B-140994, NOV. 20, 1959

B-140994, NOV. 20, 1959

TO MR. FELIPE L. ESCANER:

YOUR LETTER OF OCTOBER 2, 1959, REQUESTS RECONSIDERATION OF PART OF OUR OFFICE SETTLEMENT OF JUNE 19, 1959, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION AND BENEFITS AS AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF THE ARMY, TRANSPORTATION CORPS, FROM JUNE 28, 1946, TO NOVEMBER 21, 1955. THE PART OF YOUR CLAIM THAT PERTAINED TO THE PERIOD PRIOR TO DECEMBER 5, 1948, WAS DISALLOWED BECAUSE OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH BARS CONSIDERATION OF A CLAIM NOT RECEIVED IN OUR OFFICE WITHIN TEN YEARS AFTER THE CLAIM FIRST ACCRUED. THE REMAINDER OF YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORDS AND ADMINISTRATIVE REPORT FURNISHED BY THE DEPARTMENT CONCERNED SHOWED THAT YOU WERE CORRECTLY PAID THROUGH THE DATE OF YOUR SEPARATION. RECONSIDERATION IS REQUESTED OF THAT PORTION OF THE DISALLOWANCE WHICH RELATES TO ADDITIONAL OVERTIME COMPENSATION AND WAR BONUS WHICH ARE CLAIMED TO BE DUE FOR THE PERIOD FROM DECEMBER 5, 1948, THROUGH THE TIME OF SEPARATION ON NOVEMBER 21, 1955.

THE RECORD INDICATES THAT YOU SERVED AS A CIVILIAN EMPLOYEE OF THE U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION CORPS, FROM JUNE 28, 1946, TO NOVEMBER 21, 1955, WHEN YOU WERE SEPARATED FROM THE SERVICE. DURING THE PERIOD REFERRED TO, YOU SERVED IN VARIOUS CAPACITIES ON VESSELS OPERATED BY THE UNITED STATES.

UNDER SECTION 606 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 304, AS AMENDED, 5 U.S.C. 946, OFFICERS AND EMPLOYEES OF THE TRANSPORTATION CORPS OF THE ARMY SERVING ON VESSELS OPERATED BY THE UNITED STATES "MAY BE COMPENSATED IN ACCORDANCE WITH THE WAGE PRACTICES OF THE MARITIME INDUSTRY.' THE DEPARTMENT OF THE ARMY UNDER THE AUTHORITY OF SECTION 606, SUPRA, ADMINISTRATIVELY FIXES AND ADJUSTS THE COMPENSATION OF OFFICERS AND EMPLOYEES SERVING ON ITS VESSELS IN ACCORDANCE WITH THE PRACTICE OF THE MARITIME INDUSTRY. THE APPLICABLE REGULATIONS PROMULGATED BY THE DEPARTMENT OF THE ARMY ARE TO BE FOUND IN THE MARINE PERSONNEL REGULATIONS.

THE DEPARTMENT OF THE ARMY FURNISHED OUR OFFICE A REPORT THAT THERE IS NO BASIS FOR YOUR CLAIM FOR ADDITIONAL OVERTIME AND WAR BONUS SINCE YOUR PAY RECORDS SHOW THAT YOU RECEIVED OVERTIME PAYMENTS FOR EACH PAY PERIOD AS IT WAS REPEATED BY THE MASTER OF THE SHIP, AND THE MASTERS OF THE VARIOUS SHIPS NEVER REPORTED IN THEIR TIME SHEETS THAT THE SHIPS WERE IN WAR WATERS.

IN YOUR REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE YOU ASSERT THAT YOU WORKED OVERTIME HOURS IN EXCESS OF THE AMOUNT INDICATED BY YOUR PAY RECORDS. YOU ALSO DISPUTE THE ADMINISTRATIVE FINDING OF FACT THAT YOU DID NOT SERVE ON VESSELS OPERATING IN WAR WATERS.

IN THE FURTHERANCE OF A CLAIM COGNIZABLE BY OUR OFFICE UNDER THE LAW, IT IS INCUMBENT UPON THE CLAIMANT TO ESTABLISH BY PROPER EVIDENCE THAT THE CLAIM IS DUE AND PAYABLE. MOREOVER, WHEN THERE IS A CONFLICT BETWEEN THE FACTS ALLEGED BY A CLAIMANT AND THE FACTS ADMINISTRATIVELY REPORTED AS VERIFIED FROM THE OFFICIAL RECORD, OUR CONCLUSIONS NECESSARILY MUST BE BASED UPON THE OFFICIAL WRITTEN RECORD, WHICH RECORD IS PRESUMED TO BE CORRECT IN THE ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY. SEE B-139590, JULY 10, 1959 (COPY ENCLOSED). THE INFORMATION YOU HAVE FURNISHED US IS NOT SUFFICIENT TO JUSTIFY A DETERMINATION BY OUR OFFICE THAT THE ADMINISTRATIVE REPORT IS INCORRECT OR THAT YOUR CLAIM IS ALLOWABLE.