B-136612, DEC. 9, 1963

B-136612, DEC. 9, 1963

TO MR. JOSE GUIEB:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 23, 1963, WITH WHICH YOU ENCLOSED A COPY OF YOUR LETTER OF AUGUST 12, 1962, CLAIMING ADDITIONAL COMPENSATION FOR THE PERIOD FEBRUARY 6, 1952, TO MARCH 27, 1956, REPRESENTING THE DIFFERENCE BETWEEN THE PER ANNUM GS-2 RATE TO WHICH YOUR POSITION WAS CONVERTED ON MARCH 28, 1956, AND THE HOURLY LOCAL WAGE RATE YOU RECEIVED DURING THE SAID PERIOD, WHILE EMPLOYED AS A CIVILIAN GUARD BY THE PROVOST MARSHAL, 13TH AIR FORCE, MANILA, PHILIPPINES. THE BASIS YOU ALLEGE FOR SUCH CLAIM IS THAT YOU ARE A NATURALIZED CITIZEN OF THE UNITED STATES AND THAT "IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS AND UNDER THE EXECUTIVE ORDER OF THE PRESIDENT" CITIZENS OF THE UNITED STATES, EMPLOYED IN UNITED STATES BASES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, WILL HAVE THE SAME PAY AS CITIZENS EMPLOYED IN THE CIVIL SERVICE WITHIN THE UNITED STATES. FURTHER, YOU SAY THAT AFTER YOUR POSITION WAS CONVERTED TO THE GS-2 $2,960 PER ANNUM RATE, NO FURTHER ACTION OR ADJUSTMENT WAS TAKEN REGARDING YOUR STATUS UNTIL YOU WERE SEPARATED BY A REDUCTION IN FORCE ON OCTOBER 22, 1957. HOWEVER, BECAUSE OF SOME INFORMATION--- WHICH YOU SAY CAME "FROM A GOOD SOURCE"--- YOU REQUEST THAT THE ABOVE PERIOD OF EMPLOYMENT BE CONSIDERED TO HAVE BEEN AS REGULAR CIVIL SERVICE GS-2.

OUR RECORDS SHOW THAT ON AUGUST 29, 1957, YOU PRESENTED TO THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, A CLAIM FOR SUCH ADDITIONAL COMPENSATION FOR THE SAME PERIOD AND YOU SUBMITTED ANOTHER CLAIM OF THE SAME NATURE TO THIS OFFICE ON OCTOBER 10, 1957. BOTH OF SUCH CLAIMS WERE BASED ON YOUR MILITARY SERVICE AS A MEMBER OF THE PHILIPPINE SCOUTS FROM 1925 TO 1948, BY VIRTUE OF WHICH SERVICE, YOU SAID, YOU HAD ACQUIRED NATURALIZED UNITED STATES CITIZENSHIP. YOUR CLAIM WAS DISALLOWED IN OUR SETTLEMENT OF MARCH 19, 1958, AND THE SETTLEMENT WAS SUSTAINED FOR THE REASONS STATED IN OUR DECISIONS OF OCTOBER 31, 1958, AND APRIL 8, 1959, B-136612, RESPONDING TO YOUR LETTERS OF JUNE 9, 1958, AND JANUARY 2, 1959, RESPECTIVELY.

AS TO THE LAST TWO PARAGRAPHS OF YOUR LETTER OF AUGUST 12, 1962, WE MAY INFORM YOU THAT ON AN INDIVIDUAL CASE BASIS THE COMPENSATION RATES OF CERTAIN FILIPINO EMPLOYEES OF THE UNITED STATES HAVE BEEN RECONSIDERED BY US BASED UPON ADEQUATE PROOF (1) BY OFFICIAL DOCUMENTARY EVIDENCE THAT A PARTICULAR INDIVIDUAL BECAME A NATURALIZED CITIZEN ON A SPECIFIC DATE, (2) THAT SUCH PROOF OF CITIZENSHIP WAS SHOWN TO THE APPOINTING OFFICER AT THE TIME OF EMPLOYMENT, OR (3) THAT THE EMPLOYEE HAD FURNISHED THE APPOINTING OFFICER NOTICE OR GOOD REASON TO BELIEVE THE APPOINTEE HAD UNITED STATES CITIZENSHIP AT THE TIME OF APPOINTMENT TO A POSITION PROPERLY CLASSIFIED FOR PURPOSES OF THE CLASSIFICATION ACT SO THAT THE EMPLOYEE'S PAY RATE WOULD BE SUBJECT TO ADJUSTMENT BASED UPON AN ADEQUATE PROOF OF HIS CITIZENSHIP AT THE TIME.

THERE IS NOTHING OF RECORD HERE--- OTHER THAN YOUR BARE ALLEGATION MADE SUBSEQUENT TO THE PERIOD OF YOUR CLAIM--- TO INDICATE THAT YOU ENTERED ANY PROTEST DURING THE PERIOD FEBRUARY 6, 1952, TO MARCH 27, 1956, CONCERNING YOUR PAY RATE OR JOB CLASSIFICATION GRADE OR OTHERWISE INDICATING THAT THE CONDITIONS OUTLINED ABOVE HAVE BEEN SATISFIED IN YOUR CASE. THE RECORD SHOWS THAT THE ADMINISTRATIVE MATTER CONCERNING PAYMENT OF CLASSIFICATION ACT RATES TO FILIPINO PERSONNEL IN POSITIONS SUCH AS YOU HELD AT THE TIME AROSE ON OR ABOUT JUNE 27, 1955. IN THAT REGARD, WE HAVE A COPY OF YOUR STATEMENT DATED NOVEMBER 10, 1955, BY WHICH YOU INFORMED YOUR EMPLOYING OFFICE "I DESIRE OF MY OWN FREE WILL TO REMAIN IN MY PRESENT POSITION AT MY PRESENT RATE OF PAY UNTIL U.S. SPACES ARE AVAILABLE.' THE DOCTRINE OF PROMISSORY ESTOPPEL APPLIES WHEN A PROMISE WHICH IS MADE WITH THE INTENTION THAT IT BE RELIED UPON IS IN FACT RELIED UPON, AND A REFUSAL TO ENFORCE IT WOULD RESULT IN AN INJUSTICE OR DETRIMENT. THE AGENCY REPORTS THAT IF YOU HAD NOT SIGNED THE WAIVER, YOU WOULD HAVE BEEN SEPARATED AS A LOCAL EMPLOYEE SINCE UNITED STATES CITIZEN SPACES HAD NOT BECOME AVAILABLE. IF WE DID NOT INVOKE THE DOCTRINE TO GIVE EFFECT TO THE PROMISE (INFERENTIALLY MADE IN YOUR QUOTED STATEMENT), YOU REASONABLY COULD BE SAID TO HAVE LET THE EMPLOYING OFFICE TO RELY THEREON TO ITS DETRIMENT. THEREFORE, OUR OPINION IS THAT AS TO THAT PART OF YOUR CLAIM ARISING FROM THE DATE OF THE WAIVER STATEMENT, THE DOCTRINE DOES NOT PERMIT RECOVERY.

THEREFORE, BASED UPON THE PRESENT RECORD, WHICH FURNISHES INADEQUATE EVIDENCE IN YOUR FAVOR AS TO THE ESSENTIAL FACTS ENUMERATED ABOVE, WE MUST SUSTAIN OUR DISALLOWANCE OF YOUR CLAIM.