A-73766, APRIL 23, 1936, 15 COMP. GEN. 935

A-73766: Apr 23, 1936

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON FOUR SUPPLEMENTAL PAY ROLLS OF ORGANIZATIONS OF THE THIRTY-FOURTH INFANTRY. CONSTITUTING THE CLAIMS OF FOUR NONCOMMISSIONED OFFICERS WHO WERE REDUCED TO PRIVATES. ON THE ALLEGED BASIS THAT SUCH MEN WERE ILLEGALLY REDUCED. THE ORDERS REDUCING THESE NONCOMMISSIONED OFFICERS WERE ISSUED BY COL. THE ORDERS RESCINDING SUCH REDUCTION ORDERS WERE ISSUED BY MAJ. ORR WAS REDUCED AUGUST 14. WHITT WAS REDUCED SEPTEMBER 19. JESSE WRIGHT WAS REDUCED SEPTEMBER 18. FRY WAS REDUCED SEPTEMBER 18. WERE DATED NOVEMBER 3. OTHER ENLISTED MEN WERE APPOINTED TO FILL THE VACANCIES CAUSED BY THE ORDERED REDUCTIONS. SUCH MEN WERE NOT REDUCED.

A-73766, APRIL 23, 1936, 15 COMP. GEN. 935

PAY - HIGHER GRADE OR RATING - RANK REDUCTION ORDERS OF ARMY ENLISTED MEN RESCINDED ENLISTED MEN OF THE ARMY REDUCED IN RANK BY AN OFFICER HAVING SUCH AUTHORITY MAY NOT, ON THE ISSUANCE OF SUBSEQUENT ORDERS RESCINDING AND ANNULLING THE REDUCTION ORDERS FROM THE RESPECTIVE DATES OF ISSUANCE BECAUSE OF ALLEGED IRREGULARITY IN THE MANNER OF DETERMINATION OF THE REASONS THEREFOR, BE PAID THE HIGHER RATE OF PAY RETROACTIVELY TO DATE OF REDUCTION.

COMPTROLLER GENERAL MCCARL TO CAPT. RAY H. LARKINS, UNITED STATES ARMY, APRIL 23, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 8, 1936, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON FOUR SUPPLEMENTAL PAY ROLLS OF ORGANIZATIONS OF THE THIRTY-FOURTH INFANTRY, CONSTITUTING THE CLAIMS OF FOUR NONCOMMISSIONED OFFICERS WHO WERE REDUCED TO PRIVATES, TRANSFERRED TO OTHER ORGANIZATIONS AND PROMOTED, SUCH ORDERS SUBSEQUENTLY HAVING BEEN RESCINDED AND ANNULLED FROM THE RESPECTIVE DATES OF ISSUANCE THEREOF, ON THE ALLEGED BASIS THAT SUCH MEN WERE ILLEGALLY REDUCED.

