B-138308, DEC. 10, 1959

B-138308: Dec 10, 1959

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YOUR REQUEST IS BASED UPON YOUR ASSERTION THAT YOU WERE REQUIRED TO PERFORM TWO HOURS OF PATROL DUTY AS A FIREGUARD AND TWO HOURS OF DUTY AS ALARM OPERATOR AND RECORDER ON ALTERNATE SHIFTS. THE DEPARTMENT OF THE ARMY INFORMS US THAT THE INSTALLATION WAS INACTIVATED IN 1955. ARE NO LONGER AVAILABLE. THE DEPARTMENT REPORTS THAT AVAILABLE INFORMATION INDICATES THAT PAYMENTS WERE MADE IN ACCORDANCE WITH LOCAL RULES AND PRACTICES IN EFFECT AT THE TIME. THAT ACTUAL OR EMERGENCY DUTIES PERFORMED DURING STAND-BY TIME WERE COMPENSATED FOR DURING THE SAME SHIFT BY ALLOWING TIME FOR SLEEPING AND EATING. AN EXAMINATION OF YOUR PAY RECORDS INDICATES THAT YOU HAVE BEEN COMPENSATED IN ACCORDANCE WITH THE "TWO-THIRDS RULE" FOR THE DUTY HOURS SHOWN.

B-138308, DEC. 10, 1959

TO MR. LLOYD D. HARP:

ON MARCH 3, 1959, YOU REQUESTED FURTHER CONSIDERATION OF OUR SETTLEMENT OF OCTOBER 28, 1958, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION (OVERTIME AND NIGHT DIFFERENTIAL) FOR SERVICES RENDERED AS A FIREFIGHTER AT THE ARMY-NAVY HOSPITAL, HOT SPRINGS MEMORIAL PARK, ARKANSAS. YOUR REQUEST IS BASED UPON YOUR ASSERTION THAT YOU WERE REQUIRED TO PERFORM TWO HOURS OF PATROL DUTY AS A FIREGUARD AND TWO HOURS OF DUTY AS ALARM OPERATOR AND RECORDER ON ALTERNATE SHIFTS, BETWEEN THE HOURS OF 10:00 P.M. AND 6:00 A.M.

THE DEPARTMENT OF THE ARMY INFORMS US THAT THE INSTALLATION WAS INACTIVATED IN 1955, AND THAT THE FIRE STATION DAILY LOG SUMMARIES FOR 1946-1950, TO WHICH YOU REFERRED IN YOUR LETTER OF DECEMBER 9, 1958, ARE NO LONGER AVAILABLE. HOWEVER, THE DEPARTMENT REPORTS THAT AVAILABLE INFORMATION INDICATES THAT PAYMENTS WERE MADE IN ACCORDANCE WITH LOCAL RULES AND PRACTICES IN EFFECT AT THE TIME, AND THAT ACTUAL OR EMERGENCY DUTIES PERFORMED DURING STAND-BY TIME WERE COMPENSATED FOR DURING THE SAME SHIFT BY ALLOWING TIME FOR SLEEPING AND EATING.

AN EXAMINATION OF YOUR PAY RECORDS INDICATES THAT YOU HAVE BEEN COMPENSATED IN ACCORDANCE WITH THE "TWO-THIRDS RULE" FOR THE DUTY HOURS SHOWN; AND THERE IS NOTHING IN THE RECORD BEFORE US FROM WHICH WE COULD CONCLUDE THAT THE PAYMENTS MADE DID NOT REPRESENT PROPER COMPENSATION UNDER THE LAW AND REGULATIONS FOR ALL HOURS ON DUTY, LESS SLEEPING AND EATING TIME. THEREFORE, OUR PREVIOUS ACTION DISALLOWING YOUR CLAIM MUST BE SUSTAINED.

WE POINT OUT THAT ON OCTOBER 12, 1959, THE SUPREME COURT OF THE UNITED STATES DENIED A PETITION FOR CERTIORARI IN THE CASE OF ARMSTRONG, ET AL. V. UNITED STATES, WHICH WE CITED IN OUR LETTER OF FEBRUARY 3, 1959 TO YOU; AND THAT ON NOVEMBER 9, 1959, THE COURT DENIED A MOTION FOR A REHEARING.