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B-128345, JUL. 18, 1956

B-128345 Jul 18, 1956
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MCGRAW: RECEIPT IS ACKNOWLEDGED OF YOUR RECENT LETTERS WITH FURTHER REFERENCE TO OUR SETTLEMENT OF APRIL 17. WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR ONE DAY'S WORK STATED TO HAVE BEEN PERFORMED ON OR ABOUT APRIL 15. PRIOR TO THE RELEASE OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM A REPORT WAS RECEIVED HERE FROM CHARLESTON NAVAL SHIPYARD SHOWING THAT YOUR ACCOUNT HAD BEEN EXAMINED AND NO ADDITIONAL COMPENSATION WAS FOUND TO BE DUE. ATTACHED TO THE REPORT WAS A COPY OF LETTER ADDRESSED TO YOU FROM THE CHARLESTON NAVAL SHIPYARD. WHICH READS IN PART AS FOLLOWS: "FOR YOUR INFORMATION THE DATES AND STATUS OF THE REMAINDER OF YOUR PERIOD OF EMPLOYMENT IS AS FOLLOWS: TABLE MARCH 2.

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B-128345, JUL. 18, 1956

TO MR. J. B. MCGRAW:

RECEIPT IS ACKNOWLEDGED OF YOUR RECENT LETTERS WITH FURTHER REFERENCE TO OUR SETTLEMENT OF APRIL 17, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR ONE DAY'S WORK STATED TO HAVE BEEN PERFORMED ON OR ABOUT APRIL 15, 1946, AND FOR RETROACTIVE NIGHT DIFFERENTIAL PAY FOR SERVICES RENDERED DURING WORLD WAR II AS A PER DIEM EMPLOYEE OF THE CHARLESTON NAVAL SHIPYARD, UNITED STATES NAVAL BASE, CHARLESTON, SOUTH CAROLINA.

PRIOR TO THE RELEASE OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM A REPORT WAS RECEIVED HERE FROM CHARLESTON NAVAL SHIPYARD SHOWING THAT YOUR ACCOUNT HAD BEEN EXAMINED AND NO ADDITIONAL COMPENSATION WAS FOUND TO BE DUE. ATTACHED TO THE REPORT WAS A COPY OF LETTER ADDRESSED TO YOU FROM THE CHARLESTON NAVAL SHIPYARD, DATED DECEMBER 1, 1954, WHICH READS IN PART AS FOLLOWS:

"FOR YOUR INFORMATION THE DATES AND STATUS OF THE REMAINDER OF YOUR PERIOD OF EMPLOYMENT IS AS FOLLOWS:

TABLE

MARCH 2, 1946 THROUGH APRIL 14, 1946 SICK LEAVE

APRIL 15, 1946 THROUGH JANUARY 3, 1947 LEAVE WITHOUT PAY

JANUARY 4, 1947 THROUGH PAID 345 HOURS LUMP

MARCH 6 (1 HR), 1947 SUM LEAVE ON PAYROLLS

OF JANUARY 13-19, 1947

"PAYMENT OF RETROACTIVE NIGHT SHIFT WAS MADE BY CHECK NO. 3290254 IN THE AMOUNT OF $25.44 ON SPECIAL PAYROLL OF JANUARY 3-10, 1947 COVERING PERIODS 1943 AND 1944. THE EXACT DATES ARE NOT AVAILABLE IN THE COMPTROLLER DEPARTMENT, THIS SHIPYARD.'

ASSUMING THE CORRECTNESS OF THE ABOVE-QUOTED OFFICIAL RECORD, WE ARE WARRANTED IN CONCLUDING THAT YOU WERE PAID FOR ALL REGULAR SERVICE INCLUDING NIGHT DIFFERENTIAL DURING THE PERIOD OF YOUR EMPLOYMENT. THAT REGARD THE RULE IS WELL ESTABLISHED AND LONG FOLLOWED BY GOVERNMENT ACCOUNTING OFFICES THAT IN THE EVENT OF A DISAGREEMENT BETWEEN THE FACTS STATED BY A CLAIMANT AND THOSE REPORTED BY THE ADMINISTRATIVE OFFICE CONCERNED, THE LATTER MUST BE ACCEPTED AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF OFFICIAL RECORDS. NO SUCH EVIDENCE HAS BEEN PRESENTED BY YOU OR ON YOUR BEHALF.

