B-156037, MAY 4, 1965

B-156037, MAY 4, 1965

TO MR. BENJAMIN C. CABUYADAO:

WE REFER TO YOUR LETTER OF JANUARY 10, 1965, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM ON ACCOUNT OF THE ALLEGED OVERDEDUCTION FROM YOUR WAGES FOR QUARTERS AND SUBSISTENCE DURING YOUR EMPLOYMENT BY THE DEPARTMENT OF THE ARMY, APPARENTLY FROM 1947 TO 1954, AT AN OVERSEAS BASE.

OUR CLAIMS DIVISION LETTERS OF MARCH 17 AND JUNE 1, 1964, EXPLAINED TO YOU THE REASONS WHY NO PART OF YOUR CLAIM COULD RECEIVE FAVORABLE ACTION HERE. WE SHALL ENLARGE UPON THOSE EXPLANATIONS.

YOUR CLAIM WAS RECEIVED HERE ON JUNE 24, 1963. YOU WERE ADVISED THAT THE ACT OF OCTOBER 9, 1940, VOLUME 54, UNITED STATES STATUTES AT LARGE, PAGE 1061, PREVENTED US FROM GIVING ANY CONSIDERATION TO ANY PERIOD MORE THAN 10 YEARS PRIOR TO THE DATE WE RECEIVED THE CLAIM; THAT IS, PRIOR TO JUNE 24, 1953. A COPY OF THE 1940 ACT WAS FURNISHED YOU. YOU SAY THAT YOU WERE EMPLOYED PURSUANT TO A 1947 LABOR AGREEMENT (CONSISTING OF THE AMERICAN EMBASSY'S NOTE OF MAY 13, 1947, AND THE ACCEPTANCE NOTE OF THE ACTING SECRETARY OF FOREIGN AFFAIRS, REPUBLIC OF THE PHILIPPINES, DATED MAY 16, 1947), AND YOU CONTEND THAT THE LABOR AGREEMENT RATHER THAN THE 1940 ACT IS APPLICABLE. SUCH IS NOT THE CASE. THE AUTHORITY OF OUR OFFICE TO SETTLE CLAIMS AGAINST THE UNITED STATES WAS CONFERRED BY SECTION 305 OF THE ACT OF JUNE 10, 1921, VOLUME 42, UNITED STATES STATUTES AT LARGE, PAGE 24. LATER, BECAUSE OF DIFFICULTIES EXPERIENCED IN ATTEMPTING TO VERIFY FROM OFFICIAL RECORDS CLAIMS, SUCH AS YOURS, WHICH WERE MANY YEARS OLD, THE 1940 ACT WAS ENACTED BY THE CONGRESS OF THE UNITED STATES TO LIMIT OUR AUTHORITY SO THAT WE COULD CONSIDER ONLY THOSE CLAIMS WHICH WERE PRESENTED HERE WITHIN 10 YEARS FROM THE DATE THEY FIRST ACCRUED. HAVE ONLY SUCH AUTHORITY TO CONSIDER CLAIMS AS HAS BEEN CONFERRED BY THE CONGRESS. THE 1947 AGREEMENT DOES NOT PURPORT TO CONFER UPON US ANY AUTHORITY GREATER THAN THAT OF THE 1940 ACT BUT, EVEN IF IT DID, IT SHOULD BE CLEAR THAT A DIPLOMATIC AGREEMENT, SUCH AS THE ONE HERE INVOLVED, NOT HAVING THE STATUS OF AN INTERNATIONAL TREATY RATIFIED BY THE SENATE IN ACCORDANCE WITH THE CONSTITUTION OF THE UNITED STATES, CANNOT TAKE PRECEDENCE OVER A STATUTE ENACTED BY THE CONGRESS.

AS TO THE MERITS OF THAT PORTION OF YOUR CLAIM BEGINNING JUNE 24, 1953, WHICH IS WITHIN OUR AUTHORITY TO CONSIDER, PARAGRAPH 4 OF THE 1947 AGREEMENT, CONCERNING WAGES, QUARTERS AND SUBSISTENCE, PROVIDED AS FOLLOWS:

"INSOFAR AS FILIPINO EMPLOYEES WHO ARE HIRED DIRECTLY BY THE UNITED STATES GOVERNMENT AT ANY PLACE OUTSIDE THE PHILIPPINES ARE CONCERNED, THE UNITED STATES ARMY WILL IN ALL CASES AGREE TO THE PAYMENT OF AN INCREASE IN THE CURRENT PHILIPPINE WAGES OF 15 CENTAVOS PER HOUR IN LIEU OF FREE QUARTERS AND SUBSISTENCE SUGGESTED BY YOUR EXCELLENCY'S GOVERNMENT, PLUS A 25 PERCENT OVERSEAS DIFFERENTIAL, AND THEN CHARGE ALL EMPLOYEES FOR QUARTERS AND SUBSISTENCE AS FURNISHED. THE CHARGES FOR QUARTERS AND SUBSISTENCE WILL BE AS FOLLOWS:

"/A) QUARTERS--- P2.00 PER MONTH.

