B-119193, APRIL 16, 1954, 33 COMP. GEN. 475

B-119193: Apr 16, 1954

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IS ENTITLED TO RETAIN THE PAY AND ALLOWANCE RECEIVED IN GOOD FAITH FOR SERVICE IN THAT CAPACITY. 1954: REFERENCE IS MADE TO A LETTER DATED MARCH 8. IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED AS A FIRST LIEUTENANT UNDER THE FACTS AND CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NUMBER 92 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE. IS AS FOLLOWS: A. THERE IS NO RECORD OF OFFICER'S PROMOTION TO FIRST LIEUTENANT IN THE ORC PRIOR TO OR UPON RELIEF FROM ACTIVE DUTY. INCLUDED IN THE COMMITTEE ACTION WAS AN ADMINISTRATIVE DETERMINATION BY THE ADJUTANT GENERAL OF THE ARMY UNDER DATE OF MAY 20. IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT HIS STATUS DURING THAT PERIOD WAS A DE FACTO FIRST LIEUTENANT.

B-119193, APRIL 16, 1954, 33 COMP. GEN. 475

PAY - OFFICERS IN DE FACTO STATUS - PERFORMANCE OF DUTY UNDER ERRONEOUS APPOINTMENT - RETENTION OF PAY AND ALLOWANCES SECOND LIEUTENANT IN A RESERVE COMPONENT OF THE ARMY WHO ERRONEOUSLY SERVED ON ACTIVE DUTY IN HIGHER GRADE OF FIRST LIEUTENANT UNDER COLOR OF AUTHORITY AND WITHOUT KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, OF THE FACT THAT HE HAD BEEN ORDERED TO SUCH ACTIVE DUTY IN A GRADE HIGHER THAN ACTUALLY HELD BY HIM AS A RESERVE COMMISSIONED OFFICER IN THE ARMY, IS ENTITLED TO RETAIN THE PAY AND ALLOWANCE RECEIVED IN GOOD FAITH FOR SERVICE IN THAT CAPACITY.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 16, 1954:

REFERENCE IS MADE TO A LETTER DATED MARCH 8, 1954, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION AS TO WHETHER AN OFFICER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO, IN GOOD FAITH AND WITH KNOWLEDGE AND ACQUIESCENCE OF ARMY AUTHORITIES, ERRONEOUSLY SERVED ON ACTIVE DUTY IN THE HIGHER GRADE OF FIRST LIEUTENANT, IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED AS A FIRST LIEUTENANT UNDER THE FACTS AND CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NUMBER 92 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

A RESUME OF THE FACTS IN THE CASE OF DERYLE M. MEHRTEN, AS SET FORTH IN THE COMMITTEE ACTION, IS AS FOLLOWS:

A. APPOINTED SECOND LIEUTENANT, INFANTRY RESERVE, 10 FEBRUARY 1948 UPON GRADUATION FROM OCS AND ENTERED ON ACTIVE DUTY IN THAT GRADE, SAME DATE.

B. TEMPORARILY PROMOTED TO FIRST LIEUTENANT, AUS, 26 AUGUST 1949 BY HEADQUARTERS EIGHTH ARMY, TO RANK FROM 9 AUGUST 1949.

C. RELIEVED FROM ACTIVE DUTY 21 JUNE 1950, AT HIS OWN REQUEST. ITEMS 3 AND 4 OF DD FORM 214 SHOW GRADE AND DATE OF APPOINTMENT "1ST LT, 9 AUG 49" AND COMPONENT AND BRANCH " ORC INF.' THERE IS NO RECORD OF OFFICER'S PROMOTION TO FIRST LIEUTENANT IN THE ORC PRIOR TO OR UPON RELIEF FROM ACTIVE DUTY.

D. APPLICATION FOR EXTENDED ACTIVE DUTY ( DA AGO FORM 160) SUBMITTED UNDER DATE OF 25 JULY 1950. OFFICER INDICATED GRADE HELD PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY AS "1ST LT" AND LOWEST GRADE ACCEPTABLE AS "1ST LT.' ITEM 1 OF THE APPLICATION (PRESENT GRADE) CONTAINS PENCIL ENTRY "1ST LT.'

