B-104131, OCT 8, 1951

B-104131: Oct 8, 1951

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USAF: REFERENCE IS MADE TO YOUR LETTER OF JUNE 13. REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A MILITARY PAY ORDER. THE OFFICER WAS TENDERED AN APPOINTMENT AS MAJOR IN THE UNITED STATES AIR FORCE RESERVE WHICH HE ACCEPTED ON NOVEMBER 6. THAT HE WAS ORDERED TO EXTENDED ACTIVE DUTY BY PARAGRAPH 1 OF SPECIAL ORDERS NO. 168. EACH OF THE RESERVE OFFICERS NAMED THEREIN IS ORDERED TO EXTENDED ACTIVE DUTY IN HIS RESERVE GRADE FOR A PERIOD OF ONE YEAR. SIMPSON A0494419" IS AMENDED TO READ:'MAJ SEARCY L. SIMPSON A0494419' AND IS FURTHER AMENDED TO INCLUDE: 'INCREASED PAY AND ALLOWANCES WILL ACCRUE ONLY FROM THE DATE OF THIS ORDER' HOME ADDRESS 245 N. YOUR OPINION AS TO THE POSSIBLE EFFECT OF SUCH AMENDATORY ORDERS IS EXPRESSED IN YOUR LETTER AS FOLLOWS: "INCLUSION OF THE PHRASE 'INCREASED PAY AND ALLOWANCES WILL ACCRUE ONLY FROM THE DATE OF THIS ORDER' IN ORIGINAL ACTIVE DUTY ORDER.

B-104131, OCT 8, 1951

PRECIS-UNAVAILABLE

MAJOR J.F. CARPENTER, USAF:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1951, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A MILITARY PAY ORDER, TRANSMITTED THEREWITH, STATED IN FAVOR OF SEARCY L. SIMPSON, MAJOR, USAF, FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A CAPTAIN AND THOSE OF A MAJOR, FOR THE PERIOD AUGUST 22, 1950, TO APRIL 5, 1951.

IT APPEARS THAT ON OCTOBER 29, 1947, THE OFFICER WAS TENDERED AN APPOINTMENT AS MAJOR IN THE UNITED STATES AIR FORCE RESERVE WHICH HE ACCEPTED ON NOVEMBER 6, 1947, AND THAT HE WAS ORDERED TO EXTENDED ACTIVE DUTY BY PARAGRAPH 1 OF SPECIAL ORDERS NO. 168, DATED AUGUST 12, 1950, ISSUED BY HEADQUARTERS, FOURTEENTH AIR FORCE, ROBINS AIR FORCE BASE, GEORGIA. THE SAID ORDERS PROVIDE THAT BY DIRECTION OF THE PRESIDENT AND UNDER AUTHORITY OF SECTION 515 OF PUBLIC LAW 381, 80TH CONGRESS, 61 STAT. 906-908, EACH OF THE RESERVE OFFICERS NAMED THEREIN IS ORDERED TO EXTENDED ACTIVE DUTY IN HIS RESERVE GRADE FOR A PERIOD OF ONE YEAR, UNLESS SOONER RELIEVED, EFFECTIVE AUGUST 22, 1950, AND REFERS TO THE OFFICER INVOLVED AS "CAPT SEARCY L. SIMPSON." ON APRIL 6, 1951, HEADQUARTERS, FOURTEENTH AIR FORCE, ISSUED SPECIAL ORDERS NO. 68, PARAGRAPH 38 OF WHICH READS AS FOLLOWS:

"SMOP 1 SO 168 THIS HQ 12 AUG 50 PERTAINING TO OFFICERS APTD IN THE AFUS AND ORDERED TO EAD AT VARIOUS STATIONS AS READS: "CAPT SEARCY L. SIMPSON A0494419" IS AMENDED TO READ:'MAJ SEARCY L. SIMPSON A0494419' AND IS FURTHER AMENDED TO INCLUDE: 'INCREASED PAY AND ALLOWANCES WILL ACCRUE ONLY FROM THE DATE OF THIS ORDER' HOME ADDRESS 245 N. CHAMA, ALBUQUERQUE, NEW MEXICO; PROCESSING STATION PERSONNEL PROCESSING CENTER, BROOKS AFB, SAN ANTONIO, TEX. - DUTY STATION 2589TH AFRTC DOBBINS AFB, GA. (CONAC)."

