A-61698, MAY 13, 1935, 14 COMP. GEN. 828

A-61698: May 13, 1935

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PAY - PERIODS - ARMY AIR CORPS OFFICER - TEMPORARY RANK AN OFFICER WHO WAS APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT AS AMENDED (41 STAT. 771). WHO WHILE SERVING IN THE AIR CORPS IN SUCH RANK WAS ASSIGNED UNDER SECTION 3 OF THE ACT OF JULY 2. IS ENTITLED TO PAY AND ALLOWANCES OF THE FIFTH PERIOD. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH. - THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO ASSIGN. THAT SUCH TEMPORARY RANK IS LIMITED TO TWO GRADES ABOVE THE PERMANENT RANK OF THE OFFICER APPOINTED: PROVIDED FURTHER. THAT NO OFFICER SHALL BE TEMPORARILY ADVANCED IN RANK AS CONTEMPLATED IN THIS SECTION UNLESS THE CHIEF OF THE AIR CORPS CERTIFIES THAT NO OFFICERS OF SUITABLE PERMANENT RANK ARE AVAILABLE FOR THE DUTY REQUIRING THE INCREASED RANK: AND PROVIDED FURTHER.

A-61698, MAY 13, 1935, 14 COMP. GEN. 828

PAY - PERIODS - ARMY AIR CORPS OFFICER - TEMPORARY RANK AN OFFICER WHO WAS APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT AS AMENDED (41 STAT. 771), WITH RANK OF CAPTAIN, AND WHO WHILE SERVING IN THE AIR CORPS IN SUCH RANK WAS ASSIGNED UNDER SECTION 3 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, BY THE SECRETARY OF WAR TO DUTY AS ASSISTANT CHIEF OF STAFF, WITH THE TEMPORARY RANK OF LIEUTENANT COLONEL, IS ENTITLED TO PAY AND ALLOWANCES OF THE FIFTH PERIOD, UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922 (42 STAT. 625).

COMPTROLLER GENERAL MCCARL TO CAPT. J. H. DOHERTY, UNITED STATES ARMY, MAY 13, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 5, 1935, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH, CONSTITUTING THE CLAIM OF LT.COL. (T) GEORGE C. KENNEY, AIR CORPS, UNITED STATES ARMY, FOR THE DIFFERENCE BETWEEN PAY OF THE FOURTH PERIOD AND FIFTH PERIOD, FROM MARCH 2, TO 31, 1935, WHILE ASSIGNED TO DUTY AS ASSISTANT CHIEF OF STAFF, G-3, AIR CORPS,WITH TEMPORARY INCREASED RANK FROM CAPTAIN TO LIEUTENANT COLONEL, UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JULY 2, 1926 (44 STAT. 782), PROVIDING AS FOLLOWS:

TEMPORARY RANK FOR AIR CORPS OFFICERS.--- THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO ASSIGN, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, OFFICERS OF THE AIR CORPS TO FLYING COMMANDS, INCLUDING WINGS, GROUPS, SQUADRONS, FLIGHTS, SCHOOLS, IMPORTANT AIR STATIONS, AND TO STAFFS OF COMMANDERS OF TROOPS, WHICH ASSIGNMENT SHALL CARRY WITH IT TEMPORARY RANK, INCLUDING PAY AND ALLOWANCES APPROPRIATE TO SUCH RANK, AS DETERMINED BY THE SECRETARY OF WAR, FOR THE PERIOD OF SUCH ASSIGNMENTS: PROVIDED, THAT SUCH TEMPORARY RANK IS LIMITED TO TWO GRADES ABOVE THE PERMANENT RANK OF THE OFFICER APPOINTED: PROVIDED FURTHER, THAT NO OFFICER SHALL BE TEMPORARILY ADVANCED IN RANK AS CONTEMPLATED IN THIS SECTION UNLESS THE CHIEF OF THE AIR CORPS CERTIFIES THAT NO OFFICERS OF SUITABLE PERMANENT RANK ARE AVAILABLE FOR THE DUTY REQUIRING THE INCREASED RANK: AND PROVIDED FURTHER, THAT NO OFFICER HOLDING TEMPORARY RANK UNDER THE PROVISIONS OF THIS SECTION SHALL BE ELIGIBLE TO COMMAND OUTSIDE OF HIS OWN CORPS EXCEPT BY SENIORITY UNDER HIS PERMANENT COMMISSION.

