(Sanitized)APPEAL FOR PAYMENT OF COMPENSATORY OVERTIME

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01086A000900090015-9
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 25
• Document Creation Date: December 12, 2016
• Document Release Date: October 11, 2001
• Sequence Number: 15
• Publication Date: September 29, 1972
• Content Type: MF

moved For"'cease 2002/01./8q..-:PIA- RDP80B&01086AW0900090015-9
OGC Has
Xf 73-/09~
2 9 SEP 1972
MEMORANDUM FOR: Executive Director-Comptroller
- Appeal for Payment 25X1A
of Compensatory Overtime
REFERENCE: 10 May 72 Memo fr IG for DCI, Same
Subject
1. Upon a review of this case, I have determined that
the Agency should proceed to make a reasonable payment to
Mr. claim for unused compensatory time. It appears
to me that Mr. claim might be settled on the basis of
the number of verifiable hours worked in excess of 48 per work
week. I have not signed the proposed letter, however; rather,
I would like this settlement negotiated with Mr. - in a
fashion to protect the Agency to the extent possible.
2. I am aware that this may generate additional claims
which should be examined on a case-by-case basis to determine
both their merits and the precision of the documentation justifying
them.
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Drafted: ExDir-Compt RICHARD HELMS
Redrafted: SSA/DDS Director
Redrafted: OGC:LRH:jeb
cc: General Counsel
Inspector General
Director of Personnel
Director of Finance
DCI E 2 IMYPDET CL BY 056047
DDCI
/ER
DDS
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SENDER WILL CHECK CLASSIFICATION TOP AND BOTTOM
UNCLASSIFIED CONFIDENTIAL SECRET
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
DATE
INITIALS
ec rector
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ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
FILE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks
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FOLD HERE TO RETURN TO SENDER
FROM: NAME, ADDRESS AND PHONE NO.
DATE
DCI
22 Sep 72
AL
UNCLASSIFIED CONFIDENTI
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MEMORANDUM FOR: Inspector Den ral
SUBJECT
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1. I regret being somewhat difficult on this case, but lam concerneWX1 A
over its implication as a precedent ofd its possiblb triggering of other claims.
These are the same concerns I had in .d ri1 1$4 when we generated-
7321, which gave the Station authority act differently than the words of
the Regulation. Your point, noneth ,loss, has considerable validity as to
whether this action was approved a level which authorizes us now to say
that there was due approval of this exception to the Regulation promulgated5X1A
under the Director's authority.
2. On the other hand, there are weakness** also in Mr.
claim. I note that the Regulation states that accrued compensatory time
will be forfeited should an employee not use it within a specified time or
should he be transferred, in the absence of certification that his opportunity
to use it had been denied because of conditions "beyond the employee's con-
trol related to his Agency employment. " Your discussion in paragraphs 11
and 12 of your original paper seems to jump from the fact that he did not use
it and that other employees did not normally take compensatory time off in
Vietnam to an assumption that it "had been denied because of eenditions
beyond the employee' s control related to his Agency employme*t. " I am
not convinced that this follows to the degree you indicate, particularly since
Mr. apparent practice, at least in part, was to utilize annual
leave (which would have been forfeited under law) rather than compensatory
time during his family visitation travel (FVT).
3. In my view, therefore, we are faced with a situation with some
claim of right on both sides. I agree that a court might decide In favor of
Mr. but on the other hand, I also believe it might not. In this
situation, I would appreciate some further examination of the following:
a) A statement in dollar terms of what Mr.
would amount to.
