B-163720, APR. 2, 1968

B-163720: Apr 2, 1968

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IN ADDITION CLAIM IS NOW MADE FOR THE MONEY THAT WAS IN MR. HULING'S RETIREMENT ACCOUNT WHICH WAS RETURNED TO THE DEPARTMENT OF THE ARMY APPROPRIATION. HULING WAS GIVEN AN APPOINTMENT AS A GENERAL ENGINEER. THIS APPOINTMENT WAS BASED PRIMARILY ON AN ENGINEERING DEGREE (B.S.). THE DEPARTMENT OF THE ARMY POINTS OUT THAT IF THIS FALSIFICATION OF HIS EDUCATION AT THE TIME OF HIS EMPLOYMENT HAD BEEN KNOWN IT WOULD HAVE PRECLUDED HIS APPOINTMENT. HULING WAS THAT OF A DE FACTO EMPLOYEE DURING THE PERIOD OF HIS EMPLOYMENT. HE WAS NOT ENTITLED TO ANY SALARY PAYMENTS AFTER THE FALSIFICATION OF HIS EDUCATION WAS ESTABLISHED. HULING AT THE TIME OF HIS SEPARATION AS WELL AS LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE WERE NOT PAID TO HIM.

B-163720, APR. 2, 1968

TO MR. EDWARD L. HOPPER:

THIS REFERS TO YOUR LETTER OF JANUARY 8, 1968, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION (SETTLEMENT CERTIFICATE DATED DECEMBER 5, 1967) IN DISALLOWING THE CLAIM OF MR. EDWARD L. HULING FOR PAYMENT OF ANNUAL LEAVE AND FINAL SALARY ALLEGED TO BE DUE HIM AS A FORMER EMPLOYEE OF THE DEPARTMENT OF THE ARMY, U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA. ALSO, IN ADDITION CLAIM IS NOW MADE FOR THE MONEY THAT WAS IN MR. HULING'S RETIREMENT ACCOUNT WHICH WAS RETURNED TO THE DEPARTMENT OF THE ARMY APPROPRIATION.

THE RECORD SHOWS THAT MR. HULING WAS GIVEN AN APPOINTMENT AS A GENERAL ENGINEER, GRADE GS-801-12 ON APRIL 11, 1960. THIS APPOINTMENT WAS BASED PRIMARILY ON AN ENGINEERING DEGREE (B.S.) WHICH MR. HULING STATED ON HIS APPLICATION FOR EMPLOYMENT HE HAD OBTAINED FROM PENNSYLVANIA STATE UNIVERSITY IN 1955.

SUBSEQUENT INVESTIGATION DISCLOSED THAT PENNSYLVANIA STATE UNIVERSITY HAD NO RECORD OF HIS CLAIMED ATTENDANCE OR DEGREE. THE DEPARTMENT OF THE ARMY POINTS OUT THAT IF THIS FALSIFICATION OF HIS EDUCATION AT THE TIME OF HIS EMPLOYMENT HAD BEEN KNOWN IT WOULD HAVE PRECLUDED HIS APPOINTMENT.

THE DEPARTMENT OF THE ARMY DETERMINED THAT THE STATUS OF MR. HULING WAS THAT OF A DE FACTO EMPLOYEE DURING THE PERIOD OF HIS EMPLOYMENT. AS SUCH, HE WAS NOT ENTITLED TO ANY SALARY PAYMENTS AFTER THE FALSIFICATION OF HIS EDUCATION WAS ESTABLISHED. THEREFORE, SALARY DUE MR. HULING AT THE TIME OF HIS SEPARATION AS WELL AS LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE WERE NOT PAID TO HIM. IN ADDITION, THE SUM OF $2,724.63 IN MR. HULING'S RETIREMENT FUND WAS RETURNED TO THE APPROPRIATION FROM WHICH HIS SALARY PAYMENTS WERE MADE.

IT HAS LONG BEEN HELD BY OUR OFFICE THAT, WHERE THE FALSIFICATION IN AN EMPLOYEE'S APPLICATION INVOLVES AN ABSOLUTE BAR TO HIS EMPLOYMENT, THE EMPLOYEE IS TO BE REGARDED AS A DE FACTO EMPLOYEE AND AS SUCH IS ENTITLED TO RETAIN SUCH PAYMENTS AS MAY HAVE BEEN MADE TO HIM. HOWEVER, HE HAS NO ENFORCEABLE RIGHT TO COMPENSATION THAT HAS NOT BEEN PAID. SEE 38 COMP. GEN. 175, COPY HEREWITH, AND DECISIONS CITED THEREIN.

THERE ARE MANY COURT DECISIONS CONCERNING THE ENTITLEMENT OF DE FACTO OFFICERS OR EMPLOYEES TO UNPAID SALARY. THE COURT OF CLAIMS IN ROMERO VUNITED STATES, 24 CT. CL. 331, MADE THE FOLLOWING STATEMENT:

"THE JUDICIAL DECISIONS ARE UNIFORM THAT ONE CLAIMING A SALARY MUST PROVE HIS LEGAL TITLE TO THE OFFICE, AND THAT AN OFFICER DE FACTO AND NOT DE JURE CANNOT MAINTAIN AN ACTION FOR SALARY.' SEE ALSO ROYER V UNITED STATES, 59 CT. CL. 199, AFFIRMED 268 U.S. 394; HOSTINSKY V UNITED STATES, 154 CT. CL. 443.

THEREFORE, WE MUST SUSTAIN THE PRIOR ACTION TAKEN BY OUR OFFICE OF DISALLOWING MR. HULING'S CLAIM.

AS TO THE CLAIM FOR RETIREMENT DEDUCTIONS WE POINT OUT THAT OUR DECISION IN 38 COMP. GEN. 175, PREVIOUSLY CITED, ACTUALLY INVOLVED THE SAME MATTER. THERE IT WAS HELD THAT THE EMPLOYEE WAS NOT ENTITLED TO BE PAID THE AMOUNT DEDUCTED FROM HIS SALARY FOR RETIREMENT PURPOSES. IN OTHER WORDS, THE RETIREMENT DEDUCTIONS WERE TREATED AS BEING IN THE SAME CATEGORY AS UNPAID SALARY AND THUS NOT ALLOWABLE ON THE BASIS OF THE DE FACTO RULE STATED ABOVE.