B-116767, MAY 11, 1954

B-116767: May 11, 1954

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IN CASE IT IS HELD THAT SUCH PAYMENT IS NOT AUTHORIZED. DECISION IS REQUESTED AS TO WHETHER. THE ENLISTED MAN IS TO BE REGARDED AS HAVING BEEN PROMOTED TO GRADE E-7 ON FEBRUARY 27. WITH CERTAIN MISCONDUCT AND INFORMED HIM THAT UNLESS TRIAL BY COURT-MARTIAL WAS REQUESTED HE PROPOSED TO IMPOSE PUNISHMENT UPON HIM PURSUANT TO ARTICLE 15 OF THE MANUAL FOR COURTS-MARTIAL. APO 11 US ARMY IS HEREBY REDUCED TO THE NEXT INFERIOR GRADE AS INDICATED: "M/SGT CALVIN B CASTLEN RA 34446956 REDUCED TO SERGEANT FIRST CLASS (E- 6)" BY SPECIAL ORDERS NO. 137. CASTLEN WAS RELIEVED OF ASSIGNMENT WITH THE UNITED STATES ARMY ELEMENT. THE ENLISTED MAN APPEARS TO HAVE SERVED IN THE GRADE OF SERGEANT. WAS NULL AND VOID FROM ITS INCEPTION AND THAT HE IS AND HAS BEEN SERVING IN THE GRADE OF MASTER SERGEANT SINCE THE DATE OF HIS PROMOTION TO THAT GRADE.

B-116767, MAY 11, 1954

PRECIS-UNAVAILABLE

CAPTAIN GEORGE L. PRESS, FC, FINANCE OFFICER:

BY FIRST INDORSEMENT DATED AUGUST 23, 1953, THE OFFICE CHIEF OF FINANCE, REFERRED TO THIS OFFICE YOUR LETTER OF JULY 25, 1953, TRANSMITTING A MILITARY PAY ORDER AND SUPPORTING PAPERS, IN THE CASE OF MASTER SERGEANT CALVIN B. CASTLEN, REGULAR ARMY, RA 34 446 956, AND REQUESTING DECISION AS TO PROPRIETY OF PAYMENT THEREON OF THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THOSE AUTHORIZED FOR GRADE E-7 AND THOSE AUTHORIZED FOR GRADE E-6 FOR THE PERIOD FROM SEPTEMBER 13, 1951, TO FEBRUARY 27, 1953. IN CASE IT IS HELD THAT SUCH PAYMENT IS NOT AUTHORIZED, DECISION IS REQUESTED AS TO WHETHER, IN THE CIRCUMSTANCES APPEARING, THE ENLISTED MAN IS TO BE REGARDED AS HAVING BEEN PROMOTED TO GRADE E-7 ON FEBRUARY 27, 1953.

IT APPEARS THAT ON SEPTEMBER 13, 1951, THE DEPUTY COMMANDING OFFICER AND COMMANDER OF UNITED STATES TROOPS, HEADQUARTERS COMMAND, UNITED STATES ARMY ELEMENT, ALLIED LAND FORCES CENTRAL EUROPE, 8478TH AAU, DETACHMENT NO. 1, CHARGED SERGEANT CASTLEN, THEN ASSIGNED TO SUCH COMMAND, WITH CERTAIN MISCONDUCT AND INFORMED HIM THAT UNLESS TRIAL BY COURT-MARTIAL WAS REQUESTED HE PROPOSED TO IMPOSE PUNISHMENT UPON HIM PURSUANT TO ARTICLE 15 OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951. PARAGRAPH 2, SPECIAL ORDERS NO. 12, HEADQUARTERS, UNITED STATES ARMY ELEMENT, ALLIED LAND FORCES CENTRAL EUROPE, 8478TH AAU, DETACHMENT NO. 1, DATED SEPTEMBER 13, 1951, ISSUED "BY COMMAND OF MAJOR GENERAL MULLER," PROVIDES:

