B-149881, SEP. 27, 1962

B-149881: Sep 27, 1962

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THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 3. BECAUSE YOU WERE NOT REQUIRED BY LAW OR REGULATION TO WEAR A PRESCRIBED UNIFORM. YOU ASSERT THAT YOU WERE REQUIRED TO WEAR KHAKI LONG PANTS. YOU HAVE ENCLOSED A PICTURE OF YOURSELF AND OTHER GUARDS IN SUCH CLOTHING AND STATE THAT WITHOUT SUCH CLOTHING YOU WERE NOT ALLOWED TO REPORT FOR DUTY. THE FACTS OF YOUR CLAIM WERE SUBMITTED TO THE AMERICAN BATTLE MONUMENTS COMMISSION. THE COMMISSION ALSO INDICATES IN ITS REPORT THAT THE FAILURE TO SO PROVIDE UNIFORMS FOR GUARDS WAS NOT AN OVERSIGHT BUT RATHER A DELIBERATE DETERMINATION THAT THE UNIFORM DESCRIBED BY YOU WAS NOT A UNIFORM PRESCRIBED UNDER THE AFOREMENTIONED ACT. RATHER IT WAS APPAREL WHICH WAS NOT DIFFERENT FROM ORDINARY WORKING CLOTHING.

B-149881, SEP. 27, 1962

TO MR. RICARDO R. REBUCAS:

YOUR LETTER OF AUGUST 12, 1962, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR A UNIFORM ALLOWANCE BELIEVED TO BE DUE YOU AS AN EMPLOYEE OF THE AMERICAN BATTLE MONUMENTS COMMISSION.

THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 3, 1962, BECAUSE THE AMERICAN BATTLE MONUMENTS COMMISSION HAD DETERMINED AS AUTHORIZED BY LAW, TO FURNISH REQUIRED UNIFORMS IN KIND RATHER THAN PAY A UNIFORM ALLOWANCE; BECAUSE REGULATIONS ISSUED BY THE COMMISSION PROVIDED FOR FURNISHING UNIFORMS ONLY TO CEMETERY SUPERINTENDENTS AND ASSISTANT SUPERINTENDENTS; AND, FURTHER, BECAUSE YOU WERE NOT REQUIRED BY LAW OR REGULATION TO WEAR A PRESCRIBED UNIFORM, THE LAST BEING A CONDITION NECESSARY FOR THE FURNISHING OF A UNIFORM OR THE PAYMENT OF AN ALLOWANCE THEREFOR UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, AS AMENDED.

IN YOUR RECENT LETTER OF AUGUST 12, 1962, YOU ASSERT THAT YOU WERE REQUIRED TO WEAR KHAKI LONG PANTS, KHAKI SHIRTS WITH LONG SLEEVES, TAN SHOES, AND HELMET LINERS. YOU HAVE ENCLOSED A PICTURE OF YOURSELF AND OTHER GUARDS IN SUCH CLOTHING AND STATE THAT WITHOUT SUCH CLOTHING YOU WERE NOT ALLOWED TO REPORT FOR DUTY. YOU ENCLOSED ALSO WITH YOUR LETTER AN AFFIDAVIT EXECUTED BY MANUEL ARNEDO, SENIOR SECURITY GUARD AT FORT MCKINLEY CEMETERY AFFIRMING YOUR STATEMENTS CONCERNING THE REQUIREMENT TO WEAR THE CLOTHING MENTIONED ABOVE.

THE FACTS OF YOUR CLAIM WERE SUBMITTED TO THE AMERICAN BATTLE MONUMENTS COMMISSION. ADVICE RECEIVED FROM THE COMMISSION INDICATED THAT, AT THE TIME OF THE ENACTMENT OF THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, THE REGULATIONS ISSUED BY THE COMMISSION AUTHORIZED THE FURNISHING OF UNIFORMS ONLY TO SUPERINTENDENTS AND ASSISTANT SUPERINTENDENTS OF EACH COMMISSION CEMETERY. NO REGULATIONS ISSUED THEN OR SINCE AUTHORIZED THE FURNISHING OF UNIFORMS, OR PAYMENT OF ALLOWANCES THEREFOR, TO THOSE OCCUPYING POSITIONS OF GUARDS. THE COMMISSION ALSO INDICATES IN ITS REPORT THAT THE FAILURE TO SO PROVIDE UNIFORMS FOR GUARDS WAS NOT AN OVERSIGHT BUT RATHER A DELIBERATE DETERMINATION THAT THE UNIFORM DESCRIBED BY YOU WAS NOT A UNIFORM PRESCRIBED UNDER THE AFOREMENTIONED ACT. RATHER IT WAS APPAREL WHICH WAS NOT DIFFERENT FROM ORDINARY WORKING CLOTHING.

ENTITLEMENT TO THE PAYMENT OF AN ALLOWANCE FOR UNIFORMS UNDER THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, AS AMENDED, 5 U.S.C. 2131 TO 2133, REQUIRES FULL COMPLIANCE WITH ALL OF THE TERMS OF THAT ACT. THE ACT AUTHORIZES AN ANNUAL APPROPRIATION FOR A SPECIFIED AMOUNT TO EACH FEDERAL AGENCY WHOSE EMPLOYEES ARE REQUIRED BY LAW OR REGULATION TO WEAR A PRESCRIBED UNIFORM IN THE PERFORMANCE OF OFFICIAL DUTIES. THE ACT FURTHER AUTHORIZES THE HEAD OF THE FEDERAL AGENCY TO FURNISH TO EACH SUCH EMPLOYEE A UNIFORM, OR AN ALLOWANCE FOR DEFRAYING THE EXPENSE OF ACQUISITION THEREOF, AS PRESCRIBED UNDER RULES AND REGULATIONS ISSUED BY THE HEAD OF SUCH AGENCY. THE EFFECT OF THIS LAW IS TO PERMIT THE HEAD OF THE FEDERAL AGENCY TO DETERMINE WHICH EMPLOYEES SHALL BE REQUIRED UNDER REGULATIONS TO WEAR A PRESCRIBED UNIFORM AND TO FURNISH SUCH UNIFORM OR PAY AN ALLOWANCE THEREFOR. THE RIGHT OF AN EMPLOYEE TO A UNIFORM, OR AN ALLOWANCE THEREFOR, IS DETERMINED UPON A REQUIREMENT FOR THE WEARING OF A UNIFORM BY LAW OR REGULATION, AS DISTINGUISHED FROM A REQUIREMENT ARISING OUT OF VERBAL INSTRUCTIONS OF A SUPERVISOR.

SINCE THE CLOTHING OR ATTIRE WORN BY YOU WHEN ON DUTY WAS SUITABLE BUT USUAL WORK CLOTHING, NOT REQUIRED TO BE WORN BY ANY PROVISION OF LAW OR REGULATION MADE PURSUANT TO LAW, WE ARE UNABLE TO FIND A BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

THEREFORE OUR OFFICE SETTLEMENT ACTION OF JULY 3, 1962, DISALLOWING YOUR CLAIM, IS SUSTAINED UPON REVIEW.