B-130539, JANUARY 20, 1958, 37 COMP. GEN. 483

B-130539: Jan 20, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ALIENS - EMPLOYMENT - COMPENSATION PROHIBITION - RELIEF - EMPLOYMENT REGULATION PROHIBITION A DEPARTMENT OF THE ARMY EMPLOYEE WHO WAS IN FACT A CITIZEN OF ENGLAND. IS FOUND TO HAVE BEEN PAID BY THE DISBURSING OFFICER IN GOOD FAITH AND WITHOUT ANY LACK OF GOOD FAITH ON HER PART TO JUSTIFY INVOKING THE RELIEF PROVISIONS OF THE ACT OF MAY 2. NO SALARY REFUND FROM THE EMPLOYEE IS REQUIRED. WHICH PRECLUDES PERMANENT EMPLOYMENT IN THE COMPETITIVE SERVICE UNLESS A PERSON IS A CITIZEN OR OWES ALLEGIANCE TO THE UNITED STATES. DOES NOT MAKE THE APPOINTMENT VOID AB INITIO BUT VOIDABLE ONLY SO THAT AN EMPLOYEE WHO IS SEPARATED PURSUANT TO SUCH REGULATION WHEN IT IS LEARNED THAT NO RECORD COULD BE FOUND OF THE NATURALIZATION OF HER FATHER AS A UNITED STATES CITIZEN IS ENTITLED TO COMPENSATION AND LUMP-SUM LEAVE EARNED PRIOR TO HER SEPARATION.

B-130539, JANUARY 20, 1958, 37 COMP. GEN. 483

ALIENS - EMPLOYMENT - COMPENSATION PROHIBITION - RELIEF - EMPLOYMENT REGULATION PROHIBITION A DEPARTMENT OF THE ARMY EMPLOYEE WHO WAS IN FACT A CITIZEN OF ENGLAND, ALTHOUGH SHE BELIEVED THAT SHE HAD ACQUIRED UNITED STATES CITIZENSHIP BY REASON OF THE NATURALIZATION OF HER FATHER, AND WHO RECEIVED COMPENSATION DURING THE FISCAL YEAR 1942 CONTRARY TO THE PROHIBITION IN THE MILITARY APPROPRIATION ACT, 1942, AGAINST PAYMENT OF SALARY TO NONCITIZENS, IS FOUND TO HAVE BEEN PAID BY THE DISBURSING OFFICER IN GOOD FAITH AND WITHOUT ANY LACK OF GOOD FAITH ON HER PART TO JUSTIFY INVOKING THE RELIEF PROVISIONS OF THE ACT OF MAY 2, 1942, AND, THEREFORE, NO SALARY REFUND FROM THE EMPLOYEE IS REQUIRED. THE EMPLOYMENT OF A NONCITIZEN BY THE DEPARTMENT OF THE ARMY CONTRARY TO CIVIL SERVICE REGULATION 2.104, WHICH PRECLUDES PERMANENT EMPLOYMENT IN THE COMPETITIVE SERVICE UNLESS A PERSON IS A CITIZEN OR OWES ALLEGIANCE TO THE UNITED STATES, DOES NOT MAKE THE APPOINTMENT VOID AB INITIO BUT VOIDABLE ONLY SO THAT AN EMPLOYEE WHO IS SEPARATED PURSUANT TO SUCH REGULATION WHEN IT IS LEARNED THAT NO RECORD COULD BE FOUND OF THE NATURALIZATION OF HER FATHER AS A UNITED STATES CITIZEN IS ENTITLED TO COMPENSATION AND LUMP-SUM LEAVE EARNED PRIOR TO HER SEPARATION.

TO THE SECRETARY OF THE ARMY, JANUARY 20, 1958:

ON DECEMBER 19, 1957, THE ASSISTANT SECRETARY OF THE ARMY REQUESTED OUR DECISION AS TO THE LEGALITY OF SALARY PAYMENTS TO MRS. DORA J. HICKMAN, DURING THE FISCAL YEARS 1942 AND 1943, AND TO THE PROPRIETY OF WITHHOLDING FINAL SALARY AND LUMP-SUM LEAVE PAYMENT AT THE TIME OF HER SEPARATION IN SEPTEMBER 1956, BECAUSE OF FAILURE TO DISCLOSE THAT SHE WAS NOT A CITIZEN OF THE UNITED STATES.

