JULY 22, 1921, 1 COMP. GEN. 29

JULY 22, 1921, 1 COMP. GEN. 29

PAY OF ENLISTED MEN OF THE ARMY DETAILED TO ROAD WORK IN ORDER TO BE ENTITLED TO THE BENEFITS OF THE ACT OF FEBRUARY 28, 1919 40 STAT., 1202, EQUALIZING THE PAY OF OFFICERS AND ENLISTED MEN OF THE ARMY DETAILED TO ROAD WORK DURING THE WORLD WAR TO CONFORM TO THE COMPENSATION PAID TO CIVILIAN EMPLOYEES IN THE SAME OR LIKE EMPLOYMENT, IT WAS NOT NECESSARILY ESSENTIAL THAT AN ENLISTED MAN ACTUALLY WORK WITH A SHOVEL, BUT TIME SPENT IN OTHER KINDS OF LABOR, SUCH AS DRIVING A TRUCK AND LOADING CEMENT, WHICH WAS PAID FOR AT THE SAME RATE BY THE CIVILIAN CONTRACTORS, MAY BE INCLUDED. IN THE ABSENCE OF ANY DETAILED RECORDS OF THE VARIOUS CLASSES OF ROAD WORK TO WHICH THE PERSONNEL OF THE ARMY WERE DETAILED DURING THE WORLD WAR, THE PERIOD THEY WERE ENGAGED ON ROAD WORK FOR WHICH THEY WERE ENTITLED TO THE SAME PAY GIVEN CIVILIAN EMPLOYEES IN THE SAME OR LIKE EMPLOYMENT, UNDER PROVISIONS OF THE ACT OF FEBRUARY 28, 1919, 40 STAT., 1202, MUST BE DETERMINED BY DEDUCTING FROM THE PERIOD THEY WERE PRESENT WITH THEIR ORGANIZATION WHILE ENGAGED ON ROAD WORK THE NUMBER OF DAYS IT IS NOW KNOWN THEY WERE NOT ENGAGED ON SUCH WORK, INCLUDING IN SUCH DEDUCTIONS SUNDAYS AND HOLIDAYS, FATIGUE AND KITCHEN-POLICE DUTY, RAINY DAYS, AND FURLOUGH. FROM THE TOTAL CIVILIAN PAY FOR THE REMAINING DAYS MUST ALSO BE DEDUCTED THE MAN'S PAY AS A SOLDIER FOR THE SAME PERIOD.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 22, 1921:

ROSCOE C. BUCKNER APPLIED FEBRUARY 11, 1921, FOR REVISION OF THE ACTION OF THE AUDITOR FOR THE STATE AND OTHER DEPARTMENTS IN DISALLOWING BY SETTLEMENT, CERTIFICATE NO. 22277, DATED JUNE 21, 1920, HIS CLAIM FOR $1,154.72, UNDER SECTION 9 OF THE ACT OF FEBRUARY 28, 1919, 40 STAT., 1202, THE ALLEGED DIFFERENCE BETWEEN THE AMOUNT PAID HIM AS A PRIVATE, 553D COMPANY, MOTOR TRANSPORT CORPS, U.S. ARMY, AND THE WAGES PAID CIVILIAN EMPLOYEES RENDERING THE SAME, OR LIKE, SERVICES AS HIMSELF WHILE THE COMPANY WAS DETAILED FOR WORK ON THE ALEXANDRIA-CAMP HUMPHREYS (VA.) , RURAL POST ROAD, AUGUST 25, 1918, TO FEBRUARY 25, 1919. CLAIMANT ALLEGES HE IS ENTITLED TO THIS DIFFERENCE IN PAY BECAUSE HE WORKED WITH PICK AND SHOVEL GRADING THE ROAD EXCEPT FOR A PERIOD OF TWO WEEKS WHEN HE WAS DRIVING A TRUCK AND LOADING CEMENT.

FROM DATA GLEANED FROM THE RECORDS AND FROM INFORMATION DEVELOPED BY THIS OFFICE IT APPEARS THAT THE CLAIMANT ACTUALLY PERFORMED ROAD WORK AS ALLEGED AND AS DISTINGUISHED FROM PERFORMANCE OF THE MILITARY DUTY OF HIS GRADE, SO THAT THE QUESTIONS AT ISSUE ARE THE DETERMINATION OF THE DEFINITE NUMBER OF DAYS HE WAS SO EMPLOYED AND THE AMOUNT OF EXTRA PAY HE SHOULD BE ALLOWED THEREFOR. WHILE THE RECORDS DO NOT SHOW THAT HIS WORK OF THE ROAD INCLUDED DRIVING A TRUCK AND LOADING CEMENT, YET THIS POINT MAY BE CONCEDED, AS IT DOES NOT AFFECT THE AMOUNT OF TIME ALLOWABLE AND AS BOTH KINDS OF LABOR WERE PAID FOR AT THE SAME RATE BY THE CIVILIAN CONTRACTORS WHO CONSTRUCTED THE ROAD.