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claim were made by the other employees affected by this situa-
tion, who have been dormant to date, but what Aght. be triggered
by a favorable decision in this case.
c) Examination of the possibility of a compromise solution to
this case through award of annual premium pay to Mr. IMEJEW. 25X1A
This of course was only authorized in Vietnam in 1968, but it
might be a reasonable compromise of our conflicting positions.
d) An estimate of the contingent liability of the .Agency should
annual premium pay be applied for by other employees under the
same circumstances as Mr. 25X1A
4. With this information in hand, we could then decide whether to
negotiate a compromise solution to this case with full knowledge of what
it might involve, as well as its alternatives. While I fully understand the
points made in the Inspector General' a and the General Counsel's review
of this case, I also believe it Important to reflect the basic approach taken
by the Congress in the special authorities given the Director and in the
special retirement system authorized under CIARDS, both of which expect
something more from CIA than the nine-to-five office service of normal
civil service employees. Vietnam was ,,& very special challenge and had to
be met by a very special reaction. The Agency met the challenge in an
outstanding fashion, but I feel it quite inappropriate to try to apply to that
situation the time and attendance regulations of Washington bureaucracy.
Most of our employees have served there without special plea; I believe
that careful handling of this cave is due them for the manner in which they
performed without looking for the small print ti; the Regulations.
b) A general estimate (as I know that no precise figure *W
be derived) of the contingent liability of the Agency if a similar
is/ W.
E. C0i' Y,
W. E. Colby
Executive Director-Comptroller
WEC:sfc
Distribution:
Original - Addressee
1 - General Counsel
1 - ExDir
,/1 - ER
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1EM1l.D' UM FOR: 3acutive Dirsctor--Comptroller
Appeal for Payment of
StiiSJ'LrCT
. ,*%peenaea- ery' Wise
O
; P'ENC : Your P4eeaemoramb as dated 12 dJ
1. We have made a farther review of Fg Division correspondence
with the Vietnam Station in an effort to turn up additional informa-
tion relating to d.iseeusiicnS on overtime and leave in Vietnam during
the 1965-1966 psr$.od. We have eels# talked with persons who eight have
been involved in these diseussionii at the time, i luding, in partiou-
lar, the then Chief of 8uppor't, F1.
2. The info ation that we have been able to find, both from the
files and from conversation* with the personnel, involved, confirms the
point made in your me raaaWdum that many officials in Headquarters were
aware of and in agreement with the `polieies and unions of the Vietnam
Station with respect to overtime and leave. The dispatch you cite,
~ T321, wee coordinated with the Office of th, Director of Fin*nee
b
y
and the Office of SSA/DDS outside F$ Divisiom. It was reel eearseedt
Chief of Support, F8 on behalf of Chief, FE. There is sore question,
however, whether this constituted competent authority to modify the
pertinent regulations, particularly when no action was taken subsaee-
quently to amend these regulations. HR we nest
reissued in ! ft rah 1968, but the paragraphs pertaining to o tins for
GS-11's and above were not changed. On the other hand, thee Office
of General C sel issued an opinion in Oetobor 1968, which was not
challenged at the time, which stated that
travened Agency' regulations. The claim for overtime payn*wt - also
a 'Vietnam case - which evoked the OOC opinion was subsequently paid
by the Agency.
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3. Lren if the approval of Station policies given by iea dquartors
dispatches did have the effect of a aaodifying or, superseding the regula--
tions in question, the question would then mt'i" whether the Headquar-
ters actions were themselves valid. In esseeneet, the Situation under
the Station policy was as follows: (1) all **perviaors in the Vietnam
Accir'rD BY__.Q
EXEMPT FROM GENERAL UECLASSIF ION
j.1''.GG SOURCES
I`'JpLVED
ARID
FIDE MB
OF E. 0. 11652, EXEMPTION CATEGORT.
? 56(1), (2) (3) or (4) (cirle one or more)
AUT ,AATIC ALLY GEuI:EuiF~EU ON
APPROVAL OF DCI _______
086AQO#NCP0u31'1t date or event)
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Station were under clear ,motions from the COO to man their offices
on a seven-day week; (2) t erviaors interpreted this literally and
ordered their key personnel on duty accordingly; (3) employees of 046e
or
-
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e were de
b
d
_
r
p ,...