YOUR OPINION AS TO THE POSSIBLE EFFECT OF SUCH AMENDATORY ORDERS IS EXPRESSED IN YOUR LETTER AS FOLLOWS:

"INCLUSION OF THE PHRASE 'INCREASED PAY AND ALLOWANCES WILL ACCRUE ONLY FROM THE DATE OF THIS ORDER' IN ORIGINAL ACTIVE DUTY ORDER, WOULD APPEAR TO ACT AS A LIMITATION ON ANY PRIOR ENTITLEMENT OF OFFICER TO PAY IN GRADE OF MAJOR SINCE NO QUESTION OF 'INCREASED' PAY WOULD ARISE FROM ORDERS WHEREIN OFFICER IS CALLED TO ACTIVE DUTY. THEREFORE, AS LIMITATION DOES NOT APPEAR TO APPLY TO PERIOD SUBSEQUENT 22 AUGUST 1950, DATE OF ACTIVE DUTY, QUESTION IS RAISED AS TO WHETHER OFFICER CONCERNED WOULD BE CONSIDERED AS HAVING BEEN ORDERED TO ACTIVE DUTY AS CAPTAIN, WITH PARAGRAPH 38, SO 58 (68), HQS FOURTEENTH AF, ROBINS AF BASE, GEORGIA, ACTING AS A PROMOTION ORDER WITH PAY AT THE HIGHER GRADE TO BECOME EFFECTIVE WITH DATE OF AMENDING ORDER, 6 APRIL 1951."

SUBSECTION (D) OF SECTION 515 OF THE ACT OF AUGUST 7, 1947, 61 STAT. 907, MADE APPLICABLE TO THE AIR FORCE BY SECTION 305 OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508, AND UNDER WHICH THE OFFICER WAS CALLED TO ACTIVE DUTY, PROVIDES AS FOLLOWS:

"TO THE EXTENT PROVIDED FROM TIME TO TIME BY APPROPRIATIONS FOR THIS PURPOSE, ANY OFFICER OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES MAY, WITH HIS OWN CONSENT, BE ORDERED TO ACTIVE FEDERAL DUTY FOR SUCH LENGTH OF TIME AS THE PRESIDENT MAY PRESCRIBE AND IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS MAY BE SO ORDERED WITHOUT HIS CONSENT. THE PRESIDENT MAY AT ANY TIME RELIEVE FROM ACTIVE DUTY ANY RESERVE OFFICER WHO IS SERVING ON ACTIVE DUTY. ANY OFFICER OF ANY RESERVE COMPONENT ORDERED INTO OR SERVING ON ACTIVE DUTY MAY, WITH HIS OWN CONSENT, BE TEMPORARILY APPOINTED IN A GRADE IN THE ARMY OF THE UNITED STATES, EITHER HIGHER OR LOWER THAN THE GRADE HELD BY HIM IN SUCH RESERVE COMPONENT, AND SUCH TEMPORARY APPOINTMENT SHALL NOT AFFECT THE APPOINTMENT AND GRADE HELD BY HIM IN HIS RESERVE COMPONENT."

