B-174848, FEB 24, 1972

B-174848: Feb 24, 1972

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WHERE FALSIFICATION OF AN EMPLOYEE'S APPLICATION IS PROHIBITED BY STATUTE. PERSONNEL OF THE DEPARTMENT OF DEFENSE ARE EXEMPTED FROM SUCH STATUTORY PROHIBITION. THE EMPLOYEE'S MISREPRESENTATION PRECLUDES HIS ENTITLEMENT TO UNPAID COMPENSATION AND PAYMENT OF THE SUBJECT AMOUNT IS NOT AUTHORIZED. E. FORD: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14. HERRERA WAS FIRST EMPLOYED AS SUMMER HELP ON JUNE 9. THAT ON HIS APPLICATION HE STATED THAT HE WAS A UNITED STATES CITIZEN AND LISTED HIS BIRTHPLACE AS EL PASO. HERRERA HAD BEEN COMPENSATED IN THE NET AMOUNT OF $867.57 AND AT THE TIME HE WAS DEPORTED HE WAS DUE 24 BASE HOURS OF PAY IN THE NET AMOUNT OF $36.40. YOUR CIVILIAN PERSONNEL OFFICE HAS INDICATED THAT THEY ARE RESTRICTED FROM THE HIRING OF ALIENS AND THAT HAD IT BEEN KNOWN THAT MR.

B-174848, FEB 24, 1972

CIVILIAN EMPLOYEE - ENTITLEMENT TO UNPAID COMPENSATION - FALSIFICATION OF EMPLOYMENT APPLICATION CONCERNING THE PROPRIETY OF PAYMENT TO ARMANDO LUIS HERRERA OF UNPAID COMPENSATION AS A FORMER EMPLOYEE IN THE DEPARTMENT OF NURSING AT WILLIAM BEAUMONT GENERAL HOSPITAL, EL PASO, TEX. AS A GENERAL RULE, WHERE FALSIFICATION OF AN EMPLOYEE'S APPLICATION IS PROHIBITED BY STATUTE, RECOVERY MUST BE MADE OF THE SUM PAID FOR THE ENTIRE PERIOD OF EMPLOYMENT. HOWEVER, PERSONNEL OF THE DEPARTMENT OF DEFENSE ARE EXEMPTED FROM SUCH STATUTORY PROHIBITION. IN THE INSTANT CASE, THE EMPLOYEE'S MISREPRESENTATION PRECLUDES HIS ENTITLEMENT TO UNPAID COMPENSATION AND PAYMENT OF THE SUBJECT AMOUNT IS NOT AUTHORIZED. COMP. GEN. 175 (1958).

TO COLONEL C. E. FORD:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1971, REQUESTING A DETERMINATION AS TO WHETHER UNPAID COMPENSATION IN THE NET AMOUNT OF $36.40 MAY PROPERLY BE PAID TO MR. ARMANDO LUIS HERRERA, FORMERLY EMPLOYED AS A STUDENT AID IN THE DEPARTMENT OF NURSING AT WILLIAM BEAUMONT GENERAL HOSPITAL, EL PASO, TEXAS.

THE RECORD INDICATES THAT MR. HERRERA WAS FIRST EMPLOYED AS SUMMER HELP ON JUNE 9, 1971, AND THAT ON HIS APPLICATION HE STATED THAT HE WAS A UNITED STATES CITIZEN AND LISTED HIS BIRTHPLACE AS EL PASO, TEXAS. MADE THE SAME STATEMENTS AT THE TIME OF HIS SECOND APPOINTMENT ON SEPTEMBER 1, 1971. ON NOVEMBER 26, 1971, THE IMMIGRATION AND NATURALIZATION SERVICE NOTIFIED YOUR CIVILIAN PERSONNEL OFFICE THAT MR. HERRERA HAD BEEN APPREHENDED AS AN ILLEGAL ALIEN AT THE MEXICAN BORDER AND REFUSED ENTRY INTO THE COUNTRY. FROM THE TIME OF HIS FIRST APPOINTMENT, MR. HERRERA HAD BEEN COMPENSATED IN THE NET AMOUNT OF $867.57 AND AT THE TIME HE WAS DEPORTED HE WAS DUE 24 BASE HOURS OF PAY IN THE NET AMOUNT OF $36.40.

YOUR CIVILIAN PERSONNEL OFFICE HAS INDICATED THAT THEY ARE RESTRICTED FROM THE HIRING OF ALIENS AND THAT HAD IT BEEN KNOWN THAT MR. HERRERA WAS NOT A CITIZEN, HE WOULD NOT HAVE BEEN HIRED. IT HAS LONG BEEN HELD THAT WHERE THE FALSIFICATION IN AN EMPLOYEE'S APPLICATION INVOLVES AN ABSOLUTE BAR TO HIS EMPLOYMENT, THE STATUS RESULTING FROM HIS MISREPRESENTATION FORMS NO BASIS FOR A CLAIM TO COMPENSATION THAT HAS NOT ALREADY BEEN PAID. SEE 38 COMP. GEN. 175 (1958) AND DECISIONS CITED THEREIN. IN THE CASE OF A STATUTORY PROHIBITION, GENERALLY, THE SUM PAID FOR THE ENTIRE PERIOD OF EMPLOYMENT IS FOR RECOVERY. HOWEVER, IT IS NOTED THAT PERSONNEL OF THE DEPARTMENT OF DEFENSE ARE EXEMPTED BY PROVISIONS IN THE APPLICABLE APPROPRIATION ACTS FROM THE STATUTORY PROHIBITION AGAINST THE EMPLOYMENT OF PERSONS NOT CITIZENS OF THE UNITED STATES.

YOU ARE ADVISED THAT PAYMENT OF THE UNPAID COMPENSATION IN THE NET AMOUNT OF $36.40 IS NOT AUTHORIZED.