B-144081, OCT. 20, 1960

B-144081: Oct 20, 1960

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REQUESTING ADVANCE DECISION WHETHER THE EMPLOYEE CONCERNED IS ENTITLED TO RECEIVE THE U.S. ADVISES THAT THE EMPLOYEE WAS APPOINTED AUGUST 18. SHE HAD INDICATED SHE WAS A UNITED STATES CITIZEN. THAT AT THE TIME SHE WAS HIRED AND "OBVIOUSLY AFTER SHE HAD SUBMITTED HER APPLICATION. " SOMEONE CROSSED OUT HER ANSWER TO THAT PART OF ITEM 26 WHICH ASKS "ARE YOU A CITIZEN OF THE UNITED STATES OF AMERICA? " FURTHER. IN THAT REGARD THE COMMANDING OFFICER SAYS "IT WAS IMPROPERLY ASSUMED AT THE TIME OF HER APPOINTMENT THAT SHE WAS A CITIZEN OF THE REPUBLIC OF THE PHILIPPINES. " AND THAT THE EMPLOYEE "HAS NOT SUBMITTED EVIDENCE THAT SHE IS A UNITED STATES CITIZEN. ADDED COSTS TO THE GOVERNMENT IF HER RATE OF PAY IS INCREASED.

B-144081, OCT. 20, 1960

TO J. R. EDWARDS, DISBURSING OFFICER:

ON SEPTEMBER 23, 1960, REFERENCE NCA121, THE ASSISTANT COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF AUGUST 26, 1960, REFERENCE 550 7230,REQUESTING ADVANCE DECISION WHETHER THE EMPLOYEE CONCERNED IS ENTITLED TO RECEIVE THE U.S. SALARY RATE UNDER THE CLASSIFICATION ACT SCHEDULE AND, IF OUR DECISION SHOULD FAVOR THE EMPLOYEE, WHETHER PAY ADJUSTMENT SHOULD BE MADE PROSPECTIVELY OR RETROACTIVELY.

THE COMMANDING OFFICER'S LETTER OF FEBRUARY 15, 1960, NS30 12000 SER: 553, TO CHIEF OF INDUSTRIAL RELATIONS, ADVISES THAT THE EMPLOYEE WAS APPOINTED AUGUST 18, 1955, UNDER AN EXCEPTED APPOINTMENT (INDEFINITE) TO A GROUP IV-TYPE POSITION. IN HER APPLICATION, STANDARD FORM 57 ITEM 26, SHE HAD INDICATED SHE WAS A UNITED STATES CITIZEN. THE LETTER SAYS, HOWEVER, THAT AT THE TIME SHE WAS HIRED AND "OBVIOUSLY AFTER SHE HAD SUBMITTED HER APPLICATION," SOMEONE CROSSED OUT HER ANSWER TO THAT PART OF ITEM 26 WHICH ASKS "ARE YOU A CITIZEN OF THE UNITED STATES OF AMERICA? " FURTHER, THAT SUCH EVIDENCE AND SUBSEQUENT DISCUSSIONS WITH THE EMPLOYEE, DEMONSTRATE THAT SHE DID NOT ALTER HER ORIGINAL ANSWER TO THAT QUESTION, AND HAS ACTED IN GOOD FAITH. IN THAT REGARD THE COMMANDING OFFICER SAYS "IT WAS IMPROPERLY ASSUMED AT THE TIME OF HER APPOINTMENT THAT SHE WAS A CITIZEN OF THE REPUBLIC OF THE PHILIPPINES," AND THAT THE EMPLOYEE "HAS NOT SUBMITTED EVIDENCE THAT SHE IS A UNITED STATES CITIZEN," WHICH HAS BEEN CONFIRMED BY THE UNITED STATES EMBASSY IN MANILA.

THE COMMANDING OFFICER ALSO DISCUSSES SEVERAL ASPECTS OF THE MATTER, TOUCHING UPON, NAMELY, INEQUITY IN PAY BECAUSE OF ADMINISTRATIVE ERROR, ADDED COSTS TO THE GOVERNMENT IF HER RATE OF PAY IS INCREASED, PRECEDENT ACTION FOR SIMILAR CASES, SUCH EMPLOYEE'S DISADVANTAGE WHICH COULD RESULT IN A REDUCTION IN FORCE, AND CONFLICT WITH DEPARTMENTAL POLICY.

WHILE SUCH DISCUSSIONS AND THE SUBSEQUENT ADMINISTRATIVE CORRESPONDENCE MENTION ADMINISTRATIVE ERROR AND DEPARTMENTAL POLICY, THE FILE DOES NOT INDICATE THAT A VACANT CLASSIFICATION ACT POSITION WAS AVAILABLE AT THE TIME OR THAT SUFFICIENT FUNDS WERE THEN OR ARE NOT AVAILABLE THEREFOR. EVEN THOUGH SUCH A POSITION OR FUNDS LATER BECAME AVAILABLE, THE RULE IS THAT TRANSFER OR APPOINTMENT THERETO GENERALLY MAY NOT BE MADE RETROACTIVE.

THE SOLE FACT THAT AN ERROR MAY HAVE OCCURRED IN THE DELETION OF HER ANSWER TO ITEM 26 DOES NOT OVERCOME THE PARAMOUNT FACT THAT THE EMPLOYEE WAS NOT APPOINTED TO A CLASSIFICATION ACT POSITION AT THE TIME IN QUESTION. MOREOVER, THE ANSWER TO THE ITEMS OF STANDARD FORM 57 ARE USUALLY REGARDED AS PRIMA FACIE ONLY, SUBJECT TO CONFIRMATORY EVIDENCE, SUCH AS EVENTUALLY CAME OUT IN THIS CASE.

THEREFORE, AND WHILE SOME CORRECTIVE ACTION NOW MAY LIE WITHIN THE ADMINISTRATIVE DISCRETION AND MIGHT RESULT IN A CHANGE OF THE EMPLOYEE'S STATUS AND PAY RATE, SUCH CORRECTIVE ACTION MAY NOT BE MADE RETROACTIVE BASED UPON THE SUBMITTED RECORD WHICH WE HAVE.

Nov 22, 2017

Nov 21, 2017

  • A-P-T Research, Inc.
    We deny the protest in part and dismiss the protest in part.
    B-414825,B-414825.2

Nov 20, 2017

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

Nov 15, 2017

Nov 14, 2017

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