THE ACT PROVIDES:

* * *. THAT WHEN ANY OFFICER OR ENLISTED MAN IN THE ARMY, THE NAVY, OR THE MARINE CORPS SHALL HAVE BEEN OR MAY BE IN THE FUTURE DETAILED FOR LABOR IN THE BUILDING OF ROADS OR OTHER HIGHWAY CONSTRUCTION OR REPAIR WORK (OTHER THAN ROADS WITHIN THE LIMITS OF CANTONMENTS OR MILITARY RESERVATIONS IN THE SEVERAL STATES), DURING THE EXISTING WAR, THE PAY OF SUCH OFFICER OR ENLISTED MAN SHALL BE EQUALIZED TO CONFORM TO THE COMPENSATION PAID TO CIVILIAN EMPLOYEES IN THE SAME OR LIKE EMPLOYMENT AND THE AMOUNT FOUND TO BE DUE SUCH OFFICERS, SOLDIERS, SAILORS, OR MARINES, LESS THE AMOUNT OF HIS PAY AS SUCH OFFICER, SOLDIER, SAILOR, OR MARINE, SHALL BE PAID TO HIM FROM THE 1920 APPROPRIATION HEREIN ALLOTTED TO THE STATES WHEREIN SUCH HIGHWAY CONSTRUCTION OR REPAIR WORK WAS OR WILL BE PERFORMED.

THE AUDITOR IN HIS LETTER OF DISALLOWANCE STATES THAT HE DISALLOWED THE CLAIM NOT BECAUSE HE BELIEVED THAT NO EXTRA COMPENSATION WAS DUE THE CLAIMANT FOR WORK DONE ON THE ROAD BUT BECAUSE HE (THE AUDITOR) WAS UNABLE TO DETERMINE FROM THE FACTS BEFORE HIM THE AMOUNT OF SUCH COMPENSATION. THIS WAS DUE TO THE FACT THAT THE ACT WAS MADE RETROACTIVE AND WHILE THE USUAL MILITARY RECORDS APPEAR TO HAVE BEEN KEPT BY THIS UNIT, YET PRIOR TO THE APPROVAL OF THE ACT NO PRETENSE WAS MADE BY IT, OR BY THE WAR DEPARTMENT, OF KEEPING A DETAILED RECORD OF THE VARIOUS CLASSES OF ROAD WORK TO WHICH THE MEMBERS OF THIS OR SIMILAR UNITS WERE ASSIGNED NOR OF THE TIME THEY WERE EMPLOYED THEREON. THE ABSENCE OF SUCH RECORDS NECESSARILY REQUIRES THAT THE TIME OF THE CLAIMANT BE DETERMINED BY DEDUCTING FROM THE PERIOD HE WAS PRESENT WITH HIS ORGANIZATION, WHILE IT WAS DETAILED ON ROAD WORK, THE NUMBER OF DAYS IT IS NOW KNOWN HE WAS NOT ENGAGED ON SUCH WORK.

THE CLAIMANT ORIGINALLY ASKED EXTRA PAY FOR WORK AGGREGATING 291 1/2 DAYS OF EIGHT HOURS EACH AT $5 PER DAY DURING THE PERIOD AUGUST 15, 1918, TO MARCH 15, 1919, BUT LATER ACKNOWLEDGED THAT THIS WAS MERELY AN ESTIMATE ON HIS PART AND CHANGED THE PERIOD TO READ AUGUST 25, 1918, TO FEBRUARY 25, 1919, WHICH IS IN ACCORDANCE WITH THE RECORDS. IT HAS BEEN FOUND UPON INVESTIGATION THAT FROM THE 185 CALENDAR DAYS CONTAINED IN THE LATTER PERIOD MUST BE DEDUCTED 59 1/2 DAYS ON ACCOUNT OF SUNDAYS AND HOLIDAYS, FATIGUE AND KITCHEN-POLICE DUTY, RAINY DAYS, AND FURLOUGH, LEAVING 125 1/2 WORKING DAYS, FOR WHICH PAY IS ALLOWABLE ON THE BASIS OF AN EIGHT-HOUR DAY, SINCE THE RECORDS SHOW THAT THE CLAIMANT DID NOT AVERAGE MORE THAN EIGHT HOURS PER DAY "STRAIGHT TIME.'

THERE MUST ALSO BE DEDUCTED CLAIMANT'S MONTHLY PAY AS A SOLDIER FOR THE DAYS HE ACTUALLY WORKED ON THE ROAD, IT BEING ASSUMED THAT ON THE DAYS HE DID NOT DO ROAD WORK HE WAS ENGAGED IN THE PERFORMANCE OF HIS NORMAL DUTIES AS A PRIVATE OF THE MILITARY ORGANIZATION TO WHICH HE BELONGED.

INQUIRY HAS SHOWN THAT THE CONTRACTORS' RATE OF PAY FOR CIVILIAN LABOR ON THE ROAD WAS 40 CENTS PER HOUR TO NOVEMBER 13, 1918, AND 45 CENTS PER HOUR AFTER THAT DATE. THE AMOUNT, THEREFORE, PROPERLY DUE THE CLAIMANT IS AS FOLLOWS: 56 1/2 DAYS AT $3.20 PER 8-HOUR DAY------ --------------- $180.80 69 DAYS AT $3.60 PER 8-HOUR DAY--------------- ---------- 248.40

TOTAL CIVILIAN PAY---------------------------------- 429.20

DEDUCTIONS SOLDIER'S PAY, 4 2 1/2/30 MONTHS, AT $30 PER MONTH------- 122.50

NET AMOUNT DUE CLAIMANT----------------------------- 306.70

THE ACTION OF THE AUDITOR UPON REVISION IS REVERSED AND A CERTIFICATE OF DIFFERENCES WILL ISSUE FOR THE AMOUNT FOUND DUE THE CLAIMANT. IN THIS CONNECTION SEE 27 COMP. DEC., 637.

ANY DECISION OF THE ACCOUNTING OFFICERS CONTRARY TO THE VIEWS EXPRESSED HEREIN IS OVERRULED.