"AS A RESULT OF ACTION ACCOMPLISHED UNDER THE PROVISIONS OF ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, MCM 1951, BELOW NAMED ENLISTED MAN, DET #1, 8478TH AAU, APO 11 US ARMY IS HEREBY REDUCED TO THE NEXT INFERIOR GRADE AS INDICATED:

"M/SGT CALVIN B CASTLEN RA 34446956 REDUCED TO SERGEANT FIRST CLASS (E- 6)"

BY SPECIAL ORDERS NO. 137, HEADQUARTERS COMMAND SHAPE, 8478TH AAU, DATED SEPTEMBER 19, 1951, "SFC" CALVIN B. CASTLEN WAS RELIEVED OF ASSIGNMENT WITH THE UNITED STATES ARMY ELEMENT, ALLIED LAND FORCES CENTRAL EUROPE, 8478TH AAU, DETACHMENT NO. 1, AND TRANSFERRED IN GRADE TO 7888 SPECIAL TROOPS, EUCOM, APO 403. THE ENLISTED MAN APPEARS TO HAVE SERVED IN THE GRADE OF SERGEANT, FIRST CLASS, FROM SEPTEMBER 13, 1951, TO FEBRUARY 27, 1953, WHEN THE OFFICE OF THE ADJUTANT GENERAL, BY ORDER OF THE SECRETARY OF THE ARMY, PUBLISHED A DETERMINATION THAT HIS REDUCTION FROM THE GRADE OF MASTER SERGEANT TO SERGEANT, FIRST CLASS, ON SEPTEMBER 13, 1951, WAS NULL AND VOID FROM ITS INCEPTION AND THAT HE IS AND HAS BEEN SERVING IN THE GRADE OF MASTER SERGEANT SINCE THE DATE OF HIS PROMOTION TO THAT GRADE. THE RECORD INDICATES THAT SUCH DETERMINATION WAS PREDICATED UPON AN OPINION BY THE JUDGE ADVOCATE GENERAL OF THE ARMY TO THE EFFECT THAT, UNDER PERTINENT REGULATIONS, THE DEPUTY COMMANDING OFFICER AND COMMANDER OF UNITED STATES TROOPS, HEADQUARTERS COMMAND, UNITED STATES ARMY ELEMENT, ALLIED LAND FORCES CENTRAL EUROPE, 8478TH AAU, DETACHMENT NO. 1, DID NOT HAVE AUTHORITY TO APPOINT ENLISTED MEN TO THE 7TH GRADE AND, HENCE, WAS NOT AUTHORIZED TO REDUCE FROM SUCH GRADE, AND THAT THE ABOVE-QUOTED SPECIAL ORDERS NO. 12 OF SEPTEMBER 13, 1951, SHOULD BE VIEWED MERELY AS AN ATTEMPTED CONFIRMATION OF SUCH OFFICER'S UNAUTHORIZED ACT AND AS LEGALLY INEFFECTIVE TO ACCOMPLISH A REDUCTION IN GRADE.

PARAGRAPH 3, ARMY SPECIAL REGULATIONS 615-25-55, CHANGES NO. 1, DATED JULY 23, 1951, PROVIDES THAT EFFECTIVE MAY 31, 1951, THE UNIFORM CODE OF MILITARY JUSTICE, ARTICLE 15, AND CHAPTER XXVI, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, WILL GOVERN THE REDUCTION OF ENLISTED PERSONNEL FOR MISCONDUCT AND THAT FOR AN INDIVIDUAL SO REDUCED, THE DATE OF RANK IN THE GRADE TO WHICH REDUCED WILL BE THE DATE OF THE ORDER EFFECTING THE REDUCTION.

