B-158582, SEP. 3, 1969

B-158582, SEP. 3, 1969

CIVIL PAY - OVERTIME - EVIDENCE DECISION TO NAVY EMPLOYEE DISALLOWING CLAIM FOR OVERTIME WHILE ASSIGNED AS SAFETY INSPECTOR AT MIDWAY ISLAND. EMPLOYEE WHO FURNISHES PILOT LOG ENTRIES OF INSTRUCTIONS TO SUPPORT CLAIM FOR OVERTIME MAY NOT HAVE SUCH EVIDENCE REGARDED AS OVERCOMING ADMINISTRATIVE REPORT INDICATING THAT COLLATERAL DUTY WAS AN EXTENSION OF HARBOR PILOT RESPONSIBILITIES AND COULD HAVE BEEN PERFORMED WITHOUT OVERTIME. HENCE CLAIM MUST BE DISALLOWED.

TO MR. VERNE WILLIAMSON:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1969, WHICH WE ACKNOWLEDGED APRIL 14. WITH YOUR LETTER YOU SUBMITTED A COPY OF PILOT LOG ENTRIES FOR THE PERIOD SEPTEMBER 1959 TO OCTOBER 1961, AS CERTIFIED BY D. L. KERFOOT, LCDR, USN, PHOTOCOPIES OF PAGES 1 THROUGH 8 NCPI 610, CONTAINING THE INSTRUCTIONS YOU SAY WERE USED AS LEGAL REFERENCE TO SUPPORT THE CLAIM, AND AN AFFIDAVIT SIGNED BY RAMON V. DIAZ, ATTORNEY AT LAW, AGANA, GUAM, INCLUDING 17 FADED PHOTOCOPIES OF PILOT LOG ENTRIES BEARING NOTARY STAMP WITH SIGNATURE OF THE AFFIANT, WHICH AFFIDAVIT WAS PREPARED IN 1966 IN CONNECTION WITH A UNITED STATES COURT OF CLAIMS PETITION BARRED BECAUSE IT WAS NOT PRESENTED WITHIN THE PRESCRIBED PERIOD FOR FILING PETITIONS IN SAID COURT.

WE FURNISHED THE FOREGOING ADDITIONAL EVIDENCE TO THE DEPARTMENT OF THE NAVY FOR FURTHER CONSIDERATION. EFFORTS WERE MADE TO CONTACT LCDR. KERFOOT TO SECURE HIS COMMENTS ON THIS CLAIM, BUT NO RESPONSE TO THE INQUIRY WAS MADE BY LCDR. KERFOOT. ON THE OTHER HAND, CAPT. J. B. BURKS, USN (RET.), THE COMMANDING OFFICER AT MIDWAY ISLAND DURING THE PERIOD OF YOUR OVERTIME CLAIM, ADVISED AS FOLLOWS:

"DURING MY TENURE AS COMMANDING OFFICER AT MIDWAY ISLAND, I DID ASSIGN THE DEPARTMENT HEAD OF THE HARBOR DEPARTMENT, A NAVY OFFICER, ADDITIONAL DUTY AS SAFETY OFFICER. IT WOULD BE EXPECTED THAT THE SAFETY OFFICER APPOINT SAFETY INSPECTORS. MR. WILLIAMSON, AS ONE OF THE STATION SAFETY INSPECTORS, CARRIED OUT THIS COLLATERAL DUTY IN A VERY RESPONSIBLE AND SATISFACTORY MANNER. HOWEVER, THE COLLATERAL DUTY AS INSPECTION OFFICER IN THE HARBOR AREA WAS AN EXTENSION OF HIS HARBOR PILOT RESPONSIBILITIES, NOT RIGOROUS, AND COULD BE PERFORMED WITH NO OVERTIME REQUIREMENTS.

"* * * THE POSITION OF HARBOR PILOT AT THIS ISOLATED ISLAND OF MIDWAY WAS CONSIDERED A VERY PREFERRED POSITION BY ALL HANDS ON THE ISLAND. BECAUSE OF THE FREE TIME AVAILABLE TO THE HARBOR PILOT, HAD THE QUESTION OF OVERTIME BEEN RAISED DURING HIS TIME OF SERVICE ON THE ISLAND * * * I DO NOT BELIEVE THAT IT WOULD HAVE RECEIVED SERIOUS OFFICIAL CONSIDERATION ON THE STATION OR IN WAII.'

IT WOULD APPEAR THAT THE PILOT LOG ENTRIES YOU FURNISHED ARE SIMILAR TO EXCERPTS FROM LOGS PREVIOUSLY INCLUDED IN THE OFFICIAL RECORD AND WERE PREVIOUSLY CONSIDERED IN CONNECTION WITH YOUR CLAIM. NEITHER WE, NOR THE DEPARTMENT OF THE NAVY, HAVE FOUND ANYTHING THEREIN SUFFICIENT TO REBUT THE OFFICIAL REPORT OF THE FORMER COMMANDING OFFICER TO THE EFFECT THAT YOU PERFORMED NO OVERTIME SERVICES DURING THE PERIOD IN QUESTION. IN THE ABSENCE OF EVIDENCE CLEARLY ESTABLISHING YOU, IN FACT, RENDERED OVERTIME SERVICES PURSUANT TO PROPER ORDERS OR THAT SUCH OVERTIME HAS BEEN ADMINISTRATIVELY APPROVED, THERE IS NO PROPER BASIS UPON WHICH WE MAY AUTHORIZE PAYMENT.

WITH RESPECT TO THE COPIES OF THE PAGES OF NCPI 610 THAT YOU FURNISHED, WE HAVE TO ADVISE THAT SUCH INSTRUCTIONS WERE FULLY CONSIDERED IN OUR CONCLUSION DISALLOWING YOUR CLAIM IN OUR PREVIOUS DECISIONS. NOTHING CONTAINED IN THE COPY OF THE AFFIDAVIT FURNISHED ESTABLISHES A BASIS FOR ALTERING OUR PREVIOUS HOLDING ON YOUR CLAIM.

ACCORDINGLY, WE ARE REQUIRED TO SUSTAIN OUR PREVIOUS ACTIONS WITH RESPECT TO YOUR CLAIM.