THE REPORT FURNISHED SHOWS THAT ON APRIL 28, 1942, MRS. HICKMAN RECEIVED A WAR-SERVICE INDEFINITE APPOINTMENT AT WHICH TIME SHE CERTIFIED ON VARIOUS FORMS THAT SHE WAS A CITIZEN OF THE UNITED STATES THROUGH NATURALIZATION OF HER FATHER IN 1917, UNITED STATES DISTRICT COURT, CERTIFICATE NO. 11500. HER PLACE OF BIRTH WAS SHOWN AS SHROPSHIRE, ENGLAND. ON PAPERS EXECUTED IN CONNECTION WITH HER CONVERSION TO A PROBATIONAL STATUS IN APRIL 1947, MRS. HICKMAN ALSO INDICATED THAT SHE WAS A CITIZEN OF THE UNITED STATES. HOWEVER, IN AUGUST 1956, A RE- INVESTIGATION DISCLOSED THAT MRS. HICKMAN WAS NOT A CITIZEN OF THE UNITED STATES AND ON SEPTEMBER 24, 1956, SHE WAS SEPARATED FOR DISQUALIFICATION (NONCITIZENSHIP).

THE MILITARY APPROPRIATION ACTS FOR THE FISCAL YEARS 1942 AND 1943 CONTAINED PROHIBITIONS AGAINST THE USE OF THE FUNDS PROVIDED THEREIN TO PAY THE SALARY OF A NONCITIZEN OF THE UNITED STATES UNDER CERTAIN CIRCUMSTANCES. THE ACT COVERING THE FISCAL YEAR 1942, APPROVED JUNE 30, 1941, 55 STAT. 369, PROHIBITED PAYMENT OF SALARY TO ANY PERSON NOT A CITIZEN OF THE UNITED STATES, UNLESS SUCH PERSON WAS IN THE EMPLOYE OF THE GOVERNMENT OR IN A PAY STATUS ON JULY 1, 1937. THE APPROPRIATION ACT IN EFFECT FOR THE FISCAL YEAR 1943, APPROVED JULY 2, 1942, 56 STAT. 613, PROHIBITED PAYMENT OF SALARY TO ANY PERSON NOT A CITIZEN OF THE UNITED STATES WHO WAS NOT IN THE EMPLOY OF THE GOVERNMENT OR IN A PAY STATUS ON THE DATE OF ENACTMENT THEREOF. ALSO, THIS LATER ACT CONTAINED A FURTHER PROVISION STATING THAT THE PROHIBITION WOULD NOT BE APPLICABLE TO NATIONALS OF THOSE COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR AND WHOSE EMPLOYMENT WAS DETERMINED BY THE SECRETARY OF WAR TO BE NECESSARY.

AS TO THE 1943 FISCAL YEAR, THE EMPLOYEE HERE INVOLVED WAS IN THE EMPLOY OF THE UNITED STATES ON THE DATE OF THE ENACTMENT OF THE APPROPRIATION ACT FOR THAT FISCAL YEAR, THAT IS, ON JULY 2, 1942. MOREOVER, THE ASSISTANT SECRETARY SAYS THAT HAD THE FACT OF NONCITIZENSHIP BEEN KNOWN AT THAT TIME, MRS. HICKMAN'S CASE COULD AND UNDOUBTEDLY WOULD HAVE BEEN APPROVED BY THE SECRETARY OF WAR. IN VIEW THEREOF, THE SALARY PAYMENTS FOR THE FISCAL YEAR 1943 ARE REGARDED AS PROPER.

THE SALARY PAYMENTS TO THE EMPLOYEE DURING THE FISCAL YEAR 1942, THAT IS FROM APRIL 28, 1942, THROUGH JUNE 30, 1942, APPEAR TO BE PROHIBITED BY THE MILITARY APPROPRIATION ACT, 1942, SINCE THERE IS NO SHOWING THAT SHE WAS IN THE EMPLOY OF THE UNITED STATES OR IN A PAY STATUS ON JULY 1, 1937. CONCERNING SUCH PROHIBITED PAYMENTS FOR THAT FISCAL YEAR, THERE IS FOR CONSIDERATION THE PROVISIONS OF THE ACT OF MAY 2, 1942, 56 STAT. 266, WHICH AMENDED THE ACT OF APRIL 11, 1941, 55 STAT. 136, TO READ IN PERTINENT PART AS FOLLOWS:

SECTION 1. THAT NOTWITHSTANDING PROVISIONS CONTAINED IN THE SEVERAL APPROPRIATION ACTS FOR THE FISCAL YEARS 1939, 1940, 1941, AND 1942,PROHIBITING THE PAYMENT OF COMPENSATION THEREFROM TO OFFICERS OR EMPLOYEES WHO ARE NOT CITIZENS OF THE UNITED STATES, THE COMPTROLLER GENERAL OF THE UNITED STATES IS HEREBY AUTHORIZED AND DIRECTED TO ALLOW CREDIT IN THE SETTLEMENT OF DISBURSING OFFICERS' ACCOUNTS, AND RELIEVE CERTIFYING OFFICERS OF LIABILITY FOR SUCH PAYMENT FOR SERVICES RENDERED BY NONCITIZEN OFFICERS AND EMPLOYEES, AS ARE OTHERWISE CORRECT AND LEGAL, AS ARE MADE IN GOOD FAITH, AND AS ARE FOUND NOT TO BE DUE TO ANY LACK OF GOOD FAITH ON THE PART OF THE PAYEE.