?~
a
tip-J.J. an
diraeted overtime ()F) they were united by Station needs -
of compensatory tuns they could take off and (5) they Yen derived
of the opportunityty to receive eit psWxLwt or time Oft: uporn their
departure from Viet DAM. This was V*3AMt to telling an employee
that he had to work overtime, that b*,* ld not be paid for it, and
that his right to ecpensator r tit was a eontingeent, not an
absolute. right.
i
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4. There are other alternatives in the - case to pay
the claim now. We can deny his claim on the grouts that the Agency
is not bound by Federal legialotion OR leave and Overtime end that
ps uent of elaino such as Mr. is contrary to Age policy.
We can point out that somommoondid not take ezeeption to the policy 25X1 A
when he left Vietnam and th his long delay in filing ia~taiimamakes
it impossible for the Agere nomr to ascertain through
all the facts necessary fat an equitable decision. It . 11 25X1 A
accepts this position, the ease would be considered closed, If he
does not accept it, the Agency would still have W courses of cation
open. When Mr. pursued his *W z further, we eo-42A decide
to pay it thee, or we could contest it. and accept
are rise of draw-
verse decision in a court action. Although there to these alternatives, the Agency might er justified in giving
beaks -
theca serious consideration in vi4V of the issues involved.
5. This memorandum has been coordinated with the General Counsel.
.(Signed) William V. Bros
William V. Bxoe
Inspector General
cc: General Counsel
OIG: (17 July 1972)
Distribution:
Original - Addressee and return to OIG
1-ER / \
1 - IG Subject (Case No. 7/72)(w'~
1 - IG Chrono A
1 - JOL Chrono (w~~l
fin
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your claim for payment for usod compensatory overtime
that you accumulated during your assignment to Vietnam for 1966
to I9bg has been investigated by the Inspector General.
As a result of my revievi of the findings and recommendations
of the Inspector General, I have decided that you are entitled to
payment for properly approved overtime performed in Vietnam
which you were unable to use as compensatory time off. I have
accordingly instructed the proper authorities to contact you. In
order to advise you of what additional information may be required
from you to properly document y claim. You sbould hear from
them soon.
Sincerely.
Richard Helms
Director
cc: Office of Finance
Office of Personnel
Office of General Counsel
O/IG (9 May 72; retyped for change of address 24 Jul 72)
Distribution:
Orig - Adse
1 - Each as above
I-ER
:- O/DCI
2-O/IG(1w/h)
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TRANSMITTAL SLIP
To: ,~
ROOM NO. I I BUILDING
RO TENSION
F FORM O 24 I REPLACES FORM 36-8 (47)
WHICH MAY BE USED.
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MEMORANDUM FOR: Inspector General
SUBJECT I Appeal for Payment
of Compensatory Overtime
1. I would appreciate your giving some further consideration
to this case, in coordination with the General Counsel. As noted in
~ 7321 of 20 April 1966, Headquarters specifically advised the
Saigon Station that we concur with your recommendation that unused
compensatory time for personnel in grades GS-11 and above not be
certified for reimbursement or use on departure from the Station.'
It strikes me that this authorization casts some doubt on the basic
thesis of your report and General Counsel's comments that benefits
authorized by a Headquarters regulation were denied by a field action.
In this case the field action was apparently specifically authorized by
an official Headquarters communication.
2. Our location of this authorization stems from my own memory
of considerable discussion of this problem at about that time. While I
personally was probably the releasing official on this dispatch, or at
least was responsible for it, I believe there was a general discussion
of it with appropriate officials in Headquarters at the time. A. review
of the case could perhaps identify the degree to which the matter was
officially authorized at that time, which would have considerable bear-
ing on the case. Thus, without in any way predetermining the result of
your review, I would appreciate your taking a new look.
