B-139812, AUG. 11, 1959
Highlights
THE DATE OF THE PROMOTION ON WHICH YOUR CLAIM IS BASED. NEITHER OF WHICH WAS INVOLVED IN YOUR CASE. APPLY ONLY TO POSITIONS UNDER THE CLASSIFICATION ACT OF 1949 AS AMENDED AND THAT FOR PAY ADJUSTMENT PURPOSES POSITIONS SUCH AS YOURS OCCUPIED BY NON- CITIZENS ARE CONSIDERED WAGE BOARD POSITIONS NOT UNDER THE CLASSIFICATION ACT. YOU ARE APPARENTLY UNDER THE MISTAKEN IMPRESSION THAT THE AIR FORCE REGULATIONS WHICH WE RELIED ON IN OUR REVIEW OF YOUR CLAIM (PARAGRAPH 13C. WAS DATED MARCH 24. WAS CLEARLY CITED IN OURLETTER TO YOU AS BEING DATED JULY 18. TO CONSIDER POSITIONS OCCUPIED BY NON-CITIZENS AS WAGE BOARD POSITIONS DOES NOT HAVE THE EFFECT OF DENYING PAYMENT OF COMPENSATION TO SUCH NON- CITIZENS AND THEREFORE THE PROVISION OF LAW QUOTED ABOVE AND IN YOUR LETTER HAS NO BEARING ON YOUR CASE.
B-139812, AUG. 11, 1959
TO MR. RAMON C. JOSEF:
ON JULY 20, 1959, YOU WROTE AGAIN CONCERNING THE DISALLOWANCE OF YOUR CLAIM FOR RETROACTIVE ADJUSTMENT OF SALARY FOR THE PERIOD OF YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE IN THE PHILIPPINES.
IN OUR LETTER DATED JULY 1, 1959, TO YOU, WE AFFIRMED THE DISALLOWANCE ON THE BASIS THAT THE AIR FORCE REGULATIONS IN EFFECT ON OCTOBER 5, 1952, THE DATE OF THE PROMOTION ON WHICH YOUR CLAIM IS BASED, PROVIDED FOR RESTORATION TO A HIGHER PREVIOUSLY HELD STEPRATE ONLY IF THE EARLIER CHANGE TO A LOWER GRADE HAD BEEN IN LIEU OF SEPARATION FOR REDUCTION IN FORCE OR BY DISPLACEMENT, NEITHER OF WHICH WAS INVOLVED IN YOUR CASE. POINTED OUT ALSO THAT THE FEDERAL PERSONNEL MANUAL, PART 25, Z-1-319, SECTION 25-103 (B) (1) AND PUBLIC LAW 594 APPROVED JUNE 18, 1956, APPLY ONLY TO POSITIONS UNDER THE CLASSIFICATION ACT OF 1949 AS AMENDED AND THAT FOR PAY ADJUSTMENT PURPOSES POSITIONS SUCH AS YOURS OCCUPIED BY NON- CITIZENS ARE CONSIDERED WAGE BOARD POSITIONS NOT UNDER THE CLASSIFICATION ACT.
YOU ARE APPARENTLY UNDER THE MISTAKEN IMPRESSION THAT THE AIR FORCE REGULATIONS WHICH WE RELIED ON IN OUR REVIEW OF YOUR CLAIM (PARAGRAPH 13C, CHAPTER P-9.7, AFM 40-1), WAS DATED MARCH 24, 1954, AND WOULD NOT COVER THE PERSONNEL ACTION DATED OCTOBER 5, 1952. THE REGULATION ON WHICH WE RELIED, HOWEVER, WAS CLEARLY CITED IN OURLETTER TO YOU AS BEING DATED JULY 18, 1951.
WE FIND NO MERIT TO YOUR CONTENTION IN YOUR LAST LETTER THAT TO CONSIDER POSITIONS SUCH AS YOURS OCCUPIED BY NON-CITIZENS AS WAGE BOARD POSITIONS NOT UNDER THE CLASSIFICATION ACT WOULD BE IN CONFLICT WITH PROVISIONS INCLUDED IN VARIOUS MILITARY APPROPRIATION ACTS AS FOLLOWS:
"PROVISIONS OF LAW PROHIBITING THE PAYMENT OF COMPENSATION TO, OR EMPLOYMENT OF, ANY PERSON NOT A CITIZEN OF UNITED STATES SHALL NOT APPLY TO PERSONNEL OF THE NATIONAL MILITARY ESTABLISHMENT.'
TO CONSIDER POSITIONS OCCUPIED BY NON-CITIZENS AS WAGE BOARD POSITIONS DOES NOT HAVE THE EFFECT OF DENYING PAYMENT OF COMPENSATION TO SUCH NON- CITIZENS AND THEREFORE THE PROVISION OF LAW QUOTED ABOVE AND IN YOUR LETTER HAS NO BEARING ON YOUR CASE.
YOUR ALLEGATION, EVEN IF PROVED, THAT THE DEPARTMENT OF THE AIR FORCE EXTENDED THE BENEFITS OF SECTION 25-103 (B) (1) OF THE FEDERAL PERSONNEL MANUAL TO ONE EMPLOYEE, MR. DOMINGO SUBIA, DOES NOT JUSTIFY THE ALLOWANCE OF YOUR CLAIM ALTHOUGH SUCH ACTION ON THE PART OF THE DEPARTMENT OF THE AIR FORCE MIGHT GIVE RISE TO A CLAIM BY THE UNITED STATES AGAINST MR. SUBIA FOR OVERPAYMENT OF SALARY.
CONCERNING YOUR REQUEST THAT WE HELP YOU "REFER THIS TO THE U.S. COURT OF CLAIMS," WE MUST ADVISE THAT WE HAVE NO AUTHORITY TO TAKE SUCH ACTION. OUR JURISDICTION TO SETTLE CLAIMS AGAINST THE GOVERNMENT IS INDEPENDENT OF THE JURISDICTION OF THE COURT OF CLAIMS BUT WE KNOW OF NO REASON WHY YOU COULD NOT FILE A PETITION IN THAT COURT IF YOU SO DESIRE.