B-127522, MAY 16, 1956

B-127522: May 16, 1956

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DAVID MERRIMAN: REFERENCE IS MADE TO YOUR RECENT LETTERS REQUESTING. THE RECORD SHOWS THAT THE CLAIM WAS DISALLOWED BECAUSE YOU MADE MISSTATEMENTS CONCERNING YOUR QUALIFYING EXPERIENCE. - WITHOUT WHICH MISSTATEMENTS YOU COULD NOT HAVE OBTAINED THE POSITION HELD BY YOU. YOU STATE IT TO BE YOUR BELIEF THAT YOU ARE ENTITLED TO PAYMENT OF THE CLAIM INASMUCH AS YOU RECEIVED AN EXCELLENT EFFICIENCY RATING IN PERFORMING THE DUTIES OF THE POSITION IN QUESTION. YOU FURTHER STATE THAT OTHER EMPLOYEES WHO WERE REMOVED FROM THE SERVICE UNDER SIMILAR CIRCUMSTANCES RECEIVED A LUMP-SUM PAYMENT FOR THEIR ACCUMULATED LEAVE. YOU WERE ADVISED IN THE ABOVE SETTLEMENT OF AUGUST 15. THAT AN INVESTIGATION OF YOUR CASE BY THE UNITED STATES CIVIL SERVICE COMMISSION DISCLOSED THAT YOU DID NOT MEET THE MINIMUM REQUIREMENTS FOR THE POSITION TO WHICH YOU WERE APPOINTED AND THAT YOU WOULD NOT HAVE BEEN APPOINTED WERE IT NOT FOR THE MISSTATEMENTS CONCERNING YOUR QUALIFYING EXPERIENCE FURNISHED IN YOUR APPLICATION.

B-127522, MAY 16, 1956

TO MR. DAVID MERRIMAN:

REFERENCE IS MADE TO YOUR RECENT LETTERS REQUESTING, IN EFFECT, A REVIEW OF OUR SETTLEMENT OF AUGUST 15, 1951, WHICH DISALLOWED YOUR CLAIM FOR AN AMOUNT BELIEVED TO BE DUE FOR ANNUAL LEAVE, UNPAID SALARY, AND BOND DEDUCTIONS, UPON YOUR SEPARATION ON JUNE 11, 1951, FROM YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY, RED RIVER ARSENAL, TEXARKANA, TEXAS.

THE RECORD SHOWS THAT THE CLAIM WAS DISALLOWED BECAUSE YOU MADE MISSTATEMENTS CONCERNING YOUR QUALIFYING EXPERIENCE--- WITHOUT WHICH MISSTATEMENTS YOU COULD NOT HAVE OBTAINED THE POSITION HELD BY YOU--- AND YOU THEREFORE HAD NO ENFORCEABLE RIGHT TO COMPENSATION WHICH HAD NOT BEEN PAID.

YOU STATE IT TO BE YOUR BELIEF THAT YOU ARE ENTITLED TO PAYMENT OF THE CLAIM INASMUCH AS YOU RECEIVED AN EXCELLENT EFFICIENCY RATING IN PERFORMING THE DUTIES OF THE POSITION IN QUESTION; YOU HAD A GOOD LEAVE RECORD; AND YOU RECEIVED A PROMOTION DURING THE PERIOD OF YOUR EMPLOYMENT. YOU FURTHER STATE THAT OTHER EMPLOYEES WHO WERE REMOVED FROM THE SERVICE UNDER SIMILAR CIRCUMSTANCES RECEIVED A LUMP-SUM PAYMENT FOR THEIR ACCUMULATED LEAVE.

YOU WERE ADVISED IN THE ABOVE SETTLEMENT OF AUGUST 15, 1951, THAT AN INVESTIGATION OF YOUR CASE BY THE UNITED STATES CIVIL SERVICE COMMISSION DISCLOSED THAT YOU DID NOT MEET THE MINIMUM REQUIREMENTS FOR THE POSITION TO WHICH YOU WERE APPOINTED AND THAT YOU WOULD NOT HAVE BEEN APPOINTED WERE IT NOT FOR THE MISSTATEMENTS CONCERNING YOUR QUALIFYING EXPERIENCE FURNISHED IN YOUR APPLICATION. THEREFORE, BOTH YOUR APPOINTMENT AND PROMOTION WERE CONSIDERED VOID AND YOU WERE, AT MOST, A DE FACTO EMPLOYEE DURING YOUR ENTIRE PERIOD OF SERVICE; THAT IS TO SAY, YOU WERE AN EMPLOYEE SERVING UNDER AN APPOINTMENT MADE CONTRARY TO LAW.

THE ESTABLISHED RULE IN SUCH CASES IS THAT THE EMPLOYEE IS PERMITTED TO RETAIN THE COMPENSATION ALREADY PAID, BUT AFTER THE DE FACTO STATUS IS BROUGHT TO ATTENTION OF THE ADMINISTRATIVE OFFICIALS HE MAY NOT BE PAID ANY FURTHER COMPENSATION. SEE 28 COMP. GEN. 514. ALSO, HE IS NOT ENTITLED TO A REFUND OF DEDUCTIONS FOR SAVINGS BONDS WHICH REPRESENT UNPAID COMPENSATION, NOR FOR PAYMENT FOR ANNUAL LEAVE WHICH ACCRUED DURING THE DE FACTO PERIOD. 31 COMP. GEN. 262.

REGARDING YOUR STATEMENT THAT OTHER EMPLOYEES OF THE RED RIVER ARSENAL WERE LIKEWISE REMOVED FROM THE SERVICE AND PAID A LUMP SUM FOR THEIR ACCUMULATED LEAVE, YOU ARE ADVISED THAT IF CLAIMS UNDER IDENTICAL CIRCUMSTANCES WERE ADMINISTRATIVELY ALLOWED, SUCH PAYMENTS WOULD BE FOR CONSIDERATION IN THE POST AUDIT OF THE VOUCHERS INVOLVED AND SUCH ACTION WOULD BE TAKEN WITH RESPECT THERETO AS DEEMED APPROPRIATE.

ACCORDINGLY, WE MUST INFORM YOU THAT THE SETTLEMENT OF AUGUST 15, 1951, IS CORRECT, AND, UPON REVIEW, IT MUST BE AND IS SUSTAINED.