REGULATIONS PROMULGATED BY THE SECRETARY OF WAR PURSUANT TO THIS ACT, BY CIRCULAR NO. 7, WAR DEPARTMENT, DATED JANUARY 25, 1935, ARE AS FOLLOWS:

I. TEMPORARY GRADE FOR AIR CORPS OFFICERS.--- 1. TEMPORARY GRADE FOR AIR CORPS OFFICERS UNDER THE PROVISIONS OF SECTION 3, ACT OF JULY 2, 1926 (44 STAT. 782; U.S.C. 10:292A) WILL BE GOVERNED BY THE PROVISIONS OF THIS CIRCULAR.

2. WHEN AN AIR CORPS OFFICER IS ASSIGNED TO ONE OF THE POSITIONS IN THE FOLLOWING LIST AND HIS GRADE IS LOWER THAN THE GRADE INDICATED AS APPROPRIATE, HE MAY, BY APPROPRIATE WAR DEPARTMENT ORDERS, BE GIVEN TEMPORARY GRADE NOT HIGHER THAN THAT INDICATED, PROVIDED THAT---

A. SUCH TEMPORARY GRADE IS LIMITED TO TWO GRADES ABOVE THE PERMANENT GRADE OF THE OFFICER.

B. NO OFFICER WILL BE TEMPORARILY ADVANCED IN GRADE UNLESS THE CHIEF OF THE AIR CORPS CERTIFIES THAT NO OFFICERS OF SUITABLE PERMANENT GRADE ARE AVAILABLE FOR THE DUTY REQUIRING THE INCREASED GRADE.

C. NO OFFICER HOLDING TEMPORARY GRADE UNDER THE PROVISIONS OF THIS CIRCULAR WILL BE ELIGIBLE TO COMMAND OUTSIDE OF HIS OWN ARM EXCEPT BY SENIORITY UNDER HIS PERMANENT COMMISSION.

3. WHEN SUCH ASSIGNMENT IS MADE BY OTHER THAN WAR DEPARTMENT ORDERS, THE ASSIGNMENT WILL CARRY NO TEMPORARY GRADE UNTIL CONFIRMED BY WAR DEPARTMENT ORDERS WHICH WILL STATE THE TEMPORARY GRADE. THE OFFICER MAKING THE ASSIGNMENT WILL MAKE REQUEST, THROUGH CHANNELS, FOR APPROPRIATE WAR DEPARTMENT ORDERS.

4. TEMPORARY GRADE WILL BECOME EFFECTIVE ON THE DATE FIXED BY THE WAR DEPARTMENT ORDER ASSIGNING THE OFFICER (OR CONFIRMING HIS ASSIGNMENT) AND STATING THE TEMPORARY GRADE.

5. AN OFFICER ASSIGNED AND GIVEN TEMPORARY GRADE BY A WAR DEPARTMENT ORDER WILL BE RELIEVED FROM SUCH ASSIGNMENT ONLY BY A WAR DEPARTMENT ORDER, AND WILL HOLD THE TEMPORARY GRADE UNTIL SO RELIEVED.

6. TEMPORARY GRADE UNDER THE PROVISION OF THIS CIRCULAR ENTITLES THE OFFICER TO THE PAY AND ALLOWANCES APPROPRIATE TO SUCH GRADE.

CHART LIST OF POSITIONS AND APPROPRIATE TEMPORARY GRADE FOR AIR CORPS OFFICERS

(SEC. 3, ACT OF JULY 2, 1926)

POSITION GRADE G.H.Q. AIR FORCE, COMMANDER ----------------------- MAJOR GENERAL. STAFF OF COMMANDER, G.H.Q. AIR FORCE:

CHIEF OF STAFF ------------------------------- COLONEL.

ASSISTANT CHIEF OF STAFF, G-1 ---------------- LIEUTENANT COLONEL.

ASSISTANT CHIEF OF STAFF, G-2 ---------------- DO.

ASSISTANT CHIEF OF STAFF, G-3 ---------------- DO.

ASSISTANT CHIEF OF STAFF, G-4 ---------------- DO.