SEC. 2. IF CREDIT IS ALLOWED IN DISBURSING OFFICERS' ACCOUNTS IN ACCORDANCE WITH SECTION 1 OF THIS ACT, THE OFFICER OR EMPLOYEE, OR FORMER OFFICER OR EMPLOYEE RECEIVING PAYMENT SHALL NOT BE REQUIRED TO REFUND THE AMOUNT THEREOF; AND ANY SUCH AMOUNT WHICH HAS BEEN COLLECTED FROM AN OFFICER OR EMPLOYEE, OR FORMER OFFICER OR EMPLOYEE, MAY BE REFUNDED TO HIM.

WE HAVE INFORMALLY OBTAINED COPIES OF CORRESPONDENCE FROM YOUR DEPARTMENT, INCLUDING A COPY OF A LETTER FROM MRS. HICKMAN, IN WHICH SHE AVERS THAT IT WAS ALWAYS HER BELIEF THAT SHE WAS A CITIZEN OF THE UNITED STATES BY REASON OF INFORMATION FROM HER FATHER THAT HE WAS NATURALIZED IN 1917. IN REPLY TO A CHARGE THAT SHE HAD REGISTERED AS AN ALIEN UNDER THE ALIEN REGISTRATION ACT IN 1940, 54 STAT. 670, SHE STATED THAT SHE DID SO IN THE BELIEF THAT SUCH ACT APPLIED TO CITIZENS WHO WERE FOREIGN BORN.

WHEN CONFRONTED WITH INFORMATION FROM THE IMMIGRATION AND NATURALIZATION SERVICE IN 1956, THAT NO RECORD WAS FOUND OF HER FATHER'S NATURALIZATION, MRS. HICKMAN IMMEDIATELY TOOK STEPS TO BECOME A CITIZEN OF THE UNITED STATES BY NATURALIZATION WHICH ACTION WAS CONSUMMATED IN THE LATTER PART OF 1956, AND ON DECEMBER 31, 1956, SHE WAS REEMPLOYED BY THE DEPARTMENT OF THE ARMY. WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF YOUR DEPARTMENT THAT A REVIEW OF THE FILE IN MRS. HICKMAN'S CASE FAILS TO SHOW ANY LACK OF GOOD FAITH ON HER PART AND THAT SHE HAS A GOOD REPUTATION FOR VERACITY. ON THE BASIS OF THE FOREGOING AND IN ACCORDANCE WITH THE ACT OF MAY 2, 1942, SUPRA, WE FIND THAT THE SALARY PAYMENTS TO THE EMPLOYEE FOR THE FISCAL YEAR 1942, WERE MADE IN GOOD FAITH BY THE DISBURSING OFFICER CONCERNED, AND WITHOUT ANY LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE. THUS, NO REFUND FROM MRS. HICKMAN IS REQUIRED FOR SALARY RECEIVED DURING THE PERIOD APRIL 28, 1942, THROUGH JUNE 30, 1942.

THE ASSISTANT SECRETARY'S LETTER FURTHER REPORTS THAT SINCE JULY 1, 1943, UNTIL THE PRESENT TIME, THE PROVISIONS OF LAW PROHIBITING THE PAYMENT OF SALARY TO NONCITIZENS HAVE NOT BEEN APPLICABLE TO EMPLOYEES OF THE DEPARTMENT OF THE ARMY. APPARENTLY, MRS. HICKMAN WAS SEPARATED IN 1956, NOT BECAUSE OF ANY STATUTORY PROHIBITION, BUT BECAUSE OF CIVIL SERVICE REGULATION 2.104 WHICH PRECLUDES PERMANENT EMPLOYMENT IN THE COMPETITIVE SERVICE UNLESS A PERSON IS A CITIZEN OR OWES ALLEGIANCE TO THE UNITED STATES.

FAILURE TO CONFORM WITH THE REGULATION OF THE CIVIL SERVICE COMMISSION REFERRED TO ABOVE IS NOT REGARDED AS RENDERING AN APPOINTMENT VOID AB INITIO BUT VOIDABLE ONLY. THEREFORE, THERE IS NO QUESTION OF A DE FACTO STATUS INVOLVED AND MRS. HICKMAN IS ENTITLED TO ALL COMPENSATION EARNED BY HER PRIOR TO SEPARATION PLUS A LUMP-SUM PAYMENT FOR HER ACCRUED ANNUAL LEAVE.