B-125651, NOV. 9, 1955

B-125651, NOV. 9, 1955

TO MR. ARTHUR S. JOHNSON:

YOUR LETTER OF SEPTEMBER 16, 1955, REQUESTS RECONSIDERATION OF SETTLEMENT OF AUGUST 4, 1955, WHICH DISALLOWED YOUR CLAIM FOR SALARY FOR THE PERIOD FEBRUARY 24 TO JUNE 10, 1953, AND PAYMENT OF ANNUAL LEAVE ALLEGED TO BE DUE AS AN EMPLOYEE OF THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) FAR EAST COMMAND, JAPAN.

THE RECORD SHOWS THAT YOU ENTERED INTO AN EMPLOYMENT CONTRACT EFFECTIVE MAY 25, 1951, WITH THE UNITED STATES GOVERNMENT TO SERVE FOR A PERIOD OF ONE YEAR AT THE FAR EAST COMMAND, UNLESS SOONER RELIEVED AT THE PLEASURE OF THE GOVERNMENT. ON MAY 2, 1952, THE CONTRACT WAS EXTENDED FOR A PERIOD OF SIX MONTHS, AND ON NOVEMBER 17, 1952, IT WAS FURTHER EXTENDED FOR THE PERIOD DECEMBER 11, 1952, TO JUNE 10, 1953. YOU WERE ADMITTED TO THE 155TH BASE HOSPITAL IN YOKOHAMA, JAPAN, ON JANUARY 23, 1953, AND AFTER YOUR RELEASE FROM THE HOSPITAL YOU WERE RETURNED TO THE UNITED STATES. EFFECTIVE FEBRUARY 23, 1955, YOUR SERVICES WERE TERMINATED.

THE DISALLOWANCE OF YOUR CLAIM WAS PREDICATED PRIMARILY UPON PARAGRAPHS 1 AND 14 OF YOUR EMPLOYMENT AGREEMENT WHICH PROVIDED FOR YOUR RELIEF FROM DUTY AT THE PLEASURE OF THE GOVERNMENT IN WHICH EVENT YOUR RIGHTS THEREUNDER WERE TO TERMINATE AFTER ARRIVAL AT POINT OF HIRE IN THE UNITED STATES. IN VIEW OF SUCH PROVISIONS IT WAS STATED THAT THE REASON GIVEN FOR TERMINATION (EXPIRATION OF CONTRACT) WAS IMMATERIAL.

IT APPEARS TO BE YOUR CONTENTION THAT IN CONSIDERING THE EMPLOYMENT CONTRACT IT MUST BE CONSTRUED IN ITS ENTIRETY, AND UNDER PARAGRAPH 7 YOU WOULD BE ENTITLED TO COMPENSATION AND ANNUAL LEAVE FOR THE PERIOD IN QUESTION, SINCE YOU STATE YOU HAVE BEEN, AND STILL ARE, RECEIVING MEDICAL TREATMENT FROM THE DATE YOU WERE SEPARATED FROM THE SERVICE, AS THE RESULT OF THE ILLNESS WHICH YOU CONTRACTED IN THE SERVICE.

PARAGRAPH 7 OF THE EMPLOYMENT AGREEMENT PROVIDES THAT THE GOVERNMENT WILL FURNISH FREE MEDICAL TREATMENT AND HOSPITALIZATION FOR ILLNESS CONTRACTED WHILE WORKING FOR THE GOVERNMENT. IT ALSO PROVIDES THAT SUCH MEDICAL TREATMENT OR HOSPITALIZATION WILL NOT BE CONTINUED IF THE DISABILITY RESULTING FROM SUCH ILLNESS CANNOT BE MATERIALLY IMPROVED BY FURTHER TREATMENT OR HOSPITALIZATION, AND, IN THIS EVENT, THE GOVERNMENT MAY TERMINATE THE CONTRACT IN WRITING.

PARAGRAPH 15 PROVIDES IN PERTINENT PART AS FOLLOWS:

"15. THE PROVISIONS HEREIN CONTAINED SHALL BE DEEMED TO INCLUDE AND BE THE EQUIVALENT OF PREVAILING EMPLOYMENT CONDITIONS IN THE MARITIME INDUSTRY AND WILL BE INTERPRETED IN THE LIGHT OF MARINE PERSONNEL REGULATIONS OF THE WAR DEPARTMENT, WHICH WILL BE BINDING UPON THE EMPLOYEE, NOTWITHSTANDING ANY PROVISIONS IN THE CONTRACT TO THE CONTRARY.'

REGULATION NO. 13 OF THE MARINE PERSONNEL REGULATIONS, DEPARTMENT OF THE ARMY, WHICH HAS TO DO WITH MEDICAL CARE OF CIVILIAN MARINE PERSONNEL ENGAGED ON VESSELS OPERATED BY AND UNDER THE JURISDICTION OF THE CHIEF OF TRANSPORTATION PROVIDES IN PART IN SECTION 2, PARAGRAPH 132.6, WITH RESPECT TO THE COMPUTATION OF WAGES FOR A PERIOD OF ILLNESS OR INJURY, AS FOLLOWS:

"A. THE BASIC WAGES WILL CONTINUE PAYABLE ONLY UNTIL THE CONCLUSION OF THE VOYAGE HAD THE SEAMAN CONTINUED TO SERVE UPON THE VESSEL OR UNTIL HE RETURNS TO THE CONTINENTAL LIMITS OF THE UNITED STATES, WHICHEVER IS SOONER. * * *

"B. IN GENERAL, FINAL PAYMENT OF WAGES DUE A SEAMAN FOR THE PERIOD OF ILLNESS OR INJURY WILL BE DEFERRED UNTIL ARRIVAL AT HIS PORT OF HIRE. * *

IN VIEW OF THE ABOVE-QUOTED REGULATIONS, EVEN IF YOU WERE NOT COMPLETELY CURED AT THE TIME OF YOUR RETURN TO THE UNITED STATES, AS ALLEGED BY YOU, IT APPEARS THAT THE ACTION OF THE DEPARTMENT OF THE ARMY IN TERMINATING YOUR SERVICES ON FEBRUARY 23, 1953, THE DATE OF ARRIVAL AT POINT OF HIRE (NEW ORLEANS) WAS CORRECT. SINCE YOU HAVE RECEIVED SALARY AND PAYMENT FOR ACCUMULATED LEAVE DUE YOU THROUGH FEBRUARY 23, 1953, THE DATE OF YOUR SEPARATION FROM THE SERVICE IN THE UNITED STATES, THERE IS NO AUTHORITY TO PAY YOU FOR SALARY OR FOR ANNUAL LEAVE FOR THE UNEXPIRED PERIOD OF YOUR SUPPLEMENTAL CONTRACT.

ACCORDINGLY, FOR THE FOREGOING REASONS AS WELL AS THOSE STATED IN THE SETTLEMENT OF AUGUST 4, 1955, THE DISALLOWANCE OF YOUR CLAIM APPEARS PROPER AND SUCH ACTION MUST BE SUSTAINED.