PARAGRAPH 28, SPECIAL ORDERS NO. 35, WAR DEPARTMENT, DATED FEBRUARY 11, 1935, ASSIGNING CAPTAIN KENNEY TO DUTY IN THE AIR CORPS WITH TEMPORARY RANK OF LIEUTENANT COLONEL, READS AS FOLLOWS:

28. EFFECTIVE MARCH 2, 1935, THE FOLLOWING NAMED OFFICERS OF THE AIR CORPS ARE ASSIGNED TO DUTY ON THE STAFF OF THE COMMANDER, GENERAL HEADQUARTERS AIR FORCE, AS HEREINAFTER INDICATED, WITH STATION AT LANGLEY FIELD, VIRGINIA. THE CHIEF OF THE AIR CORPS HAVING CERTIFIED THAT NO OFFICERS OF SUITABLE PERMANENT RANK OR AVAILABLE FOR THESE DUTIES, THE OFFICERS NAMED WILL HAVE THE TEMPORARY RANK SET OPPOSITE THEIR NAMES FOR THE PERIOD OF THEIR RESPECTIVE ASSIGNMENTS:

CHART

TEMPORARY

RANK AND NAME PRESENT STATION NEW ASSIGNMENT RANK CAPT. GEORGE C. KENNEY. OFFICE, CHIEF OF ASSISTANT CHIEF LIEUTENANT

THE AIR CORPS, OF STAFF, G-3 COLONEL

WASHINGTON, D.C.

EACH OFFICER NAMED IS RELIEVED FROM HIS PRESENT ASSIGNMENT AND DUTIES AT THE STATION SPECIFIED AFTER HIS NAME, AND FROM ANY ADDITIONAL DUTY TO WHICH HE MAY BE ASSIGNED, EFFECTIVE AT SUCH TIME AS WILL ENABLE HIM TO COMPLY WITH THIS ORDER, AND WILL PROCEED AT THE PROPER TIME TO LANGLEY FIELD AND REPORT NOT LATER THAN MARCH 1, 1935, TO THE COMMANDER, GENERAL HEADQUARTERS AIR FORCE.

SECTION 1 OF THE ACT OF JUNE 10, 1922 (42 STAT. 625) PROVIDES:

THE PAY OF THE FIFTH PERIOD SHALL BE PAID TO * * * LIEUTENANT COLONELS OF THE ARMY * * * WHO HAVE COMPLETED TWENTY YEARS' SERVICE, OR WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO CAPTAIN IN THE ARMY, OR WHO WERE APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SAID SECTION 24; (ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920 * * *.

THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO LIEUTENANT COLONELS OF THE ARMY * * * WHO ARE NOT ENTITLED TO THE PAY OF THE FIFTH OR SIXTH PERIOD.

THE OFFICIAL ARMY REGISTER, 1935, AT PAGE 376, SHOWS CLAIMANT'S MILITARY SERVICES TO BE:

PVT. 1 CL. AV. SEC. SIG. E.R.C. 2 JUNE 17 TO 8 NOV. 17; 1 LT. AV. SEC. SIG. O.R.C. 5 NOV. 17; ACCEPTED 8 NOV. 17; ACTIVE DUTY 9 NOV. 17; CAPT. A.S. U.S.A. 18 MAR. 19; ACCEPTED 18 MAR. 19; VACATED 21 SEPT. 20.--- CAPT. A.S. 1 JULY 20; ACCEPTED 21 SEPT. 20; (A) 1 LT. (NOV. 18, 22); CAPT. 3 NOV. 23.

MARGINAL NOTE---

(A) DISCHARGED AS CAPTAIN AND APPOINTED FIRST LIEUTENANT NOV. 18, 22; ACTS JUNE 30, 22 AND SEPT. 14, 22.

