B-136447, JUL. 18, 1958

B-136447, JUL. 18, 1958

TO MR. ALBERT I. LEWIS:

YOUR LETTER OF MAY 18, 1958, TO SENATOR ESTES KEFAUVER, WAS FORWARDED HERE AS AN APPEAL OF THE DISALLOWANCE OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR THE TIME YOU SERVED AS CIVILIAN "DUTY OFFICER" DURING THE PERIOD NOVEMBER 1951 TO SEPTEMBER 1953, UNDER THE AREA SCHEDULES AND THE REGULATIONS OF THE DEPARTMENT OF THE ARMY, OFFICE OF POST ENGINEER, HEIDELBERG, GERMANY. ALSO, WE HAVE YOUR LETTER OF JULY 5, 1958, CONCERNING THE "DUTY ROSTERS" IN QUESTION.

YOUR CLAIM WAS DISALLOWED IN OUR CLAIMS DIVISION SETTLEMENT OF MARCH 19, 1958; HOWEVER, YOU REQUEST REVIEW OF THAT SETTLEMENT PRIMARILY BECAUSE YOU BELIEVE THE FACTS OF THE MATTER WERE NOT VERIFIED OR CHECKED BY PERSONNEL FAMILIAR WITH THE SITUATION AT THE TIME. THE FILE ON YOUR CLAIM WAS FORWARDED TO THE INSTALLATION IN QUESTION AND THE REPORT 13 MARCH 1957 OF THE ADMINISTRATIVE ASSISTANT (W. DENTZ) OF THE POST ENGINEER, MANNHEIM, APO 403A, IS AS FOLLOWS:

"DURING 1951 DAC'S AND OFFICERS WERE UTILIZED AS DUTY OFFICERS ON SATURDAY MORNINGS FROM 0800 HOURS TO 1215 HOURS, SINCE LOCAL WAGE TARIFF EMPLOYEES ARE WORKING ON SATURDAYS. DAC'S AND OFFICERS WERE AT THAT TIME ON AN ALTERNATING SHIFT TO HAVE ONE OFFICER OR DAC AVAILABLE FOR ANY UPCOMING EMERGENCY WHICH REQUIRED THE SERVICE OF AN OFFICER.

"WEEKEND ROSTERS AND WEEKDAY ROSTERS WERE ALSO PREPARED TO HAVE EITHER AN OFFICER OR DAC AVAILABLE OVER THE PHONE IN CASE OF EMERGENCY. THIS WAS ONLY AN ON CALL SERVICE.

"I RECOGNIZED THE DUTY ROSTERS PRESENTED TO ME BY A REPRESENTATIVE OF THE CPO AS THE ONES WHICH HAVE BEEN PREPARED BY THIS OFFICE.' FURTHER, IN THAT REGARD THE REPORT OF 6 NOVEMBER 1957, FROM THE CENTRAL FINANCE AND ACCOUNTING OFFICER, HEIDELBERG, APO 403, IS AS FOLLOWS:

"* * * THERE ARE, AND ALWAYS HAVE BEEN, NUMEROUS UNITS WITHIN THE US ARMY WHICH DESIGNATE KEY PERSONNEL AS "DUTY OFFICER" DURING PERIODS WHEN OFFICES AND/OR SHOPS ARE CLOSED AND A CHARGE OF QUARTERS REMAINS ON DUTY TO TAKE CARE OF NORMAL EMERGENCY WORK AND TO SUPERVISE EMERGENCY CREWS. SINCE THE AUTHORITY OF SUCH CHARGE OF QUARTERS IS ESSENTIALLY QUITE LIMITED, A "DUTY OFFICER" IS NAMED WHO IS NOT REQUIRED TO REMAIN AT HIS DUTY POST BUT MAY MOVE FREELY IN THE VICINITY OF SAME AS LONG AS HE KEEPS THE CHARGE OF QUARTERS INFORMED OF HIS WHEREABOUTS. SUCH "DUTY OFFICER" MAY EAT, SLEEP, OR MOVE ABOUT WHEREVER THEY WISH AND A LOCAL TELEPHONE CALL CAN REACH THEM. HOWEVER, VERY RARELY ARE THEY ACTUALLY CONTACTED IN ORDER TO APPROVE, OVER THE TELEPHONE, AN EMERGENCY WORK ORDER WHICH IS BEYOND THE CHARGE OF QUARTERS AUTHORITY OF ACTION. INVESTIGATION INDICATES THAT THE ARRANGEMENTS IN THE CLAIMANT'S UNIT WERE OF THIS NATURE, AND THE OFFICE MEMORANDUMS CONCERNING THE RESPONSIBILITIES OF THE DUTY OFFICER AND UNIT CHARGE OF QUARTERS CLEARLY SUPPORT THAT INDICATION.

"2. NO EVIDENCE HAS BEEN FOUND WHICH WOULD INDICATE THAT CLAIMANT EVER PERFORMED MORE THAN 40 HOURS OF WORK IN ANY WEEK DURING THE PERIOD INVOLVED.

"3. INDIVIDUAL EARNINGS RECORDS FOR 1951, 1952, AND 1953 AND THE LEAVE RECORD FOR 1953 ARE FURNISHED AS ADDITIONAL ENCLOSURES.

"4. IT IS THE OPINION OF THIS OFFICE THAT THIS CLAIM SHOULD BE DISAPPROVED. NO ACTION HAS BEEN OR WILL BE TAKEN BY THIS OFFICE TO EFFECT SETTLEMENT.'

THE ABOVE-QUOTED REPORTS DO NOT INDICATE THAT THE "DUTIES" YOU SAY YOU PERFORMED CONSTITUTED OVERTIME WORK WITHIN THE PURVIEW OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WHICH, IN PERTINENT PART, IS QUOTED IN OUR SETTLEMENT LETTER OF MARCH 19, 1958, TO YOU.

IN THE FURTHERANCE OF A CLAIM COGNIZABLE BY OUR OFFICE UNDER THE LAW, IT IS INCUMBENT UPON THE CLAIMANT TO ESTABLISH BY PROPER EVIDENCE THAT THE CLAIM IS DUE AND PAYABLE. MOREOVER, WHERE THERE IS A CONFLICT BETWEEN THE FACTS ALLEGED BY A CLAIMANT AND THE FACTS ADMINISTRATIVELY REPORTED AS VERIFIED FROM THE RECORD, OUR CONCLUSIONS NECESSARILY MUST BE BASED UPON THE OFFICIAL WRITTEN RECORD, WHICH RECORD IS PRESUMED TO BE CORRECT IN THE ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY. THE INFORMATION YOU HAVE FURNISHED US IS NOT SUFFICIENT TO JUSTIFY THE DETERMINATIONS BY OUR OFFICE THAT THE ADMINISTRATIVE REPORT AND RECORDS FURNISHED ARE INCORRECT OR THAT YOUR CLAIM IS ALLOWABLE.

THEREFORE, AND AS YOUR LETTERS OF MAY 18 AND JULY 5, 1958, ADD NO FACT OR EVIDENCE OF A CIRCUMSTANCE NOT ALREADY FULLY CONSIDERED IN THE SETTLEMENT OF MARCH 19, 1958, THE SETTLEMENT IS SUSTAINED.