THE ORDERS REDUCING THESE NONCOMMISSIONED OFFICERS WERE ISSUED BY COL. JOHN R. BREWER, INFANTRY, UNITED STATES ARMY, COMMANDING OFFICER, HEADQUARTERS THIRTY-FOURTH INFANTRY, AND THE ORDERS RESCINDING SUCH REDUCTION ORDERS WERE ISSUED BY MAJ. HARRIS M. MELOSKY, AS SUCCEEDING COMMANDING OFFICER, HEADQUARTERS, THIRTY-FOURTH INFANTRY, PURSUANT TO INSTRUCTIONS OF MAJOR GENERAL BOWLEY, HEADQUARTERS, THIRD CORPS AREA. THOMAS F. ORR WAS REDUCED AUGUST 14, 1935, FROM MASTER SERGEANT TO PRIVATE, HEADQUARTERS COMPANY, THIRTY-FOURTH INFANTRY, TRANSFERRED TO COMPANY C, AND APPOINTED STAFF SERGEANT, AGAIN REDUCED SEPTEMBER 18, 1935, TO PRIVATE, TRANSFERRED TO SERVICE COMPANY, THIRTY-FOURTH INFANTRY, AND APPOINTED STAFF SERGEANT. HOWARD C. WHITT WAS REDUCED SEPTEMBER 19, 1935, FROM FIRST SERGEANT TO PRIVATE, COMPANY G, THIRTY FOURTH INFANTRY. JESSE WRIGHT WAS REDUCED SEPTEMBER 18, 1935, FROM STAFF SERGEANT TO PRIVATE, SERVICE COMPANY, THIRTY-FOURTH INFANTRY, TRANSFERRED TO COMPANY E, AND APPOINTED SERGEANT, AGAIN REDUCED SEPTEMBER 25, 1935, TO PRIVATE, TRANSFERRED TO SERVICE COMPANY AND RATED OCTOBER 7, 1935, SPECIALIST SIXTH CLASS. HORACE W. FRY WAS REDUCED SEPTEMBER 18, 1935, FROM SERGEANT TO PRIVATE, COMPANY B, THIRTY-FOURTH INFANTRY, AND PROMOTED SEPTEMBER 23, 1935, TO PRIVATE FIRST CLASS. THE ORDERS PURPORTING TO RESCIND AND ANNUL ALL THE ORDERS EFFECTING THESE CHANGES IN GRADES, WERE DATED NOVEMBER 3, 1935. OTHER ENLISTED MEN WERE APPOINTED TO FILL THE VACANCIES CAUSED BY THE ORDERED REDUCTIONS, AND SUCH MEN WERE NOT REDUCED, BUT WERE, UPON RECOMMENDATION OF THE CORPS AREA COMMANDER, APPROVED BY THE SECRETARY OF WAR, ORDERED TO BE CARRIED AS EXTRA MEMBERS UNTIL ABSORBED BY FUTURE VACANCIES IN THE NORMAL COURSE OF EVENTS. THE LEGALITY OF PAYMENT TO THESE LATTER NONCOMMISSIONED OFFICERS FROM THE DATE OF RESTORATION OF THE FORMER NONCOMMISSIONED OFFICERS TO THE GRADES THEY HELD PRIOR TO THEIR REDUCTION IS NOT AT THIS TIME CONSIDERED.

