B-164246, JUN. 13, 1968

B-164246: Jun 13, 1968

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YOU STATE THAT YOU WERE BORN ON THE ISLAND OF OAHU. IN DECEMBER 1941 YOU WERE SWORN INTO THE UNITED STATES ARMY AND SERVED IN A GUERILLA CAPACITY UNTIL YOUR HONORABLE DISCHARGE IN 1946. IN DECEMBER 1946 YOU WERE HIRED AS A LABORER AT THE NAVAL BASE AT SUBIC BAY AND ON YOUR EMPLOYMENT FORM YOU LISTED YOUR NATIONALITY AS FILIPINO. IN 1954 YOU ALLEGED ON A PROMOTION FORM THAT YOU WERE A UNITED STATES CITIZEN BUT YOU DID NOT SUBMIT PROOF ON THIS ISSUE UNTIL APRIL 29. AS A RESULT THEREOF YOUR APPOINTMENT WAS CHANGED TO A CLASSIFICATION ACT POSITION. YOUR NAVY EMPLOYMENT WAS TERMINATED BY A REDUCTION IN FORCE ON JANUARY 9. AT THE TIME YOU WERE APPOINTED YOU PRESUMABLY WERE CONSIDERED BY THE APPOINTING OFFICER TO BE A NONCITIZEN.

B-164246, JUN. 13, 1968

TO MR. FEDERICO S. BANCACO:

BY LETTERS OF APRIL 3 AND 24, 1968, YOUR ATTORNEY, MR. JOHN E. BOWEN, REQUESTS REVIEW OF OUR SETTLEMENT DATED JUNE 14, 1966, DENYING YOUR CLAIM FOR THE DIFFERENCE IN COMPENSATION BETWEEN THE RATE PAID UNITED STATES CITIZENS UNDER THE CLASSIFICATION ACT AND THE RATE PAID NONCITIZENS DURING THE PERIOD FEBRUARY 17, 1956, TO APRIL 28, 1962, AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY AT THE UNITED STATES NAVAL BASE, SUBIC BAY, PHILIPPINES.

YOU STATE THAT YOU WERE BORN ON THE ISLAND OF OAHU, HAWAII, IN 1917 AND MOVED TO THE PHILIPPINES WITH YOUR PARENTS IN 1933. IN DECEMBER 1941 YOU WERE SWORN INTO THE UNITED STATES ARMY AND SERVED IN A GUERILLA CAPACITY UNTIL YOUR HONORABLE DISCHARGE IN 1946. AFTER THE WAR YOU ASSERT THAT YOU HAD DIFFICULTY IN ESTABLISHING YOUR CITIZENSHIP. IN DECEMBER 1946 YOU WERE HIRED AS A LABORER AT THE NAVAL BASE AT SUBIC BAY AND ON YOUR EMPLOYMENT FORM YOU LISTED YOUR NATIONALITY AS FILIPINO.

IN 1954 YOU ALLEGED ON A PROMOTION FORM THAT YOU WERE A UNITED STATES CITIZEN BUT YOU DID NOT SUBMIT PROOF ON THIS ISSUE UNTIL APRIL 29, 1962, FOLLOWING A REQUEST OF THE INDUSTRIAL RELATIONS OFFICE ON MARCH 29, 1962. AS A RESULT THEREOF YOUR APPOINTMENT WAS CHANGED TO A CLASSIFICATION ACT POSITION, GUARD SUPERVISOR GS-085-7, ON APRIL 29, 1962. YOUR NAVY EMPLOYMENT WAS TERMINATED BY A REDUCTION IN FORCE ON JANUARY 9, 1966.

AT THE TIME YOU WERE APPOINTED YOU PRESUMABLY WERE CONSIDERED BY THE APPOINTING OFFICER TO BE A NONCITIZEN, THERE BEING NO EVIDENCE TO SHOW ANY ADMINISTRATIVE INTENT TO REGARD YOU OTHERWISE, PARTICULARLY IN VIEW OF YOUR STATEMENT ON THE INDUSTRIAL RELATIONS EMPLOYMENT FORM DATED DECEMBER 13, 1946, THAT YOU WERE A FILIPINO CITIZEN. THIS CONTROVERTS THE ASSERTION OF YOUR ATTORNEY, MR. BOWEN, THAT YOU WERE ASSERTING YOUR UNITED STATES CITIZENSHIP FROM THE VERY BEGINNING. AND WHILE YOU INDICATED ON A PROMOTION FORM IN 1954 THAT YOU WERE A UNITED STATES CITIZEN YOU NEVER PROTESTED YOUR EMPLOYMENT AS A NONCITIZEN OR TOOK ANY AFFIRMATIVE ACTION TO ESTABLISH THE FACT OF YOUR CITIZENSHIP UNTIL YOU WERE REQUESTED TO DO SO BY THE INDUSTRIAL RELATIONS OFFICE IN MARCH 1962.

AS SOON AS YOU PROVIDED THE NECESSARY PROOF YOU WERE APPOINTED TO A CLASSIFICATION ACT POSITION. MOREOVER, THERE IS NO INDICATION IN THE RECORD THAT THE APPOINTING OFFICER HAD ANY GOOD REASON TO KNOW THAT YOU WERE A CITIZEN AT THE TIME OF YOUR APPOINTMENT OR THAT THERE WAS ANY QUESTION IN REGARD TO YOUR CITIZENSHIP.

UNDER THE FOREGOING CIRCUMSTANCES YOUR SUBSEQUENT ASSERTION OF CITIZENSHIP FOR THE PURPOSE OF APPLYING THE PAY PROVISIONS OF THE CLASSIFICATION ACT MAY BE GIVEN EFFECT ONLY PROSPECTIVELY FROM THE DATE THE AGENCY RECEIVED NOTIFICATION OF YOUR CITIZENSHIP. SEE B 144081, MARCH 16, 1961, AND OCTOBER 20, 1960 (COPIES ENCLOSED).

FOR THE FOREGOING REASONS OUR PRIOR OFFICE SETTLEMENT DENYING YOUR CLAIM IS AND MUST BE SUSTAINED.