ASIDE FROM THE FACT THAT THE NECESSARY EVIDENCE IS LACKING TO SUPPORT YOUR CLAIM, OUR AUTHORITY TO CONSIDER IT IS GOVERNED BY SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH READS IN PERTINENT PART AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

YOUR CLAIM FOR THE ITEMS REFERRED TO FIRST WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 26, 1955, AND UNLESS YOUR CASE FALLS WITHIN THE PURVIEW OF THE PROVISO OF THE STATUTE RELATING TO SERVICE IN THE MILITARY OR NAVAL FORCES, IT IS BARRED FROM ALLOWANCE BY THE ABOVE QUOTED LAW.

IN FURTHER REGARD TO YOUR CLAIM FOR NIGHT DIFFERENTIAL, REPORTED AS PAID BY THE DEPARTMENT OF THE NAVY, APPARENTLY UNDER THE ACT OF JULY 31, 1946, 60 STAT. 747, YOUR ATTENTION IS CALLED TO THE PERIOD OF LIMITATION APPEARING IN SECTION 3 (B) OF THAT STATUTE WHICH READS AS FOLLOWS:

"NO AMOUNT SHALL BE CERTIFIED FOR PAYMENT UNDER SECTION 2 OF THIS ACT UNLESS APPLICATION SHALL HAVE BEEN SUBMITTED IN WRITING, PRIOR TO THE EXPIRATION OF TWO YEARS AFTER THE DATE OF APPROVAL OF THIS ACT, OVER THE SIGNATURE OF THE PERSON PERFORMING THE SERVICE * * *.'

THE QUOTED LANGUAGE WOULD PRECLUDE CERTIFICATION FOR PAYMENT BY THE DEPARTMENT OF THE NAVY OF YOUR CLAIM FOR NIGHT PAY UNLESS IT WAS RECEIVED BY THAT DEPARTMENT PRIOR TO MIDNIGHT, JULY 31, 1948. 28 COMP. GEN. 524.

ON THE BASIS OF THE PRESENT RECORD AND FOR THE REASONS HEREINABOVE STATED, NO AUTHORITY IS FOUND FOR ALLOWING YOU ADDITIONAL COMPENSATION AS CLAIMED. ACCORDINGLY, THE SETTLEMENT OF APRIL 17, 1956, MUST BE SUSTAINED.

IT IS NOTED THAT ON AT LEAST TWO OCCASIONS OUR LETTERS TO YOU HAVE CONTAINED REFERENCE TO A DECISION RENDERED BY THE COURT OF CLAIMS DATED JULY 12, 1955, INVOLVING THE CASE OF ALFRED C. BERGH, ET AL., V. THE UNITED STATES, COURT OF CLAIMS NO. 269-52. IN THAT CASE IT WAS HELD THAT THE PLAINTIFF WAS ENTITLED TO AN EXTRA DAY'S PAY OR HOLIDAY GRATUITY PAY IN ADDITION TO HIS REGULAR PAY FOR FOUR HOLIDAYS, NAMELY, JANUARY 1, FEBRUARY 22, MAY 30 AND JULY 4, 1945, ON WHICH HE WAS REQUIRED TO WORK. REVIEW OF THE CITED DECISION NOW IS PENDING BEFORE THE SUPREME COURT OF THE UNITED STATES. IF THE SUPREME COURT SHOULD RULE IN FAVOR OF THE EMPLOYEE IT WILL STILL BE NECESSARY TO DETERMINE WHETHER THE JUDGMENT IS APPLICABLE TO YOUR CLAIM SINCE YOU ARE NOT A PARTY PLAINTIFF TO THE BERGH CASE.

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