/s/ WEC
W. E. Colby
Executive Director- Comptroller
WEC:blp
Distribution:
Original - Addressee
1_- OGC
1_.4- ER
1 - ExDir
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18 May 1972
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MEMORANDUM FOR: Executive Director-Comptroller
SUBJECT: Appeal for
Payment of Compensatory Overtime
1-. You are quite correct in your memorandum of 15 May
1972 in saying that CIARDS is a special benefit provided to CIA
employees in recognition of the special demands made upon them
during qualifying service. The unusual demands, particularly
in the Field, on Agency employees for out-of-hours' and extra
hours' duty were one of the justifications for the CIARDS legis-
lation.. Also, the benefits of CIARDS have been taken into con-
sideration in writing some of the Agency regulations, such as those
applying to overtime.
2. The point involved in the and similar cases
is not a balancing of general interests, such as those mentioned
above, but the fact that a Headquarters regulation provided cer-
tain benefits which were in effect denied by th
It is our opinion that if this case were put before a court of law
the court would look at the basic properly authenticated regula-
tion, which would be the Headquarters regulation, and grant the
benefits provided therein regardless of the limitations.of the
subsidiary regulation. It is on this technical point that we believe
we have to accept Mr. documented claim for overtime.
LAWRENCE R. HOUSTON
General Counsel
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ER 72-2669/?
15 May 1972
MEMORANDUM FOR: General Counsel
SUBJECT : Mr. Appeal for P*yirent
of Compensatory Overtime
1. It occurs to me that your review of this case omits one very
significant point. When one of our officers is serving abroad, be is
accumulating 'qualifying service'' under CIARDS. CIARDS is a Special
benefit provided to CIA employees in recognition of the special demands
made upon them during qualifying service. It can be considered some-
what of an extra compensation for the special requirements of the
Agency, among which are certainly the irregular hours and extra de-
mands on our personnel's time, especially those of upper grades.
2. With this special legislative recognition of the special char-
acter of our service, I would think that the contention could be made
that overtime is an expected attribute of our service and is not corn-
pensated for in detail but rather in general by the special CIARDS
emoluments. I do not believe that the detail of whether an officer
actually meets the full qualifying service requirement in years, or has
already met it, need affect the general principle.
3. I would appreciate your comments.
/s/ WEC
W. E. Colby
Executive Director-Comptroller
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Attachment:
Distribution:
Original - Addressee
1 - ExDir
6)_ER
1 - IG
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lr+~J~kb a:~a~~J ~ 4~e.r
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SIC 1
1 0 rz:?.; 1972
IORASfDUM TO: The Director
DO A
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SUBJECT dir. Appeal for Payment of Compensa-
tory Overtime
1. a GS--12 Logistics Officer, retired from the Agency
on 28 May 1971, with over 24 years of Government service, 16 of which
were with CIA. Shortly before his retirement he submitted a request to
FE Division for payment for 2,478 hours of compensatory overtime he
claimed to have accumulated during a tour in Vietnam from August 1966 to
June 1968. FE Division advised Mr. -orally that his claim was
not payable since it was FE Division's and Saigon Station's policy that
accumulated compensatory time not used prior to reporting to Headquarters
PCS was forfeited. requested information on how to appeal
this decision and was referred to the Director of Personnel.
Deputy Director of Personnel, not with and reviewed with him
Vietnam Station policy concerning.payment for overtime.
asked that he be advised in writing of the rejection of his claim. He was
so advised by letter from Mr. Fisher, Director of Personnel, dated 9 June
1971, at which time he was advised of his right to request a review of
the decision by the Inspector General. On 5 February 1972,
filed his "claim against the Central Intelligence Agency for payment of
2,478 hours of compensatory time accrued while on tour in Vietnam," and
requested that the claim "receive the highest review."
Background Information
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2. entered on duty with CIA on 8 August 1955 as a GS-7,
Administrative Assistant in the Office of Logistics. He served in various
capacities with the Office of Logistics, including overseas assignments in
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Vietnam. He received good Fitness Reports through-
Out virtually his entire career in the?,ncy, including high praise
from numerous supervisors as a consacintious and productive officer.