"/B) SUBSISTENCE--- 90 CENTAVOS PER DAY FOR THE PHILIPPINE SCOUT RATION, OR P1.50 PER DAY FOR THE REGULAR U.S. ARMY RATION, WHICHEVER IS FURNISHED.'

YOU WILL NOTE THAT WHILE PROVISION WAS MADE FOR DEDUCTIONS FOR QUARTERS AND SUBSISTENCE FURNISHED, A COMPENSATING INCREASE ABOVE THE BASIC WAGE RATE, WHICH WOULD OTHERWISE HAVE BEEN PAYABLE, WAS PROVIDED.

AS EXPLAINED TO YOU IN OUR PREVIOUS LETTERS, THE OFFICIAL RECORDS KEPT BY THE DEPARTMENT OF THE ARMY SHOW THAT A CHARGE OF $1 PER MONTH FOR QUARTERS WAS MADE AGAINST YOUR PAY. THAT CHARGE WAS IN ACCORDANCE WITH THE 1947 AGREEMENT, $1 UNITED STATES CURRENCY BEING EQUAL TO P2.00, AND, THEREFORE, WAS CORRECT.

ALSO, AS EXPLAINED IN OUR PREVIOUS LETTERS, THE OFFICIAL RECORDS SHOW THAT NO CHARGE WAS MADE FOR SUBSISTENCE. THEREFORE, SO FAR AS CONCERNS OFFICIAL RECORDS, NO OVERDEDUCTION FOR SUBSISTENCE WAS MADE AS ALLEGED BY YOU. IF, AS YOU SAY, YOU ATE YOUR MEALS IN A MILITARY KITCHEN DURING ALL OF THE TERM OF YOUR EMPLOYMENT AND IF, AS THE DEPARTMENT OF THE ARMY REPORTS, NO CHARGE WAS MADE FOR SUBSISTENCE, THERE HAS BEEN AN UNDERDEDUCTION FROM YOUR PAY OF 45 CENTS (90 CENTAVOS) OR 75 CENTS (P1.50) PER DAY, DEPENDING UPON THE RATION YOU RECEIVED, AND YOU HAVE BEEN OVERPAID, CONTRARY TO THE PROVISIONS OF THE 1947 AGREEMENT QUOTED ABOVE. HOWEVER, UNDER THE CIRCUMSTANCES, WE SHALL NOT PRESS THE MATTER OF COLLECTION OF OVERPAYMENTS FROM YOU.

IN SUMMARY, THE 1940 ACT BARS OUR CONSIDERATION OF ANY PERIOD OF YOUR EMPLOYMENT PRIOR TO JUNE 24, 1953, AND THE OFFICIAL RECORDS BEFORE US DO NOT SHOW ANY OVERDEDUCTION FOR QUARTERS AND SUBSISTENCE. THEREFORE, OUR PREVIOUS ACTION ON YOUR CLAIM MUST BE SUSTAINED.

UNLESS YOU CAN FURNISH US WITH CONVINCING EVIDENCE TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE OFFICIAL RECORDS, FURTHER CORRESPONDENCE CONCERNING THIS PARTICULAR CLAIM WILL SERVE NO USEFUL PURPOSE AND WILL BE FILED WITHOUT REPLY.

IT MAY BE THAT YOU HAVE CONFUSED YOUR STATUS AS AN EMPLOYEE HIRED DIRECTLY BY THE DEPARTMENT OF THE ARMY WITH THAT OF EMPLOYEES OF CERTAIN PRIVATE CONTRACTORS PERFORMING WORK FOR THAT DEPARTMENT. UNDER THE 1947 AGREEMENT, THE PRIVATE CONTRACTORS' EMPLOYEES WERE TO BE RECRUITED AT BASIC PHILIPPINE RATES, PLUS FREE QUARTERS AND SUBSISTENCE. HOWEVER, AS INDICATED ABOVE, AMOUNTS SUFFICIENT TO COVER THE DEDUCTIONS FOR QUARTERS AND SUBSISTENCE WERE ADDED TO BASIC PHILIPPINE RATES, IN THE CASE OF EMPLOYEES HIRED DIRECTLY BY THE DEPARTMENT OF THE ARMY. THE FINAL RESULT IS SUBSTANTIALLY THE SAME IN BOTH CASES.