AIR FORCE REGULATION NO. 45-4, NOVEMBER 30, 1949, PRESCRIBES ELIGIBILITY REQUIREMENTS FOR VOLUNTARY CALL OR RECALL TO EXTENDED ACTIVE DUTY OF OFFICERS (OTHER THAN GENERAL OFFICERS) OF THE UNITED STATES AIR FORCE RESERVE AND AIR NATIONAL GUARD OF THE UNITED STATES. THE REGULATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"3. ELIGIBILITY. AS A RESULT OF LIMITATIONS IMPOSED FROM TIME TO TIME BY THE ANNUAL TROOP PROGRAM, THE CHIEF OF STAFF, USAF, MAY AT VARIOUS INTERVALS ADD OTHER CRITERIA SUCH AS AGE, EDUCATION, AND EFFICIENCY INDEX TO THE REQUIREMENTS LISTED BELOW. THESE WILL, OF NECESSITY, NOT BE CONSTANT, AND ANY ADDITIONS OR DELETIONS WILL BE ANNOUNCED UNDER SEPARATE DIRECTIVES. TO BE INITIALLY ELIGIBLE FOR EXTENDED ACTIVE DUTY, THE APPLICANT:

"B. MUST AGREE TO ACCEPT EXTENDED ACTIVE DUTY IN A GRADE NOT HIGHER THAN THE GRADE IN WHICH THE APPLICANT SERVED IN THE ARMY OF THE UNITED STATES, AIR FORCE OF THE UNITED STATES, OR OTHER BRANCHES OF THE ARMED SERVICES IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY, EXCEPT THAT NEWLY COMMISSIONED OFFICERS WITHOUT PRIOR MILITARY SERVICE MAY BE CALLED TO ACTIVE DUTY IN THE GRADE IN WHICH APPOINTED.

"11. ISSUANCE OF ORDERS:

"D. GRADE AND STATUS. OFFICERS WILL BE ORDERED TO DUTY IN AN AIR FORCE OF THE UNITED STATES (AFUS) GRADE AND STATUS AND NOT IN GRADE OR STATUS OF THE UNITED STATES AIR FORCE RESERVE OR AIR NATIONAL GUARD OF THE UNITED STATES. (OFFICER'S PERMANENT RESERVE GRADE WILL NOT BE AFFECTED.)"

THE OFFICE OF THE AIR ADJUTANT GENERAL HAS FURNISHED THIS OFFICE A COPY OF AF FORM 125, APPLICATION FOR EXTENDED ACTIVE DUTY WITH THE UNITED STATES AIR FORCE, EXECUTED ON JULY 17, 1950, BY THE OFFICER INVOLVED IN WHICH HE MADE APPLICATION FOR EXTENDED ACTIVE DUTY, STATING THAT HE HELD THE GRADE OF CAPTAIN IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY AND THAT THE LOWEST GRADE ACCEPTABLE TO HIM WAS THAT OF CAPTAIN. IT WAS FURTHER REPORTED THAT THE RECORDS SHOW THAT ON AUGUST 22, 1950, SEARCY L. SIMPSON EXECUTED AN OATH OF OFFICE AS CAPTAIN, AIR FORCE OF THE UNITED STATES, AT KIRTLAND AIR FORCE BASE, NEW MEXICO.

