B-144301, JAN. 27, 1961

B-144301, JAN. 27, 1961

TO MAJOR WILLIAM GOODE, AUS:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1960, IN REGARD TO OUR DECISION TO YOU DATED NOVEMBER 22, 1960, B-144301, IN WHICH YOU WERE ADVISED THAT YOUR CLAIMS FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND THE PAY AND ALLOWANCES OF A CAPTAIN FOR THE PERIOD DECEMBER 30, 1950, TO JULY 30, 1951, AND FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A CAPTAIN AND THE PAY AND ALLOWANCES OF A MAJOR FOR THE PERIOD JULY 31, 1958, TO MARCH 30, 1960, PROPERLY HAD BEEN DISALLOWED BY OUR OFFICE, SINCE YOU HAD BEEN PAID AS A CAPTAIN AND AS A MAJOR FROM THE DATES OF THE ANNOUNCEMENTS OF YOUR PROMOTIONS TO THOSE GRADES.

YOUR PRESENT LETTER IS IN REGARD TO THE CLAIM FOR DIFFERENCE BETWEEN PAY AND ALLOWANCES OF A CAPTAIN AND THE PAY AND ALLOWANCES OF A MAJOR AND REFERS TO A TWO-PART ENCLOSURE WHICH WAS FORWARDED WITH YOUR CLAIMS. PART ONE OF THE ENCLOSURE WAS A COPY OF A COMMUNICATION DATED JANUARY 18, 1952, FROM HEADQUARTERS, 24TH TRANSPORTATION TRUCK BATTALION, U.S. ARMY, TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, STATING THAT A RECOMPUTATION OF YOUR TIME IN GRADE HAD DISCLOSED THAT YOUR DATE OF RANK AS A FIRST LIEUTENANT WAS DECEMBER 18, 1946, AND NOT JANUARY 16, 1947, AS FORMERLY DETERMINED, AND REQUESTING WHETHER YOUR DATE OF RANK AS CAPTAIN MIGHT BE ADJUSTED TO ON OR ABOUT DECEMBER 1950, SINCE YOU WOULD HAVE RECEIVED A PROMOTION TO THAT GRADE ON OR ABOUT DECEMBER 1950, PROVIDED THAT YOU WERE OTHERWISE ELIGIBLE AND QUALIFIED FOR SUCH PROMOTION. PART TWO OF THE ENCLOSURE WAS A COPY OF A FIRST INDORSEMENT OF FEBRUARY 13, 1952, BY THE ADJUTANT GENERAL OF THE ARMY TO THE ABOVE COMMUNICATION OF JANUARY 18, 1952, STATING THAT YOUR DATE OF RANK AS FIRST LIEUTENANT HAD BEEN DETERMINED TO BE DECEMBER 16, 1946, BUT DENYING THE REQUEST TO ADJUST YOUR DATE OF RANK AS CAPTAIN, SINCE IT COULD NOT THEN BE DETERMINED WHETHER YOU WOULD HAVE BEEN SELECTED FOR PROMOTION IF YOUR NAME HAD BEEN SUBMITTED TO THE BOARD THAT CONSIDERED FIRST LIEUTENANTS DURING 1950.

YOU REFER TO THE FACT THAT ADJUSTMENT OF YOUR DATE OF RANK AS CAPTAIN TO DECEMBER 1950 WAS DENIED ON FEBRUARY 13, 1952, BUT WITHOUT ANY FURTHER ACTION BY YOU, SUCH DATE OF RANK WAS ADJUSTED TO DECEMBER 30, 1950, BY SPECIAL ORDERS NO. 63, MARCH 30, 1960. YOU COMMENT ON THE FACT THAT THE ENCLOSURE WAS NOT MENTIONED IN THE DECISION OF NOVEMBER 22, 1960, AND CONTEND THAT IT IS MATERIAL TO YOUR CLAIM FOR PAY AS A MAJOR, SINCE IT ESTABLISHES THAT IF THE DEPARTMENT OF THE ARMY HAD ACTED FAVORABLY UPON THE REQUEST OF JANUARY 18, 1952, FOR ADJUSTMENT OF YOUR DATE OF RANK AS CAPTAIN YOU WOULD HAVE BEEN PROMOTED TO MAJOR ON AUGUST 28, 1958.