ARTICLE 15 OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 112, PROVIDES IN MATERIAL PART AS FOLLOWS:

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ANY COMMANDING OFFICER MAY, IN ADDITION TO OR IN LIEU OF ADMONITION OR REPRIMAND, IMPOSE ONE OF THE FOLLOWING DISCIPLINARY PUNISHMENTS FOR MINOR OFFENSES WITHOUT THE INTERVENTION OF A COURT-MARTIAL -

"(2) UPON *** MILITARY PERSONNEL (OTHER THAN OFFICERS AND WARRANT OFFICERS) OF HIS COMMAND:

"(D) REDUCTION TO NEXT INFERIOR GRADE IF THE GRADE FROM WHICH DEMOTED WAS ESTABLISHED BY THE COMMAND OR AN EQUIVALENT OR LOWER COMMAND ***

"(B) THE SECRETARY OF A DEPARTMENT MAY, BY REGULATION, PLACE LIMITATIONS ON THE POWERS GRANTED BY THIS ARTICLE WITH RESPECT TO THE KIND AND AMOUNT OF PUNISHMENT AUTHORIZED, THE CATEGORIES OF COMMANDING OFFICERS AUTHORIZED TO EXERCISE SUCH POWERS, AND THE APPLICABILITY OF THIS ARTICLE TO AN ACCUSED WHO DEMANDS TRIAL BY COURT MARTIAL."

CHAPTER XXVI, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDES (PARAGRAPH 128) THAT ANY COMMANDING OFFICER MAY IMPOSE DISCIPLINARY PUNISHMENT UNDER ARTICLE 15 ON PERSONNEL OF HIS COMMAND WITHOUT THE INTERVENTION OF A COURT-MARTIAL. SUCH AUTHORITY CANNOT BE DELEGATED BUT COMMUNICATIONS WITH RESPECT THERETO MAY BE SIGNED OR TRANSMITTED BY HIM PERSONALLY OR AS PROVIDED FOR OFFICIAL COMMUNICATIONS IN GENERAL. IN CASE THE OFFICER TO WHOM INFORMATION CONCERNING A BREACH OF DISCIPLINE IS FORWARDED LACKS JURISDICTION TO IMPOSE THE MOST APPROPRIATE PUNISHMENT, SUCH CHAPTER STATES (PARAGRAPH 129) THAT HE SHOULD FORWARD THE MATTER TO A SUPERIOR COMPETENT AUTHORITY. IT IS FURTHER PROVIDED (PARAGRAPH 131 B(3)(C)) THAT THE PUNISHMENT OF REDUCTION TO THE NEXT INFERIOR GRADE MAY BE IMPOSED IF THE GRADE FROM WHICH DEMOTED IS UNDER PERTINENT DEPARTMENTAL REGULATIONS, WITHIN THE PROMOTION AUTHORITY OF THE COMMANDING OFFICER IMPOSING THE PUNISHMENT OR WITHIN THE PROMOTION AUTHORITY OF ANY COMMANDING OFFICER SUBORDINATE TO THE ONE WHO IMPOSES THE PUNISHMENT.

PARAGRAPH 9B, ARMY SPECIAL REGULATIONS 615-25-40, CHANGES NO. 2, DATED AUGUST 28, 1951, PROVIDES THAT COMMANDERS OF REGIMENTS, SEPARATE OR DETACHED BATTALIONS, OR ANY SIMILAR OR SEPARATE ORGANIZATION FOR WHICH THE GRADE OF LIEUTENANT COLONEL OR HIGHER IS AUTHORIZED AND A FIELD GRADE OFFICER IS ACTUALLY IN COMMAND MAY PROMOTE ENLISTED MEN TO GRADE E-7. THE COMMANDING OFFICER OF THE HEADQUARTERS COMMAND HERE CONCERNED, WHICH APPARENTLY CONSTITUTED AN ORGANIZATION WITHIN THE CONTEMPLATION OF SUCH REGULATIONS, WAS A LIEUTENANT COLONEL.