A MERE ADMINISTRATIVE ERROR IN REFERRING TO AN OFFICER'S RANK DOES NOT OPERATE TO CHANGE HIS STATUS IN THAT RESPECT OR HIS RIGHT TO THE PAY OF THE RANK ACTUALLY HELD. B-65956, MAY 26, 1947. HOWEVER, IN VIEW OF THE FOREGOING REGULATIONS PROVIDING THAT A RESERVE OFFICER WHO MAKES APPLICATION FOR EXTENDED ACTIVE DUTY MUST AGREE TO ACCEPT SUCH DUTY IN A GRADE NOT HIGHER THAN THE GRADE IN WHICH HE SERVED IN THE ARMY OF THE UNITED STATES, AIR FORCE OF THE UNITED STATES, OR OTHER BRANCH OF THE ARMED SERVICES IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY, AND THAT SUCH AN OFFICER WILL BE ORDERED TO ACTIVE DUTY IN AN AIR FORCE UNITED STATES GRADE AND STATUS RATHER THAN IN GRADE OR STATUS OF THE UNITED STATES AIR FORCE RESERVE, IT APPEARS THAT THE OFFICER WAS ORDERED TO ACTIVE DUTY TO SERVE UNDER AN APPOINTMENT IN THE AIR FORCE OF THE UNITED STATES EVEN THOUGH THE ORDERS OF AUGUST 12, 1950, RECITED THAT "EACH OF THE FOLLOWING RESERVE OFFICERS IS ORDERED TO EXTENDED ACTIVE DUTY IN HIS RESERVE GRADE." IN THAT CONNECTION, IT WILL BE NOTED THAT PARAGRAPH 38 OF THE AMENDATORY ORDERS OF APRIL 6, 1951, REFERS TO THE SAID ORDERS OF AUGUST 12, 1950, AS "PERTAINING TO OFFICERS APTD IN THE AFUS AND ORDERED TO EAD." AND SINCE SIMPSON'S APPLICATION SHOWS THAT HE HELD THE GRADE OF CAPTAIN IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY - WHICH GRADE HE STATED WAS ACCEPTABLE IN CONNECTION WITH HIS RECALL TO ACTIVE DUTY - AND AS IT IS REPORTED THAT HE EXECUTED THE OATH OF OFFICE AS CAPTAIN IN THE AIR FORCE OF THE UNITED STATES, UPON RECALL TO ACTIVE DUTY, THERE APPEARS TO HAVE BEEN NO ERROR IN REFERRING TO HIM AS A CAPTAIN IN THE ORDERS OF AUGUST 12, 1950, THAT APPARENTLY BEING THE GRADE IN WHICH IT WAS INTENDED THAT HE SERVE ON ACTIVE DUTY UNDER AN APPOINTMENT IN THE AIR FORCE OF THE UNITED STATES.

IT IS NOT CLEAR JUST WHAT WAS MEANT BY THE PROVISION IN THE ABOVE QUOTED PARAGRAPH 38 THAT THE ORDERS OF AUGUST 12, 1950, ARE FURTHER AMENDED TO INCLUDE THE SENTENCE "INCREASED PAY AND ALLOWANCES WILL ACCRUE ONLY FROM THE DATE OF THIS ORDER." IF IT WAS INTENDED THAT THE INCREASED PAY AND ALLOWANCES OF A MAJOR WOULD ACCRUE FROM AUGUST 12, 1950 (THE DATE OF THE ORIGINAL ORDERS), OR AUGUST 22, 1950 (THE EFFECTIVE DATE OF THE ACTIVE DUTY HERE INVOLVED), BY VIRTUE OF THE AMENDMENT OF APRIL 6, 1951, THEN SUCH PROVISION IS WITHOUT EFFECT TO ACCOMPLISH ITS PURPOSE IN VIEW OF THE WELL-ESTABLISHED RULE THAT, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, A CHANGE IN GRADE MAY NOT BE MADE RETROACTIVELY EFFECTIVE INSOFAR AS PAY AND ALLOWANCES ARE CONCERNED. RATHER, IN VIEW OF SUCH RULE, IT WOULD SEEM THAT THE SAID PROVISION WAS PLACED IN THE AMENDMENT FOR THE PURPOSE OF SPECIFICALLY PROVIDING THAT THE INCREASED PAY AND ALLOWANCES OF A MAJOR WOULD BE PAID ONLY FROM THE DATE OF THE AMENDING ORDER. ACCORDINGLY, SINCE THE RECORD BEFORE THIS OFFICE DOES NOT ESTABLISH THAT THERE WAS ANY ADMINISTRATIVE ERROR IN CALLING THE OFFICER TO ACTIVE DUTY TO SERVE AS CAPTAIN IN THE AIR FORCE OF THE UNITED STATES, AND SINCE THE AMENDING ORDERS OF APRIL 6, 1951, HAVE NO RETROACTIVE EFFECT, INSOFAR AS PAY AND ALLOWANCES ARE CONCERNED, THE PROPOSED PAYMENT IS NOT AUTHORIZED AND THE PAPERS RECEIVED WITH YOUR LETTER WILL BE RETAINED IN THIS OFFICE. CF. 26 COMP. GEN. 245.