He received a Quality Step Increase in 1967 for his contribution to the
Logistics mission of the Vietnam Station. His last Fitness Report
rating in Vietnam was Outstanding. He was promoted to GS--12 in November
1970.
3. The entire Station in Vietnam was on a seven--day workweek dur-
ing the period of Hr. assignment there. A Station Bulletin,
dated 30 June 1966, announced that "henceforth, it will be Station
policy to be so organized that we can function at an acceptable level
seven days a week, 24 hours a day." The Bulletin emphasized that "week-
ends and holidays are in no sense sacrosanct, although to the extent
possible we shall allow a more flexible schedule on holidays, Saturday
afternoons and Sundays." This policy was reemphasized in a Station
Bulletin, dated 23 August 1966, which referred to the earlier Bulletin
and asked all personnel to reread it. The notice vent on to say that
'this Station cannot function satisfactorily if Saturday afternoon and
Sunday are considered to be automatic leisure periods . " It concluded
that "since there will of necessity be requirements for many employees
to work on weekends, the Station will be as generous as our resources
permit in providing BOOR and Safehaven travel for all personnel in an
effort to provide an opportunity for rest, recreation, and visits to
families nearby.'`
4. Shortly before the above notices were issued, the Station issued
a dated 11 t4ay 1966, entitled "Leave Time
One purpose of this - was to establish the
procedure for recording the accrual and use of authorized compensatory
overtime. This stated that GB--1i'a and above would not be
reimbursed for overtime, except for hours as Duty Officer (this exception
was later rescinded). It provided for the donation of the first eight
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hours of overtime each week in accordance with Agency policy, and the
entry of all other overtime worked on a special record, along with any
leave taken against the compensatory time during a given period. The
Directive then stated: "Unused compensatory time for personnel in grades
GS--ll and above shall not be certified for reimbursement or use upon
departure from the Station."
5. The pertinent Agency regulations governing overtime are KR -
and During the period in question these regulations contained
the following provisions concerning compensatory overtime:
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6. One other regulation bearing on this case is HR R (with an iden-- 25X1 A
1A tical provision in _. Paragraph 2a(8) of this regulation provides
that "normally, the time authorized for travel, consultation, and leave
between assignments will be limited to 60 calendar days."
7. Pursuant to Station regulations, maintained a 25X1
record of his accrued overtime as well as of leave taken against it. The
info mation was recorded on the required Personnel Overtime Certification
1A Form and certified by supervisor at the end of the pay
1A
period. A copy of these forms was forwarded by the Station to Headquarters
in response to a request from Headquarters in December 1968 for compensatory
time balances for all employees who had already departed the Station. From
these forms and from other information available in Headquarters, we have
reconstructed leave record for the period in question. (The
original Duty Status Reports for the period have been destroyed, in ac-
cordance with Agency policy to destroy such records after three years.)
8. At the beginning of his tour in Vietnam, leave 25X1
balances were:
Annual. . . . . . . 334 hours
Sick . . . . . . . . 842 hours
Rome . . . . . . . . 14 days
During his assignment in Vietnam, accrued leave as follows: 25X1
Annual. . . . . . . 364 hours
Sick . . . . . . . . 192 hours
Home. . . . . . . . 26 days
Compensatory. . . .2722 hours (claimed)
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charged leave during his tour:
Annual. . . . . . . 21$ hours
Sick. . . . . . . . None
Compensatory. . . . 244 hours
forfeited 54 hours of annual leave in 1966 and 88 hours in
1967. On completion of his tour in may 1968, ook 40 days
home leave and 16 hours annual leave before reporting to his now assign-
ment at Headquarters in July 1968. His leave balances at that time were,
Annual . . . . . . . 424 hours
Sick. . . . . . . .1034 hours
Home. . . . . . . None
Compensatory. . . .2478 hours (claimed)
Analysis
9. It is evident from the Station issuances cited above that
d all other Agency employees in Vietnam were directed to
work overtime. The Chief of Station clearly had the authority to estab-
lish such hours of work under both Headquarters and Field Regulations.
