B-136161, MAY 27, 1958, 37 COMP. GEN. 797

B-136161: May 27, 1958

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REQUIRED BY REGULATIONS OR BY LAW" TO WEAR A UNIFORM WHICH IS A CONDITION PRECEDENT TO BEING FURNISHED A UNIFORM OR TO RECEIVING A UNIFORM ALLOWANCE IN LIEU THEREOF UNDER THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT. THAT THERE WAS NO REQUIREMENT FOR THE GUARDS OF THAT UNIT TO WEAR UNIFORMS. IS NOT TRUE AND THAT ALL ARMY AND AIR FORCE SECURITY GUARDS ARE REQUIRED TO WEAR UNIFORMS. YOU ALLEGED YOU PURCHASED FATIGUE AND KHAKI UNIFORMS AND UNIFORM SHOES AT YOUR OWN EXPENSE AND BY REASON THEREOF ARE ENTITLED TO RECEIVE BOTH INITIAL AND REPLACEMENT UNIFORM ALLOWANCES. AUTHORIZES THE HEAD OF A FEDERAL AGENCY TO WHICH AN APPROPRIATION IS MADE FOR UNIFORMS TO PROVIDE. UNIFORMS OR PAY AN ALLOWANCE IN LIEU OF UNIFORMS TO EMPLOYEES OF THE AGENCY "WHO ARE REQUIRED BY REGULATIONS OR BY LAW" (5 U.S.C. 2131) TO WEAR A PRESCRIBED UNIFORM.

B-136161, MAY 27, 1958, 37 COMP. GEN. 797

UNIFORMS - CIVILIAN PERSONNEL - REQUIREMENTS A FOREIGN NATIONAL EMPLOYEE WHO DOES NOT FURNISH EVIDENCE THAT THE COMMANDER IN THE OVERSEAS THEATER REQUIRED HIM TO WEAR A UNIFORM FOR SECURITY GUARD DUTY MAY NOT BE REGARDED AS HAVING BEEN ,REQUIRED BY REGULATIONS OR BY LAW" TO WEAR A UNIFORM WHICH IS A CONDITION PRECEDENT TO BEING FURNISHED A UNIFORM OR TO RECEIVING A UNIFORM ALLOWANCE IN LIEU THEREOF UNDER THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, 5 U.S.C. 2131- 2133.

TO ROSENDO B. JUSGADO, MAY 27, 1958:

YOUR LETTER OF APRIL 24, 1958, REQUESTS REVIEW OF OUR SETTLEMENT OF MARCH 11, 1958, WHICH DISALLOWED YOUR CLAIM FOR UNIFORM ALLOWANCE ALLEGEDLY DUE YOU AS A SECURITY GUARD, DEPARTMENT OF THE AIR FORCE, 2717 AMMUNITION SUPPLY SQUADRON, FOR THE PERIOD SEPTEMBER 5, 1954, THROUGH MAY 21, 1956.

YOU SAY THAT THE REPORT OF THE 2717TH AMMUNITION SUPPLY SQUADRON, THAT THERE WAS NO REQUIREMENT FOR THE GUARDS OF THAT UNIT TO WEAR UNIFORMS, IS NOT TRUE AND THAT ALL ARMY AND AIR FORCE SECURITY GUARDS ARE REQUIRED TO WEAR UNIFORMS. SPECIFICALLY, YOU ALLEGED YOU PURCHASED FATIGUE AND KHAKI UNIFORMS AND UNIFORM SHOES AT YOUR OWN EXPENSE AND BY REASON THEREOF ARE ENTITLED TO RECEIVE BOTH INITIAL AND REPLACEMENT UNIFORM ALLOWANCES. YOU REPLY ON AIR FORCE REGULATIONS 40-17, NOVEMBER 28, 1955, WHICH IMPLEMENTS FOR THE DEPARTMENT OF THE AIR FORCE THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, 68 STAT. 1114, AS AMENDED, 5 U.S.C. 2131 TO 2133, TO SUPPORT YOUR CLAIM.

THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, AS AMENDED, 5 U.S.C. 2131 TO 2133, AUTHORIZES THE HEAD OF A FEDERAL AGENCY TO WHICH AN APPROPRIATION IS MADE FOR UNIFORMS TO PROVIDE, UNDER REGULATIONS OF THE BUREAU OF THE BUDGET, UNIFORMS OR PAY AN ALLOWANCE IN LIEU OF UNIFORMS TO EMPLOYEES OF THE AGENCY "WHO ARE REQUIRED BY REGULATIONS OR BY LAW" (5 U.S.C. 2131) TO WEAR A PRESCRIBED UNIFORM.

WHILE YOU CONTEND THAT AFR 40-17 WAS A REGULATION REQUIRING YOU TO WEAR A UNIFORM, PARAGRAPH 9 OF THAT REGULATION PROVIDES:

COMMANDERS OF OVERSEA COMMANDS WILL DETERMINE WHETHER FOREIGN NATIONALS EMPLOYED BY THE AIR FORCE WILL BE REQUIRED TO WEAR UNIFORMS. IF UNIFORMS ARE REQUIRED, THE AIR FORCE COMMANDER IN THE OVERSEA THEATRE WILL DETERMINE WHETHER THE EMPLOYEES WILL BE FURNISHED UNIFORMS OR PAID UNIFORM ALLOWANCES UNDER THIS REGULATION. * * *

THIS PARAGRAPH CLEARLY CONTEMPLATES BEFORE UNIFORMS OR AN ALLOWANCE IN LIEU THEREOF BE GRANTED TO FOREIGN NATIONAL EMPLOYEES THAT THE OVERSEAS COMMANDERS MAKE A DETERMINATION THAT UNIFORMS ARE REQUIRED AND AS TO WHETHER THEY ARE TO BE FURNISHED IN KIND OR BY A MONETARY ALLOWANCE IN LIEU THEREOF AS YOU KNOW, THE AIR FORCE HAS REPORTED THAT YOU WERE NOT REQUIRED TO WEAR A UNIFORM BY REASON OF AFR 40-17 OR OTHER REGULATIONS. ALSO, THE RECORD HERE INDICATES YOU ARE A FOREIGN NATIONAL. YOU HAVE NOT FURNISHED ANY EVIDENCE OR COPY OF ANY DIRECTIVE BY THE OVERSEAS COMMAND REQUIRING THAT FOREIGN NATIONAL GUARDS WEAR UNIFORMS AND WOULD BE PAID AN ALLOWANCE FOR THAT PURPOSE. IT HAS LONG BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICERS OF THE UNITED STATES AS TO FACTS INVOLVED IN A CLAIM IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF FACTS AS ADMINISTRATIVELY REPORTED. SEE 16 COMP. GEN. 1105; 31 ID. 288.

ACCORDINGLY, AND AS IT DOES NOT APPEAR YOU WERE "REQUIRED BY REGULATIONS OR BY LAW" TO WEAR A PRESCRIBED UNIFORM, WHICH IS A CONDITION PRECEDENT UNDER 5 U.S.C. 2131 TO BEING FURNISHED UNIFORMS OR AN ALLOWANCE IN LIEU THEREOF, THERE IS NO BASIS FOR ALLOWANCE OF YOUR CLAIM AND OUR SETTLEMENT OF MARCH 11, 1958, IS SUSTAINED.