B-104916, DEC. 22, 1955

B-104916: Dec 22, 1955

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DIVINAGRACIA: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1. WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR PAYMENT FOR ANNUAL LEAVE ALLEGED TO HAVE BEEN EARNED BY YOU AS AN EMPLOYEE OF THE ARMY QUARTERMASTER DEPOT IN THE PHILIPPINES DURING THE PERIOD MARCH 18. THE SETTLEMENT AND DECISION REFERRED TO WERE BASED UPON THE FACT THAT "NATIVE AND ALIEN EMPLOYEES" WERE EXCLUDED FROM THE LEAVE REGULATIONS. YOU ARGUE THAT YOU WERE NOT AN ALIEN EMPLOYEE AS THE PHILIPPINE ISLANDS WERE UNDER CONTROL OF THE UNITED STATES AT THAT TIME. THE FACT THAT AGENCIES OTHER THAN THE DEPARTMENT OF THE ARMY AUTHORIZED LEAVE TO ALIEN AND NATIVE EMPLOYEES IN THE PHILIPPINES AS ALLEGED BY YOU IS IMMATERIAL. THE FACT REMAINS THAT SUCH EXCLUSION OR INCLUSION AS THE CASE MAY BE WAS LEFT UP ENTIRELY TO THE HEADS OF THE GOVERNING AGENCIES EMPLOYING ALIEN AND NATIVE LABOR OUTSIDE THE UNITED STATES.

B-104916, DEC. 22, 1955

TO MR. DONATO M. DIVINAGRACIA:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1955, REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 18, 1952, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR PAYMENT FOR ANNUAL LEAVE ALLEGED TO HAVE BEEN EARNED BY YOU AS AN EMPLOYEE OF THE ARMY QUARTERMASTER DEPOT IN THE PHILIPPINES DURING THE PERIOD MARCH 18, 1945, TO JANUARY 1947.

THE SETTLEMENT AND DECISION REFERRED TO WERE BASED UPON THE FACT THAT "NATIVE AND ALIEN EMPLOYEES" WERE EXCLUDED FROM THE LEAVE REGULATIONS. YOU ARGUE THAT YOU WERE NOT AN ALIEN EMPLOYEE AS THE PHILIPPINE ISLANDS WERE UNDER CONTROL OF THE UNITED STATES AT THAT TIME.

FILIPINOS DID NOT ACQUIRE AMERICAN CITIZENSHIP BY THE CESSION OF THE PHILIPPINE ISLANDS TO THE UNITED STATES BY SPAIN BUT REMAINED ALIENS. DECANO V. STATE, 110 P.2D 627; GANEY V. UNITED STATES, 149 F.2D 788; B- 97941, OCTOBER 26, 1950. IT MAY ALSO BE POINTED OUT THAT THE EXECUTIVE ORDER EXCLUDING CERTAIN CLASSES FROM THE LEAVE ACTS EXCLUDED NOT ONLY "ALIEN" EMPLOYEES BUT ALSO ,NATIVE" EMPLOYEES. THE FACT THAT AGENCIES OTHER THAN THE DEPARTMENT OF THE ARMY AUTHORIZED LEAVE TO ALIEN AND NATIVE EMPLOYEES IN THE PHILIPPINES AS ALLEGED BY YOU IS IMMATERIAL. THE FACT REMAINS THAT SUCH EXCLUSION OR INCLUSION AS THE CASE MAY BE WAS LEFT UP ENTIRELY TO THE HEADS OF THE GOVERNING AGENCIES EMPLOYING ALIEN AND NATIVE LABOR OUTSIDE THE UNITED STATES.

IT APPEARS, THEREFORE, THAT THE DECISION OF JANUARY 18, 1952, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IT IS ADHERED TO. ..END :