B-142063, JAN. 23, 1962

B-142063, JAN. 23, 1962

TO MR. SERVILLANO T. PANGILINAN:

YOUR LETTER OF AUGUST 11, 1961, REQUESTS THAT WE RECONSIDER OUR DECISION OF NOVEMBER 17, 1960, B-142063, TO YOU, DISALLOWING YOUR PER DIEM CLAIM FOR THE PERIOD FEBRUARY 2 THROUGH DECEMBER 31, 1958, WHILE PERFORMING DUTY AT THE MANILA AIR STATION, PHILIPPINES, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE. YOU ALSO PRESENT ADDITIONAL CLAIMS AGAINST THE GOVERNMENT INCIDENT TO SUCH EMPLOYMENT.

YOU CLAIM $6,604.76 FOR 506 1/2 DAYS ANNUAL AND SICK LEAVE FROM 1941 TO 1959; TERMINAL PAY UNDER PHILIPPINE LAW; 3,466.75 PESOS BASED UPON A MORE FAVORABLE EXCHANGE RATE UPON THE CHECK ISSUED TO YOU FOR REFUND OF RETIREMENT DEDUCTIONS UPON SEPARATION FROM THE SERVICE; $34.94 REFUND FROM THE INTERNAL REVENUE SERVICE OF WITHHOLDING TAX; $5,120 FOR PER DIEM ALLOWANCES; AND $25,000 FOR CIVIL AND MORAL DAMAGES.

WE REQUESTED A REPORT FROM THE DEPARTMENT OF THE AIR FORCE SHOWING YOUR LEAVE ACCRUALS AND PAYMENTS MADE TO YOU UPON SEPARATION BECAUSE OF A REDUCTION IN FORCE ON MARCH 28, 1959. THE REPORT HAS NOW BEEN RECEIVED.

THE REPORT SAYS THAT UNDER ADMINISTRATIVE REGULATIONS IN EFFECT AT THE TIME OF YOUR SEPARATION IN 1959 NON-U.S. CITIZENS EMPLOYED IN THE PHILIPPINES EARNED 13 DAYS LEAVE PER YEAR. THIS LEAVE WAS AVAILABLE FOR USE FOR ABSENCES BECAUSE OF ILLNESS AND VACATION LEAVE. UNUSED LEAVE COULD BE ACCUMULATED TO A MAXIMUM OF 30 DAYS AND EMPLOYEES WERE ENTITLED TO A LUMP SUM PAYMENT UPON SEPARATION UP TO THE MAXIMUM 30 DAY LIMITATION. THERE WAS NO SEPARATE PROVISION FOR SICK LEAVE.

THE FILIPINO EMPLOYMENT POLICY INSTRUCTION, EFFECTIVE MAY 14, 1961, REFERRED TO BY YOU, LIBERALIZED THE LEAVE BENEFITS FOR NON-U.S. CITIZENS EMPLOYED IN THE PHILIPPINES. EMPLOYEES WITH LESS THAN THREE YEARS OF SERVICE NOW EARN 13 DAYS ANNUAL LEAVE EACH YEAR AND THOSE WITH THREE OR MORE YEARS OF SERVICE NOW EARN 20 DAYS ANNUAL LEAVE EACH YEAR WITH A 30- DAY MAXIMUM ACCUMULATION. IN ADDITION ALL EMPLOYEES, REGARDLESS OF LENGTH OF SERVICE EARN 13 DAYS SICK LEAVE PER YEAR WITHOUT LIMITATION ON THE AMOUNT WHICH MAY BE ACCUMULATED. THE LIMITATION FOR THE LUMP SUM LEAVE PAYMENT REMAINS AT 30 DAYS ACCUMULATED LEAVE. THE LIBERALIZED BENEFITS PROVIDED BY THE INSTRUCTIONS ARE PROSPECTIVE AND NOT RETROACTIVE AND, THEREFORE, WERE NOT FOR APPLICATION AT THE TIME OF YOUR SEPARATION.

THE REPORT FURTHER STATES THAT THE SEPARATION LAW (R.S. 1787), WHICH YOU REFER TO WITH RESPECT TO YOUR CLAIM FOR TERMINAL PAY, IS A STATUTE OF THE REPUBLIC OF THE PHILIPPINES APPLICABLE TO COMMERCIAL, INDUSTRIAL, OR AGRICULTURAL ENTERPRISE AND HAS NEVER BEEN APPLIED BY THE UNITED STATES ARMED FORCES IN THE PHILIPPINES. THE FILIPINO EMPLOYMENT POLICY INSTRUCTION WAS DEVELOPED BY THE MILITARY DEPARTMENTS AFTER EXTENDED STUDY TO PROVIDE GREATER UNIFORMITY IN PERSONNEL PRACTICES AND TO CONFORM MORE CLOSELY BUT NOT IN COMPLIANCE WITH PHILIPPINE LABOR LAW AND PRACTICES. ALTHOUGH IT PROVIDES THE SAME NOTICE REQUIREMENTS TO EMPLOYEES SEPARATED UNDER REDUCTION IN FORCE ACTIONS AS THOSE PROVIDED FOR U.S. CITIZEN EMPLOYEES IT DOES NOT, HOWEVER, PROVIDE FOR SEPARATION PAY OTHER THAN THE LUMP SUM LEAVE PAYMENT.

