B-157719, OCT. 15, 1965

B-157719: Oct 15, 1965

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THE FACTS IN YOUR CASE WERE FULLY SET FORTH IN OUR SETTLEMENT OF AUGUST 11. YOUR CLAIM WAS DISALLOWED ON THE RECOMMENDATION OF THE ADMINISTRATIVE OFFICE BECAUSE OF THE LACK OF OFFICIAL RECORDS TO SHOW THAT THE OVERTIME HAD BEEN ACTUALLY WORKED OR OF AN OFFICIAL AUTHORIZATION FOR THE OVERTIME SERVICE. YOU SAY THAT OVERTIME WAS INHERENT IN THE POSITION HELD BY YOU. HINDSLEY WHEREIN HE STATES THAT "INHERENT IN BUDGET ADMINISTRATION ARE ONE-TIME AND QUARTERLY PEAK WORKLOAD REQUIREMENTS WHICH GENERALLY NECESSITATE OVERTIME WORK.'. I AM OF THE OPINION THAT THE COMPENSATORY TIME OFF TAKEN WAS ADEQUATE TO COVER THE OVERTIME WORKED UNDER MY SUPERVISION. THIS WOULD INDICATE THAT YOU HAD RECEIVED COMPENSATORY TIME OFF TO COMPENSATE YOU FOR ANY OVERTIME YOU WERE REQUIRED TO PERFORM UNDER THE SUPERVISION AND APPROVAL OF COLONEL HINDSLEY.

B-157719, OCT. 15, 1965

TO MR. RICHARD GRAHAM, JR.:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 22, 1965, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF AUGUST 11, 1965, WHICH DISALLOWED YOUR CLAIM FOR 740 3/4 HOURS OF OVERTIME COMPENSATION COVERING THE PERIOD DECEMBER 11, 1962, THROUGH SEPTEMBER 22, 1964, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, TACHIKAWA AIR BASE.

THE FACTS IN YOUR CASE WERE FULLY SET FORTH IN OUR SETTLEMENT OF AUGUST 11, 1965, AND NEED NOT BE REPEATED HERE. YOUR CLAIM WAS DISALLOWED ON THE RECOMMENDATION OF THE ADMINISTRATIVE OFFICE BECAUSE OF THE LACK OF OFFICIAL RECORDS TO SHOW THAT THE OVERTIME HAD BEEN ACTUALLY WORKED OR OF AN OFFICIAL AUTHORIZATION FOR THE OVERTIME SERVICE.

YOU SAY THAT OVERTIME WAS INHERENT IN THE POSITION HELD BY YOU. SUPPORT OF THIS VIEW YOU REFER TO A LETTER TO YOU FROM LIEUTENANT COLONEL JOHN A. HINDSLEY WHEREIN HE STATES THAT "INHERENT IN BUDGET ADMINISTRATION ARE ONE-TIME AND QUARTERLY PEAK WORKLOAD REQUIREMENTS WHICH GENERALLY NECESSITATE OVERTIME WORK.' IN THE SAME LETTER COLONEL HINDSLEY ALSO STATES THAT: "OFFICE POLICY AND PROCEDURES EXISTING DURING THE PERIOD OF YOUR EMPLOYMENT PROVIDED FOR ADEQUATE COMPENSATORY TIME OFF GRANTED IN LIEU OF OVERTIME PAY, I AM OF THE OPINION THAT THE COMPENSATORY TIME OFF TAKEN WAS ADEQUATE TO COVER THE OVERTIME WORKED UNDER MY SUPERVISION, DIRECTION AND APPROVAL.' THIS WOULD INDICATE THAT YOU HAD RECEIVED COMPENSATORY TIME OFF TO COMPENSATE YOU FOR ANY OVERTIME YOU WERE REQUIRED TO PERFORM UNDER THE SUPERVISION AND APPROVAL OF COLONEL HINDSLEY.

YOU ALSO REFER TO A STATEMENT FROM LIEUTENANT COLONEL GERALD J. POST WHICH YOU SAY ESTABLISHES THAT OVERTIME WAS PERFORMED AND WOULD HAVE BEEN OFFSET BY COMPENSATORY TIME OFF, WHICH WOULD HAVE BEEN GRANTED BY HIM HAD NOT CIRCUMSTANCES PREVENTED HIM FROM DOING SO. THE CERTIFICATE DATED APRIL 16, 1965, AND SIGNED BY COLONEL GERALD J. POST PROVIDES AS FOLLOWS:

"ALTHOUGH NO OFFICIAL RECORDS ARE AVAILABLE, I HAVE NO REASON TO QUESTION MR. RICHARD GRAHAM'S PERSONAL RECORD AND BELIEVE THAT HE DID IN FACT WORK 39 AND 3/4 HOURS OF OVERTIME WITHOUT COMPENSATION DURING THE PERIOD 1 JULY 1964 THROUGH 23 AUGUST 1964. HIS REASSIGNMENT IN EARLY SEPTEMBER 1964, PRECLUDED GRANTING SUFFICIENT COMPENSATORY TIME OFF.'