10. Special leave provisions were established for personnel assigned
to Vietnam to give them relief from their arduous schedule and to enable
them to visit their families. It was anticipated that leave taken under
the Family Visitation Travel (FVT) Program would normally be charged to
compensatory time the employees had accrued. This would enable employees
to use their accrued compensatory overtime and let their annual leave
accumulate toward the maximum permitted by law. However, since it was
optional with the employee whether to charge annual leave or compensatory
time, those people who had already accumulated their maximum annual leave,
such as tended to charge at least some of their FVT to
annual leave. As paragraph 8 above shows, this is what did.
Despite this, forfeited annual leave each year he was in
Vietnam. Even if he had charged all the leave he took while in Vietnam to
compensatory time, would not have used all that he accrued.
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11. Since failed to use all his compensatory time while
he was assigned to Vietnam, the question arises whether this was due to
his own preference or whether he was prevented from doing so "because of
conditions related to his Organization employment" . We 25X1 P
have talked with a number of people who were in Vietnam during this period
in an effort to get a feel for the situation in the country at that time.
We have also talked with persons who knew and who were familiar 25X1P
with his work there. We were told that, although there was no order for-
bidding it, in-country leave was rarely taken. It was generally expected
that if an employee was in country he would be on duty. It was permitted
to take leave in Cher places in the area. For
the most part, such opportunities were utilized by unmarried personnel.
One senior officer who knew said that was a hard 25X1P
worker who rarely took leave except for M. supervisor in 25X1P
Vietnam, who is now in Washington, said that was a uniquely consci- 25X1P
entious person. Shortly after they arrived in Vietnam it became necessary
to take a complete inventory of all supplies and equipment in connection
with the change of the Vietnam Station from a Type II to a Type I installa-
tion. nd others worked far into the night for an extended
period on this project. had a very 25X1
busy schedule. Thus, while it was theoretically possible for employees
to take leave in addition to FVT, as a practical matter it was virtually
unheard of for conscientious employees like 25X1
12. also did not ask for an exception to HR- to permit 25X1
him to take more than 60 days between assignments upon his departure from
Vietnam and thus use up some of his compensatory time. For one thing, the
Station Directive quoted above expressly stated that unused compensatory
time would not be certified for use upon departure from Vietnam. Moreover,
although HR M is so worded as to allow for exceptions to the 60-day
limitation on time between assignments, in practice these exceptions have
been relatively rare. On the one hand, most receiving components plan
their personnel assignment changes on the assumption that the 60-day limit
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will be observed. Thus, if a returning employee has a job waiting for
him, the receiving office wants him there by a specified date. On the
other hand, many employees find it impractical, from the point of view
of cost or for other personal reasons, to take all the leave they have
accrued. The experience of the Office of Logistics has been consistent
with this pattern. We were informed that Logistics tries to make it
possible for its personnel to take up to 60 days if they so desire, but
that additional leave beyond this amount normally is approved only for
personal emergencies or other compelling reasons.
3.3. Summing up case, we find that (a) he was required
by Vietnam Station Directives to work many hours of overtime, (b) he was
prevented from taking compensatory time off because of the press of his
duties, and (c) he was denied either payment or use of the overtime upon
departure from Vietnam by the Station Directive. We asked the Office of
General Counsel to comment on the legal validity of the Station's regula-
tion concerning overtime. OGC stated that the Station Directive in
question was:
"basically inconsistent with Headquarters Regulations and
'which, in effect, authorized the Chief of Station
to certify unused compensatory time when the employee, because
of press of duties, had been unable to use his compensatory
time. Consequently, it is the view of the Office of General
Counsel that if, in fact, the individual was prevented from
using his compensatory time, under the regulations the Chief
of Station was required to certify such amount for payment.