THE ACT OF JULY 2, 1926, CITED, PROVIDES THAT THE ASSIGNMENT BY THE SECRETARY OF WAR OF OFFICERS OF THE AIR CORPS TO FLYING COMMANDS SHALL CARRY TEMPORARY RANK "INCLUDING PAY AND ALLOWANCES APPROPRIATE TO SUCH RANK.' THE REGULATIONS FIX THE RANK FOR THE DUTIES ASSIGNED IN THIS CASE AS LIEUTENANT COLONEL. THE BASE PAY OF LIEUTENANT COLONEL MAY BE IN ANY ONE OF THREE PAY PERIODS, NOT BASED ON ANY STANDARD OF EFFICIENCY, BUT BY REASON OF LENGTH OF SERVICE OR CIRCUMSTANCES OF ENTERING THE SERVICE. OFFICER HOLDING THE RANK OF LIEUTENANT COLONEL IS ENTITLED TO BASE PAY OF THE SIXTH PERIOD IF HE HAS COMPLETED 30 YEARS' SERVICE; TO PAY OF THE FIFTH PERIOD (1) IF HE HAS COMPLETED 20 YEARS' SERVICE, (2) IF HIS FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO CAPTAIN IN THE ARMY, OR (3) IF APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT; AND TO PAY OF THE FOURTH PERIOD IF NOT WITHIN THE CONDITIONS PRESCRIBED FOR THE FIFTH OR SIXTH PERIOD. THE SERVICE RECORD OF THIS OFFICER SHOWS THAT HIS FIRST APPOINTMENT IN THE REGULAR ARMY WAS IN THE GRADE OF CAPTAIN AND THAT HE HAS COMPLETED LESS THAN 20 YEARS' SERVICE. IT WOULD APPEAR, HOWEVER, THAT HE WAS APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT. SUCH STATUTE PROVIDED THAT NOT LESS THAN ONE-HALF OF THE TOTAL NUMBER OF VACANCIES CREATED THEREBY SHOULD BE FILLED, SUBJECT TO SUCH EXAMINATION AS THE PRESIDENT MAY PRESCRIBE BY PERSONS OTHER THAN OFFICERS OF THE REGULAR ARMY WHO SERVED AS OFFICERS OF THE UNITED STATES ARMY DURING THE WORLD WAR. WHILE CLAIMANT'S ORIGINAL APPOINTMENT WAS IN THE RANK OF CAPTAIN, IT NEVERTHELESS, WAS MADE UNDER THE PROVISIONS OF SECTION 24 OF THE CITED ACT, AND THE PLACING OF LIEUTENANT COLONELS WHO ENTERED THE REGULAR ARMY IN THAT MANNER, IN THE FIFTH PERIOD WITHOUT REGARD TO LENGTH OF SERVICE, WOULD APPEAR TO HAVE AS ITS PURPOSE THE PLACING OF HIM MORE NEARLY ON A PARITY WITH OFFICERS OF THE REGULAR SERVICE WHO NORMALLY WOULD BENEFIT BY REASON OF A LONGER PERIOD OF SERVICE. SEE HOUSE REPORT 926, PART 2, SIXTY-SEVENTH CONGRESS, SECOND SESSION, PAGES 7 AND 8. THERE APPEARS NOTHING WHICH WOULD LIMIT THE APPLICATION OF THIS EXCEPTION TO THE OFFICERS ORIGINALLY APPOINTED IN THE RANK OF LIEUTENANT COLONEL. INDEED, IF IT WERE APPLICABLE ONLY TO OFFICERS WHO WERE APPOINTED TO THE REGULAR ARMY UNDER THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT, AS AMENDED, JUNE 4, 1920, IN THE RANK OF LIEUTENANT COLONEL THE PROVISION WOULD BE SUPERFLUOUS AS THE OFFICER WOULD HAVE BEEN APPOINTED TO THE REGULAR ARMY AS A LIEUTENANT COLONEL-- A GRADE ABOVE THAT OF CAPTAIN--- AND HE WOULD BE ENTITLED TO FIFTH PERIOD PAY UNDER THAT EXCEPTION. THE PROVISION, THEREFORE, IS CLEARLY APPLICABLE TO OFFICERS WHO ENTERED THE SERVICE IN A LOWER RANK AND WERE THEREAFTER ADVANCED PURSUANT TO LAW TO THE RANK OF LIEUTENANT COLONEL. ACCORDINGLY, YOU ARE ADVISED THAT CLAIMANT'S RANK AND SERVICE SHOW HIM TO BE ENTITLED TO PAY OF THE FIFTH PERIOD, AND PAYMENT IS AUTHORIZED ON THE VOUCHER IF OTHERWISE CORRECT.