ANOTHER ENCLOSURE WHICH WAS FORWARDED WITH YOUR CLAIMS WAS A COPY OF A LETTER TO YOU DATED APRIL 12, 1960, FROM THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY, DEPARTMENT OF THE ARMY, WHICH WAS, IN PERTINENT PART, AS FOLLOWS:

"2. YOU WERE CONSIDERED AND SELECTED FOR TEMPORARY PROMOTION BY AN ARMY SELECTION BOARD THAT ADJOURNED ON 14 JULY 1959, BASED ON AN ERRONEOUS AUS PROMOTION ELIGIBILITY DATE OF 31 JULY 1951 IN THE GRADE OF CAPTAIN. THIS ZONE INCLUDED OFFICERS WITH AN AUS PROMOTION ELIGIBILITY DATE OF 31 MAY 1952 OR EARLIER. YOU SHOULD HAVE BEEN CONSIDERED BY THE ARMY SELECTION BOARD THAT ADJOURNED ON 22 NOVEMBER 1957, BASED ON YOUR CORRECT AUS PROMOTION ELIGIBILITY DATE OF 30 DECEMBER 1950. THIS ZONE INCLUDED OFFICERS WITH AN AUS PROMOTION ELIGIBILITY DATE OF 31 MAY 1951 OR EARLIER. CAPTAINS WITH DATES OF RANK OF 30 DECEMBER 1950 WHO WERE SELECTED FOR PROMOTION BY THE BOARD THAT ADJOURNED ON 22 NOVEMBER 1957 WERE PROMOTED TO MAJOR ON 28 AUGUST 1958. ORDERS HAVE BEEN ISSUED PROMOTING YOU TO THE TEMPORARY GRADE OF MAJOR WITH DATE OF RANK 28 AUGUST 1958, COPY ATTACHED.

"3. PAY AND ALLOWANCES ARE EFFECTIVE ONLY FROM DATE OF PUBLICATION OF ORDERS. * * *"

YOU MAY BE ASSURED THAT NEITHER OF THE ENCLOSURES REFERRED TO ABOVE WAS OVERLOOKED IN THE CONSIDERATION OF YOUR REQUEST FOR REVIEW OF THE DISALLOWANCE OF YOUR CLAIMS. THE TWO-PART ENCLOSURE WAS NOT MENTIONED BECAUSE IT DID NOT AFFECT YOUR PAY RIGHTS. THE LETTER OF APRIL 12, 1960, WAS REFERRED TO IN THE DECISION. THAT LETTER ALSO HAD NO EFFECT UPON YOUR RIGHT TO PAY AS A MAJOR SINCE IT, LIKE THE REQUEST OF JANUARY 18, 1952, WAS MERELY AN EXPRESSION OF AN OPINION THAT YOU WOULD HAVE BEEN PROMOTED TO THE GRADE OF MAJOR AT AN EARLIER DATE IF THERE HAD BEEN TIMELY ADJUSTMENT OF YOUR DATE OF RANK AS CAPTAIN. THE DECISION ALSO REFERRED TO YET ANOTHER ENCLOSURE, A COPY OF PARAGRAPH 14 OF SPECIAL ORDERS NO. 64, DATED MARCH 31, 1960, ANNOUNCING YOUR PROMOTION TO THE GRADE OF MAJOR WITH DATE OF RANK AND PROMOTION ELIGIBILITY DATE OF AUGUST 28, 1958.

AS YOU WERE ADVISED IN THE DECISION OF NOVEMBER 22, 1960, UNDER THE PROVISIONS OF PERTINENT STATUTES AND THE DECISIONS OF THE ACCOUNTING OFFICERS, IN THE ABSENCE OF A STATUTE AUTHORIZING PAY OF THE HIGHER GRADE FROM AN EARLIER DATE, WHEN AN OFFICER OF THE ARMY OF THE UNITED STATES IS PROMOTED TO A HIGHER GRADE THE PAY OF THAT GRADE BEGINS ON THE DATE OF THE ORDER ANNOUNCING THE PROMOTION.

YOU WERE NOT PROMOTED TO MAJOR ON AUGUST 28, 1958. YOU WERE PROMOTED TO THAT GRADE, INSOFAR AS RIGHTS TO PAY AND ALLOWANCES ARE CONCERNED, ON MARCH 31, 1960, WHEN THE PROMOTION WAS ANNOUNCED. IN THE DISPOSITION OF YOUR CASE WE WERE AND ARE RESTRICTED TO THE CONSIDERATION OF WHAT ACTUALLY HAPPENED. WE MAY NOT ALLOW A CLAIM ON THE BASIS OF WHAT MIGHT HAVE HAPPENED OR WHAT SHOULD HAVE HAPPENED. YOUR RECOURSE, UNDER SUCH CIRCUMSTANCES, WOULD BE AN APPLICATION FOR CORRECTION OF YOUR MILITARY RECORDS AND, AS STATED IN THE DECISION OF NOVEMBER 22, 1960, IT IS OUR UNDERSTANDING THAT YOU HAVE MADE SUCH AN APPLICATION.

UPON FURTHER CONSIDERATION, THE DECISION OF NOVEMBER 22, 1960, IS AFFIRMED.