Therefore, if we were required to give a formal ruling, the
holding would be that documented unused compensatory time which
the employee was unable to use is properly payable despite the
Chief of Station's failure to certify."
14+. Headquarters established a new overtime policy for Vietnam in
1968. This policy, which introduced the use of premium pay for many
employees in lieu of overtime, was communicated to the nation by dis-
patch (--13651), dated 19 December 1968. As a result of the new policy,
the Station Directive in question was modified.
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15. Another feature of the Agency's overtime policy that is at issue
here is the so--called eight--hour rule. This policy, which is enunciated
in HRM and distinguishes between work which is "accu-
rately measurable for compensation purposes," and work which "requires the
exercise of executive and professional skills." During the period we are
concerned with here, grades GS-10 and below were considered to fall in the.
first category, while grades G5--11 and above were regarded as being in the
second. The policy provided that any individual in the second category
(GS--11 and above) who performed directed overtime could be authorized pay-
ment for the overtime (or compensatory time off) only for hours of duty in
excess of 48 hours in any one week. At the same time the regulation provided
that any individual directed to work on seven or more consecutive days
could be paid overtime (or given time off) for the work performed on
Saturday and Sunday. The regulation was not explicit on whether an individ-
ual who worked overtime during the week and on Saturday and Sunday must
forfeit eight hours of overtime before being paid for the overtime or given
compensatory time off. The Vietnam Station interpreted it as requiring
the forfeiture of the first eight hours of overtime in any week. The
Personnel Certification Forms, on which compensatory overtime was recorded
in Vietnam, carried a routine 32-hour deduction for each four-week period.
A total of 640 hours were deducted from overtime under this
policy. includes this overtime in his claim.
16. The Agency's overtime policy is admittedly at variance with
Federal legislation. The Office of General Counsel has taken the position
that the Agency is exempt from this legislation, but has pointed out from
time to time that a judicial review of the question might end up with a
different conclusion. As a matter of policy, however, the Agency has to
date decided to accept the risks of an overtime policy which was at
variance with that prescribed by law. This decision has been reviewed on
more than one occasion in recent years and reaffirmed.
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17. Without raising the general question concerning the eight-hour
rule, we believe the Vietnam Station incorrectly interpreted the reiula-
tions concerning it as it applied to Vietnam. It seems illogical to
state explicitly that there was more work to be done in Vietnam than
could be done -- which was, in effeet, what the Station Directives said,
--- order everybody to work a seven-day week, and then ask employees above
a certain grade to donate eight hours of overtime per week. It would
seem more reasonable to interpret the provision of (that indi-
viduals of grade GS-11 and above who were directed to work on seven
consecutive days would be paid for Saturday and Sunday work) as meaning
that they could also be paid for all other overtime work performed during
that week. (Note: A provision was incorporated in the 1970 revision of
HR making it clear that the eight-hour deduction is
not required where a seven-day week is involved.) In
case, the records show that he actually worked all but six Sundays while
he was in Vietnam and that he worked overtime during the week in all of
those weeks.
18. This is not the first claim for payment of overtime that we
have had from Vietnam.
a. in June 1968 a former 08.12 level contract
employee, presented a claim for overtime performed in Vietnam from
May 1966 to Hey 1968, indicating in his letter that he intended to
press his claim with legal action if necessary. This claim was re-,
ferred by FE to the Office of General Counsel for opinion. When the
OGC held that Vietnam Station was in conflict with
Agency regulations and that Kissel had been improperly denied payment
or use of his compensatory time, the Executive Director-Comptroller
approved -claim for payment. In the discussion following
approval o claim, Colonel White asserted that other claims
of this kind would be considered on a case-by-case basis when submitted
by the individual concerned and that we would pay a claim only if we
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were able to verify the data submitted by the claimant. When it
was pointed out that we might receive claims in the future from
staff employees, Colonel White indicated that a very tough line
would be followed with respect to staff employees. This led to a
discussion of the eight-hour rule, during which Colonel White
emphasized that he did not want to see a return to the practice of
paying overtime to people who might come to work a bit early, stay
a bit late and take an ample lunch period. He said he would rather
seek special legislation than change our policy.
