE OF THE MARITIME INDUSTRY.' THE SECTION THEN AUTHORIZES PAYMENT "IN ADDITION TO THE BASE WAGES" OF A FLAT "INCREASE IN WAGES" OF 100 PERCENT UNDER THE CONDITIONS SET FORTH IN THE CONTRACT AND IN ACCORD WITH PREVAILING MARITIME WAGE PRACTICES. SECTION 7 OF THE CONTRACT PROVIDES FOR PAYMENT OF "BASE WAGES" DURING HOSPITALIZATION AND OUR VIEW IS THAT THE TERM AS USED IN SECTION 7 WAS INTENDED TO HAVE THE MEANING SET FORTH FOR IT IN SECTION 1, THAT IS, $2,562 PER YEAR.

THEREFORE, THE PREVIOUS SETTLEMENT OF THE CLAIMS DIVISION DISALLOWING YOUR CLAIM IS AFFIRMED. THE PHOTOSTATIC COPY OF THE CONTRACT IS RETURNED AS REQUESTED IN YOUR LETTER TO THE ATTORNEY GENERAL.