THE RECORDS SHOWS YOU SERVED AS AN EMPLOYEE WITH VARIOUS UNITED STATES FORCES INCLUDING THE FAR EAST COMMAND FROM MARCH 21, 1945, TO NOVEMBER 18, 1950, PRIOR TO YOUR APPOINTMENT TO AN EXCEPTED POSITION WITH THE DEPARTMENT OF THE AIR FORCE AS OF NOVEMBER 19, 1950. THE ADMINISTRATIVE RECORDS ALSO SHOW THAT UPON SEPARATION FROM YOUR POSITION WITH THE FAR EAST COMMAND IN 1950 YOU WERE PAID A LUMP SUM OF $267.84 FOR 256 HOURS OF UNUSED ANNUAL LEAVE UNDER THE REGULATIONS OF THE COMMAND. UPON SEPARATION FROM THE AIR FORCE IN 1959 YOU RECEIVED A LUMP SUM PAYMENT OF $403.74 FOR 240 HOURS ANNUAL LEAVE PLUS 8 HOURS OF HOLIDAY PAY.

YOUR FURTHER CLAIM IS FOR THE DIFFERENCE IN FOREIGN EXCHANGE RATES ON THE CHECK FOR REFUND OF RETIREMENT FUND DEDUCTIONS MADE FROM YOUR COMPENSATION. YOU SAY THAT IF THE CHECK HAD NOT BEEN RESTRICTED YOU COULD HAVE RECEIVED A HIGHER EXCHANGE RATE. HOWEVER, THE REFUND CHECK IN THE AMOUNT OF $1,653.31 DATED JUNE 4, 1959, CIVIL SERVICE COMMISSION VOUCHER NUMBER 10944R DATED MAY 26, 1959 WHICH WAS MADE PAYABLE TO YOU AS PAYEE AND MAILED TO YOUR ADDRESS AT SAMPALOC, MANILA, WAS RESTRICTED FOR PAYMENT AT THE FIRST NATIONAL CITY BANK, MANILA BRANCH. WE UNDERSTAND THAT THIS PAYMENT WAS RESTRICTED UNDER THE REQUIREMENTS OF THE FOREIGN EXCHANGE PROVISIONS OF THE REPUBLIC OF THE PHILIPPINES, REPUBLIC ACT NO. 265, OTHERWISE KNOWN AS THE PHILIPPINE CENTRAL BANK ACT AND REGULATIONS ISSUED PURSUANT TO THAT ACT.

YOU ALSO CLAIM AN AMOUNT OF $34.94 FOR A REFUND OF 30 PERCENT WITHHOLDING TAX. UNDER THE PROVISIONS OF 26 U.S.C. 7801, 7802, AND 7805, THE INTERNAL REVENUE SERVICE, TREASURY DEPARTMENT, HAS EXCLUSIVE JURISDICTION FOR THE ADMINISTRATION AND ENFORCEMENT OF THE INTERNAL REVENUE LAWS AND ITS DECISIONS IN THESE MATTERS ARE NOT SUBJECT TO REVIEW BY OUR OFFICE. U.S.C. 6406.

YOU ALSO REQUEST THAT WE RECONSIDER OUR DECISION OF NOVEMBER 17, 1960, B- 142063, WHICH SUSTAINED THE ACTION OF OUR OFFICE IN DISALLOWING YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD FEBRUARY 2 THROUGH DECEMBER 31, 1958, WHILE PERFORMING DUTY AT THE MANILA AIR STATION, PHILIPPINES. THE FACTS PRESENTED IN YOUR LETTER OF AUGUST 11, 1961, WERE THOROUGHLY CONSIDERED IN THAT DECISION AND NO ADDITIONAL FACTS REGARDING YOUR CLAIM WERE PRESENTED. HOWEVER, IN LIGHT OF YOUR LETTER, WE HAVE AGAIN EXAMINED YOUR CLAIM AND SUCH FURTHER REEXAMINATION DISCLOSES NO PROPER BASIS FOR CHANGING THE CONCLUSION HERETOFORE REACHED IN THE MATTER.

YOUR ADDITIONAL CLAIM OF $25,000 FOR CIVIL AND MORAL DAMAGES WHICH YOU SAY RESULTED FROM PAYMENT OF INTEREST ON BORROWED MONEY WHILE IN AN UNEMPLOYMENT STATUS WHILE AWAITING A REFUND CHECK AND FOR INCURRING MENTAL ANGUISH IS OF A PERSONAL NATURE. WE KNOW OF NO STATUTORY AUTHORITY THAT MAY BE VIEWED AS PURPORTING TO OBLIGATE THE GOVERNMENT TO PAY CLAIMS OF THIS NATURE.

THEREFORE, NO ADDITIONAL SUM IS DUE YOU COVERING THE CLAIMS PRESENTED.