b. In December 1969, , also a former contract
employee, presented a claim for percent of compensatory overtime
earned in Vietnam from July 1966 to march 1968, and from January
to December 1969. This claim was rejected by FE Division, after
which -ppealed to the Inspector General. The case was re-
ferred by this office to SSA/DDS for review. After discussions
involving the SSA/DDE, the Assistant DDS, the Office of General
Counsel, and the Office of Finance, it was decided that the initial
response to should be to approve his claim for the overtime
performed during 1969 but to deny the part pertaining to 1966-68 on
the grounds that payment was not authorized by Agency regulations.
was advised accordingly by the Director of Personnel, and
to date he has not pressed his claim further. During the discus-
sions on this case it was noted that Colonel White's instructions
on claims for overtime prior to 1969 were to examine each one very
carefully and pay as few as possible in order not to open up Pan-
dora's box and flood the Agency with old claims for overtime.
a. In April 1971 a GS-13 staff employee,
submitted a claim for payment of 381 hours of unused compensatory
time earned in Vietnam from March 1967 to December 1968. He filed
in support of his claim a certification, which had been forwarded
to Hieadquarteers in January 1971 by the then Chief of Station, that
was not afforded the opportunity to use his accrued compensatory
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time prior to his departure from the Station. Despite this state-
went, and the necessary documentation establishing the coaupensaatory
time balauces,_vas informed orally by the then SSA/DDS that
payment of his claim was not authorized. - said he vas prepared 25X1
to accept the word of the SSA/, and did not pursue his claim further.
d. We have also heard of other eases where employees have asked,
either formally or informally, whether they could be reimbursed for
unused compensatory time earned during assignment to Vietnam and upon
being told by support personnel either in Vietnam or in Headquarters
that reimbursement for service prior to 1969 could not be authorized,
have not pursued their claims. A rough estimate recently made at
Headquarters, based on records forwarded by the Vietnam Station, iudi--
cate there are approximately 40,000 hours of compensatory overtime
earned prior to January 1969 still outstanding. It is not known at
the moment how much of this could be fully documented or how many
claims might be presented if the decision were taken to consider such
claims.
19. Despite the possible implications of such a decision, I believe
the Agency has no alternative but to honor claim. I be-
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lieve the Vietnam Station erred in requiring- to forfeit his unused
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compensatory time upon departure from Vietnam. Since was
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never given the opportunity to use this compensatory time, be should be
paid for it
It is recommended;
a. That you authorize and direct the Director of Finance to pay
for all properly certified unused compensatory
overtime that he performed in Vietnam.
b. That you advise by letter of your decision. A
suggested draft of this letter is attached.
.(Signed). William V. Bros
William V. Bros
Attachment InaDector General
X 1 A t Propo sed Letter to
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Your claim for payment for unused compensatory overtime
that you accumulated during your assignment to Vietnam from 1966
to 1968 has been investigated by the Inspector General.
As a result of my review of the findings and recommendations
of the Inspector General, I have decided that you are entitled to
payment for property approved overtime performed in Vietnam
which you were unable to use as compensatory time off. I have
accordingly instructed the pepper authorities to contact you, in
order to advise you of what additional information may be required
from you to properly document your claim. You should hear from
them soon.
Sincerely.
Richard Halms
Director
cc: Office of Finance
Office of Personnel
Office of General Counsel
OIG (9 May 1972)
Distribution
Orig.
- Addressee
1
- Each as above
1
- O/DCI Chrono
1- ExecReg
2 - IG (one withheld)
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