Comments on American Battle Monuments Employees' Request for Reconsideration of Prior Decision

B-138913: Jan 28, 1963

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A guard employed in the Philippines protested his wage rate with the American Battle Monuments Commission, contending that as an American citizen he was entitled to the difference between U.S. citizen and non-citizen pay rates for the entire period of his service with the agency. GAO found that it was the intent of the agency to fill the position of guards with aliens and as there was apparent misrepresentation by the protester at the time of hire as to his citizenship, or at least a failure to disclose his American citizenship when he knew that Filipino citizenship was one of the conditions of employment, the protester is only entitled to receive alien wages until the date he was restored to duty at the recommendation of the Civil Service Commission. By restoring the protester to duty, however, the agency in effect waived the requirement that the position of guard be filled by an alien and thus the protester is entitled to receive American wages from the date of such restoration. Accordingly, the protest was sustained, and GAO recommended that a settlement be issued for the amount found due.

B-138913, JAN. 28, 1963

 

TO [REDACTED]:

YOUR REGISTERED LETTER NO. 15861 OF DECEMBER 5, 1962, REQUESTS RECONSIDERATION OF THE PRIOR ACTION OF OUR OFFICE IN DISALLOWING YOUR CLAIM FOR THE DIFFERENCE BETWEEN UNITED STATES CITIZEN AND NON-CITIZEN PAY RATES FOR THE ENTIRE PERIOD OF YOUR SERVICE WITH THE AMERICAN BATTLE MONUMENTS COMMISSION.

THE MATTER WAS THE SUBJECT OF OUR DECISION OF APRIL 1, 1959, TO YOU, B- 138913, SUSTAINING THE PRIOR DISALLOWANCE OF YOUR CLAIM. WE HAVE AGAIN REVIEWED YOUR CLAIM IN THE LIGHT OF A MORE RECENT DECISION IN ANOTHER CASE, NAMELY B-144081 OF MARCH 16, 1961.

THE RECORD SHOWS THAT THE POSITION OF GUARD HELD BY YOU IN THE PHILIPPINES WAS SET UP TO BE FILLED BY FILIPINO CITIZENS, AND THE SALARY TO BE PAID IN PHILIPPINE CURRENCY. WHEN YOU ACCEPTED THE POSITION OF GUARD IN 1951 IT WAS THE UNDERSTANDING OF THE ADMINISTRATIVE OFFICE THAT YOU WERE A FILIPINO CITIZEN AND WOULD BE PAID IN PHILIPPINE CURRENCY. THAT TIME YOU MADE NO DISCLOSURE OF YOUR AMERICAN CITIZENSHIP AND ACCEPTED THE CONDITIONS ATTACHED TO THE POSITION. YOU WORKED UNDER THOSE CONDITIONS UNTIL 1958 WHEN YOU MADE A CLAIM TO RECEIVE SALARY AT THE SAME RATE PAID AMERICAN EMPLOYEES RECRUITED FROM THE UNITED STATES AT WHICH TIME THE ADMINISTRATIVE OFFICE BECAME AWARE OF YOUR BEING AN AMERICAN CITIZEN. WHEN IT BECAME KNOWN TO THE ADMINISTRATIVE OFFICE THAT YOU WERE AN AMERICAN CITIZEN YOUR APPOINTMENT WAS SUMMARILY TERMINATED.

UPON APPEAL TO THE CIVIL SERVICE COMMISSION THE COMMISSION DETERMINED THAT YOU WERE ENTITLED TO VETERANS' PREFERENCE AND THAT YOUR SEPARATION WAS IN VIOLATION OF THE SPIRIT AND INTENT OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED (APPARENTLY A PROCEDURAL VIOLATION). THEREFORE, THE COMMISSION ORDERED YOU REINSTATED RETROACTIVELY TO THE POSITION FROM WHICH SEPARATED AND AT THE SALARY YOU WERE RECEIVING AT THE TIME OF SEPARATION, THAT IS, THE LOCAL RATE IN PESOS APPLICABLE TO FILIPINO CITIZENS. ON JULY 22, 1962, AT THE SUGGESTION OF THE COMMISSION THE POSITION HELD BY YOU WAS PLACED IN THE CLASSIFIED SERVICE AND YOU WERE PAID CLASSIFICATION ACT RATES FROM THAT DATE.

IN OUR DECISION OF MARCH 16, 1961, B-144081, IT WAS STATED THAT IT IS PROPER FOR AN AGENCY TO ESTABLISH OVERSEAS POSITIONS OF THE TYPE ORDINARILY COVERED BY THE CLASSIFICATION ACT AND, DEPENDING UPON WHETHER IT IS OCCUPIED BY A U.S. CITIZEN OR A NONCITIZEN, PAY THE INCUMBENT EITHER THE CLASSIFICATION ACT RATE, OR THE WAGE RATE PRESCRIBED ADMINISTRATIVELY AS THE CASE MIGHT BE. IT WAS ALSO STATED IN THAT DECISION THAT THE OBTAINING OF A POSITION BY MISREPRESENTATION OF CITIZENSHIP ON PART OF AN APPOINTEE--- WHEN THE AGENCY WOULD NOT HAVE EMPLOYED THE APPOINTEE EXCEPT FOR THE MISREPRESENTATION--- SHOULD BAR THE APPOINTEE FROM CLAIMING COMPENSATION ABOVE THE RATE WHICH HAD BEEN PAID BY THE AGENCY IN GOOD FAITH.

SINCE THE RECORD SHOWS THAT IT WAS THE INTENT OF THE ADMINISTRATIVE OFFICE TO FILL THE POSITION OF GUARDS WITH ALIENS AND AS THERE WAS APPARENT MISREPRESENTATION BY YOU AT THE TIME OF YOUR HIRE AS TO YOUR CITIZENSHIP, OR AT LEAST A FAILURE TO DISCLOSE YOUR AMERICAN CITIZENSHIP WHEN YOU KNEW THAT FILIPINO CITIZENSHIP WAS ONE OF THE CONDITIONS OF EMPLOYMENT, WE MUST CONCLUDE THAT YOU WERE ENTITLED TO RECEIVE ALIEN WAGES ONLY UNTIL THE DATE YOU WERE RESTORED TO DUTY AT THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION. AFTER YOU WERE RESTORED TO DUTY ON MARCH 23, 1959, THE AGENCY COULD HAVE FOLLOWED THE PROCEDURAL REQUIREMENTS AND EFFECTED YOUR SEPARATION. HOWEVER, BY NOT DOING SO SUCH AGENCY IN EFFECT WAIVED THE REQUIREMENT THAT THE POSITION OF GUARD BE FILLED BY AN ALIEN AND YOU ARE ENTITLED TO RECEIVE AMERICAN WAGES FROM THE DATE OF SUCH RESTORATION.

THEREFORE, IN DUE COURSE, A SETTLEMENT WILL ISSUE IN YOUR FAVOR IN THE AMOUNT FOUND DUE.