WHILE THE ORDERS REDUCING THESE MEN WERE ISSUED BY THE OFFICER AUTHORIZED BY ARMY REGULATIONS 615-5 TO TAKE SUCH ACTION, IT IS STATED THAT THEY WERE ALL ILLEGAL BECAUSE EACH OF SUCH ORDERS WAS ISSUED WITHOUT FULL OR PROPER COMPLIANCE WITH, AND, THEREFORE, IN VIOLATION OF ONE OR MORE OF THE MANDATORY PROVISIONS OF PERTINENT ARMY REGULATIONS. THE ORDERS RECITE THAT ORR REQUESTED REDUCTION, BUT IT IS STATED THAT HIS RESIGNATION OF HIS WARRANT WAS FORCED BY PRESSURE EXERTED BY THE REGIMENTAL COMMANDER THROUGH THE REGIMENTAL ADJUTANT, BASED ON ILL-FOUNDED AND UNJUST CHARGES OF MISCONDUCT AND INEFFICIENCY, THAT WRIGHT'S IMMEDIATE COMMANDING OFFICER DID NOT SUBMIT A REPORT OF INEFFICIENCY OR MISCONDUCT, BUT ACTION WAS BASED UPON A COMMUNICATION FROM AN ACTING COMMANDING OFFICER DURING THE ABSENCE OF THE REGULARLY ASSIGNED OFFICER AND SIMILAR IRREGULARITIES WERE CHARGED AS TO THE OTHER MEN. THE CLAIMED ILLEGALITY APPEARS TO BE DUE TO ALLEGED IRREGULARITY IN THE MANNER OF DETERMINATION OF THE REASONS FOR THE REDUCTIONS. WHATEVER MAY HAVE BEEN THE CAUSE OF THE REDUCTIONS, THE FACT REMAINS THAT THE REDUCTIONS WERE EFFECTED BY THE OFFICER HAVING THE AUTHORITY TO TAKE SUCH ACTION. THE ORDERS WERE CARRIED INTO EXECUTION AND THESE MEN WERE ACTUALLY REDUCED AND SERVED IN THE LOWER GRADES. REGIMENTAL COMMANDER WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL IS AUTHORIZED TO APPOINT ALL NONCOMMISSIONED OFFICERS OF THE REGIMENT (A.R. 615/5, PAR. 5C). HE HAS AUTHORITY TO TRANSFER ENLISTED MEN WITHIN HIS COMMAND WITH EXCEPTIONS NOT HERE MATERIAL (A.R. 615/211, PAR. 9C). AND HE HAS AUTHORITY TO REDUCE FOR MISCONDUCT OR INEFFICIENCY NONCOMMISSIONED OFFICERS WITHIN HIS COMMAND WHOM HE IS AUTHORIZED TO APPOINT (A.R. 615/5, PAR. 13A). THE METHOD PRESCRIBED IN THE LAST-CITED PARAGRAPH FOR ASCERTAINING OR DETERMINING MISCONDUCT OR INEFFICIENCY IS NOT MANDATORY BUT DIRECTORY ONLY; FROM THE VERY NATURE OF HIS OFFICE IT IS PLAIN THE REGULATIONS DO NOT OPERATE TO LIMIT THE REGIMENTAL COMMANDER FROM ACTING ON HIS OWN KNOWLEDGE IN REDUCING A NONCOMMISSIONED OFFICER OF HIS COMMAND FOR INEFFICIENCY, OR FROM REDUCING SUCH A NONCOMMISSIONED OFFICER FOR MISCONDUCT COMMITTED IN THE REGIMENTAL COMMANDER'S PRESENCE. HIS FAILURE TO ADOPT THE PROCEDURE INDICATED IN THE REGULATIONS IN SOME CIRCUMSTANCES MAY BE A BASIS FOR INVESTIGATION BY THE WAR DEPARTMENT AND MAY REFLECT UPON HIS ABILITY AS A REGIMENTAL COMMANDER, BUT FAILURE TO ADOPT THE PROCEDURE INDICATED IN THE REGULATIONS DOES NOT INVALIDATE THE ACTION TAKEN BY HIM IN REDUCING A NONCOMMISSIONED OFFICER HE IS AUTHORIZED TO APPOINT OR TO TRANSFER WITHIN HIS COMMAND.

THE NUMBER OF ENLISTED MEN IN THE VARIOUS GRADES IS PRESCRIBED BY SECTION 4B OF THE NATIONAL DEFENSE ACT AS AMENDED, 43 STAT. 470, AND REGULATIONS NECESSARY TO CARRY INTO EFFECT SUCH PROVISIONS HAVE BEEN PROMULGATED TO THE SERVICE IN THE FORM OF TABLES OF ORGANIZATION WHICH ALLOCATE A GIVEN NUMBER OF NONCOMMISSIONED OFFICERS FOR A PARTICULAR ORGANIZATION, AND PARAGRAPH 1, ARMY REGULATIONS 615-5, PROVIDES THAT APPOINTMENTS WILL CONFORM STRICTLY TO SUCH TABLES. IT SEEMS CLEAR UNDER THE LAW AND THE REGULATIONS PROMULGATED IN PURSUANCE THEREOF THAT DURING THE PERIOD COVERED BY THESE VOUCHERS THERE WAS NO AUTHORITY TO PAY NONCOMMISSIONED OFFICERS IN EXCESS OF THE NUMBERS PRESCRIBED FOR THESE ORGANIZATIONS. ENLISTED MAN IS ENTITLED TO THE PAY AND ALLOWANCES ONLY OF THE GRADE HELD BY HIM AND IT WOULD APPEAR THAT THESE MEN HAVE BEEN CREDITED WITH THE PAY OF THEIR GRADES.

YOU ARE ADVISED THAT PAYMENT IS NOT AUTHORIZED ON THE VOUCHERS WHICH WILL BE RETAINED IN THIS OFFICE.