THIS IS MERELY A STATEMENT SHOWING THAT NO OFFICIAL RECORDS WERE AVAILABLE TO SHOW THAT YOU DID WORK THE 39 3/4 HOURS AS CLAIMED, BUT THAT THE AUTHOR DID NOT QUESTION YOUR VERACITY CONCERNING THE ALLEGED OVERTIME WORKED. THIS CANNOT BE ACCEPTED AS SUFFICIENT EVIDENCE TO REFUTE THE EVIDENCE AS SHOWN IN THE OFFICIAL RECORDS.

YOU ALSO REFER TO ATTACHMENTS NUMBERS 5 AND 10 OF THE PAPERS SUBMITTED WITH YOUR CLAIM TO SHOW THE WORK SCHEDULES PREPARED BY THE CHIEF, BUDGET DIVISION AND DISTRIBUTED TO ALL THE EMPLOYEES IN THE DIVISION. THESE ARE UNSIGNED CHARTS SHOWING WHEN CERTAIN DRAFTS WERE REQUIRED TO BE COMPLETED DURING THE YEAR 1963. IT IS NOTED AT THE END OF EACH ATTACHMENT THERE IS SHOWN THE WORKING HOURS WHICH FOR A SHORT PERIOD OF TIME REQUIRED NIGHT WORK AND WORK ON WEEKENDS TO ACCOMPLISH THE MISSION. WHILE THERE IS NOTHING OF RECORD TO SHOW WHETHER YOU WORKED OVERTIME OR HOW MUCH OVERTIME YOU WORKED DURING THE PERIOD COVERED BY THE ATTACHMENTS, LIEUTENANT COLONEL JOHN A. HINDSLEY IN A LETTER OF MAY 5, 1965, TO YOU, STATED THAT THE COMPENSATORY TIME OFF TAKEN BY YOU WAS ADEQUATE TO COVER THE OVERTIME WORKED UNDER HIS SUPERVISION.

WE CANNOT CONCUR IN YOUR STATEMENT THAT SUPERVISORS ARE EXPRESSLY FORBIDDEN BY SECTION 3679 (B) OF THE REVISED STATUTES, AS AMENDED, 31 U.S.C. 665, FROM ACCEPTING VOLUNTARY SERVICE FOR THE UNITED STATES AND THAT ANY VOLUNTARY OVERTIME WORKED BY YOU AND ACCEPTED BY A GOVERNMENT OFFICIAL WOULD SUBJECT SUCH OFFICIAL TO DISCIPLINARY ACTION. THE PROVISIONS OF 31 U.S.C. 665 (B) PROHIBITING THE ACCEPTANCE OF VOLUNTARY SERVICE FOR THE GOVERNMENT HAS NO APPLICATION TO THE PERFORMANCE OF ADDITIONAL SERVICE BY A CLERK IN AN EXECUTIVE DEPARTMENT WITHOUT ADDITIONAL COMPENSATION BUT REFERS TO VOLUNTARY SERVICES RENDERED BY A PRIVATE PERSON WITHOUT AUTHORITY OF LAW. 30 OP.ATTY.GEN. 51, ID. 129.

REGARDING THE CASE OF BYRNES ET AL. V. UNITED STATES, 330 F.2D 986, THIS WAS A CASE WHERE THE ACTUAL PERFORMANCE BY A NUMBER OF PLAINTIFFS OF WORK OUTSIDE, OR, IN ADDITION TO, THE NORMAL WORKWEEK OF FIVE EIGHT HOUR DAYS WAS NOT IN DISPUTE. THE PRINCIPLE ISSUE WAS WHETHER THE EXTRA HOURS ACTUALLY WORKED WERE OFFICIALLY ORDERED OR APPROVED WITHIN THE MEANING OF THE STATUTE AND PERTINENT REGULATIONS.

IN YOUR CASE THE ADMINISTRATIVE OFFICE REPORTS THAT THERE IS NO OFFICIAL RECORD ON TIME AND ATTENDANCE SHEETS, OVERTIME AUTHORIZATION SLIPS, OR ON YOUR PAY RECORD WHICH INDICATES THAT THE ALLEGED OVERTIME WAS EITHER APPROVED OR WORKED.

WE HAVE NO FIRSTHAND KNOWLEDGE OF THE FACTS GIVING RISE TO THE MANY CLAIMS THAT ARE RECEIVED HERE BUT MUST RELY UPON THE INFORMATION FURNISHED BY THE CLAIMANTS AND THE REPORTS WHICH WE OBTAIN FROM THE DEPARTMENTS AND AGENCIES INVOLVED. FURTHER, IN CASES OF DISPUTES BETWEEN THE CLAIMANTS AND THE ADMINISTRATIVE AGENCIES AS TO THE MATERIAL FACTS SURROUNDING A CLAIM IT IS A WELL-ESTABLISHED RULE THAT ACCOUNTING OFFICERS MUST ACCEPT THE FACTS AS ESTABLISHED BY THE OFFICIAL RECORDS IN THE ABSENCE OF EVIDENCE TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF SUCH RECORDS.

THE AGENCY REPORT AND SUPPORTING DOCUMENTS SHOW NO RECORD OF THE ALLEGED OVERTIME OR OF AN OFFICIAL AUTHORIZATION FOR THE OVERTIME SERVICES. UNDER THE CIRCUMSTANCES WE FIND NO CLEAR BASIS FOR ALLOWANCE OF YOUR CLAIM AND,THEREFORE, THE SETTLEMENT OF AUGUST 11, 1965, MUST BE SUSTAINED.