THUS IT APPEARS THAT THE COMMANDING OFFICER OF SUCH HEADQUARTERS COMMAND WAS AUTHORIZED TO EFFECT REDUCTIONS FROM GRADE E-7 TO GRADE E-6 ON SEPTEMBER 13, 1951. HOWEVER, SERGEANT CASTLEN'S REDUCTION WAS NOT EFFECTED BY SUCH COMMANDING OFFICER BUT BY THAT COMMANDING OFFICER'S SUPERIOR EVEN THOUGH ALL PROCEEDINGS LEADING UP TO THE REDUCTION APPEAR TO HAVE BEEN CONDUCTED BY THE DEPUTY COMMANDING OFFICER OF THE HEADQUARTERS COMMAND. THE ACTIONS OF SUCH DEPUTY IN THE MATTER MAY NOT BE REGARDED AS INVALIDATING THE REDUCTION, IF MADE BY COMPETENT AUTHORITY, BECAUSE HE MAY HAVE LACKED AUTHORITY TO FINALLY EFFECTUATE THE REDUCTION OR UNDER THE REGULATIONS COULD HAVE FORWARDED THE MATTER TO HIGHER AUTHORITY WITHOUT OTHER ACTION. UNDER THE PLAIN LANGUAGE OF THE REGULATIONS, IT SEEMS CLEAR THAT MAJOR GENERAL WALTER C. MULLER, AS THE SUPERIOR OF THE COMMANDING OFFICER OF THE HEADQUARTERS COMMAND, DID HAVE AUTHORITY TO REDUCE ENLISTED MEN OF SUCH COMMAND SERVING IN GRADE E-7 AND THE REDUCTION ORDER ISSUED BY HIS COMMAND IS CLEAR AND UNAMBIGUOUS AND DOES NOT PURPORT TO BE A CONFIRMING ACTION OF ANY KIND. ON THE CONTRARY SUCH ORDER STATES EXPRESSLY THAT THE ENLISTED MAN "IS HEREBY REDUCED." SUCH ORDER, BEING AN ORDER OF COMPETENT AUTHORITY, IS VIEWED AS HAVING ACTUALLY ACCOMPLISHED THE ENLISTED MAN'S REDUCTION TO THE GRADE OF SERGEANT, FIRST CLASS, EFFECTIVE ON SEPTEMBER 13, 1951, THE DATE OF THE ORDER, AND THERE IS NO SHOWING THAT AT ANY TIME AFTER SEPTEMBER 13, 1951, AND PRIOR TO FEBRUARY 27, 1953, BE PERFORMED THE DUTIES OF MASTER SERGEANT OR WAS CONSIDERED ADMINISTRATIVELY AS AN ENLISTED MAN OF THAT GRADE. IT UNIFORMLY HAS BEEN HELD THAT AN ENLISTED MAN IS ENTITLED TO THE PAY AND ALLOWANCES ONLY OF THE GRADE HELD BY HIM. 15 COMP. GEN. 935.

ACCORDINGLY, PAYMENT ON THE MILITARY PAY ORDER WHICH IS RETAINED IN THIS OFFICE IS NOT AUTHORIZED.

AS TO YOUR FURTHER QUESTION, IT HAS BEEN HELD THAT ACTION TAKEN ADMINISTRATIVELY BY COMPETENT AUTHORITY TO RESTORE TO THE HIGHER GRADE AN ENLISTED MAN WHO HAD BEEN REDUCED ADMINISTRATIVELY IS EFFECTIVE TO RESTORE SUCH INDIVIDUAL TO THE HIGHER GRADE AS OF THE DATE ON WHICH THE ACTION IS TAKEN. SEE B-70614, JULY 30, 1948. THE ANNOUNCEMENT BY THE OFFICE OF THE ADJUTANT GENERAL OF THE DETERMINATION IN THIS CASE OBVIOUSLY WAS INTENDED TO EFFECT THE RESTORATION OF SERGEANT CASTLEN TO HIS HIGHER GRADE AND UNQUESTIONABLY THE SECRETARY OF THE ARMY HAS AUTHORITY TO ADVANCE AN ENLISTED MAN IN THE ARMY TO A HIGHER ENLISTED GRADE. ACCORDINGLY, IT MAY BE CONSIDERED THAT SERGEANT CASTLEN WAS RESTORED TO GRADE E-7 FOR PAY PURPOSES, EFFECTIVE FEBRUARY 27, 1953.