E. ORDERED TO ACTIVE DUTY EFFECTIVE 23 SEPTEMBER 1950 AS FIRST LIEUTENANT, INFANTRY, USAR BY LETTER ORDER 45, HEADQUARTERS SIXTH ARMY.

F. TEMPORARILY PROMOTED TO FIRST LIEUTENANT, AUS BY HEADQUARTERS SEVENTH ARMORED DIVISION, 15 OCTOBER 1952 WITH RANK FROM THAT DATE.

G. TENDERED INDEFINITE TERM APPOINTMENT AS A RESERVE COMMISSIONED OFFICER OF THE ARMY IN GRADE OF SECOND LIEUTENANT, EFFECTIVE 27 OCTOBER 1952, BY HEADQUARTERS SIXTH ARMY, AND ACCEPTED BY OFFICER 31 OCTOBER 1952.

INCLUDED IN THE COMMITTEE ACTION WAS AN ADMINISTRATIVE DETERMINATION BY THE ADJUTANT GENERAL OF THE ARMY UNDER DATE OF MAY 20, 1953, AS TO THE OFFICER'S STATUS, IN PART AS FOLLOWS:

2. AFTER CAREFUL REVIEW OF LIEUTENANT MEHRTEN'S CASE, IT HAS BEEN SATISFACTORILY ESTABLISHED THAT DURING THE PERIOD FROM 23 SEPTEMBER 1950 TO AND INCLUDING 14 OCTOBER 1952, HE PERFORMED DUTY IN THE GRADE OF FIRST LIEUTENANT IN GOOD FAITH. THEREFORE, IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT HIS STATUS DURING THAT PERIOD WAS A DE FACTO FIRST LIEUTENANT.

THE QUESTION INVOLVED IN THIS CASE IS WHETHER, UNDER THE FACTS AND CIRCUMSTANCES REPORTED, LIEUTENANT MEHRTEN MAY RETAIN THE PAY AND ALLOWANCES RECEIVED FOR DUTY PERFORMED IN THE GRADE OF FIRST LIEUTENANT FOR THE PERIOD SEPTEMBER 23, 1950, TO OCTOBER 14, 1952, OR WHETHER HE WILL BE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THE GRADE OF SECOND LIEUTENANT AND FIRST LIEUTENANT FOR SUCH PERIOD.

IT SEEMS APPARENT THAT WHEN THE OFFICER SUBMITTED APPLICATION ON JULY 25, 1950, FOR "EXTENDED ACTIVE DUTY" HE DID SO UNDER THE MISTAKEN BELIEF THAT HE LEGALLY HELD THE GRADE OF FIRST LIEUTENANT, HAVING BEEN TEMPORARILY PROMOTED TO SUCH GRADE ON AUGUST 26, 1949, IN THE ARMY OF THE UNITED STATES, AND THAT FUTURE SERVICE BY HIM WOULD BE IN SUCH GRADE. IT APPEARS FURTHER THAT DUE TO OVERSIGHT OR CONFUSION OF RECORDS THE HEADQUARTERS SIXTH ARMY ORDERED THE OFFICER TO ACTIVE DUTY EFFECTIVE SEPTEMBER 23, 1950, AS FIRST LIEUTENANT, INFANTRY, UNITED STATES ARMY RESERVE. THE ADJUTANT GENERAL OF THE ARMY HAS FOUND THAT THE OFFICER PERFORMED DUTY IN THE GRADE OF FIRST LIEUTENANT IN GOOD FAITH AND THERE IS NOTHING IN THE RECORD TO JUSTIFY A CONTRARY VIEW.

SINCE IT APPEARS THAT DURING THE PERIOD FROM SEPTEMBER 23, 1950, TO OCTOBER 14, 1952, LIEUTENANT MEHRTEN SERVED AS A FIRST LIEUTENANT UNDER COLOR OF AUTHORITY AND WITHOUT KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, OF THE FACT THAT HE HAD BEEN ORDERED TO ACTIVE DUTY IN A GRADE HIGHER THAN THAT ACTUALLY HELD BY HIM AS A RESERVE COMMISSIONED OFFICER OF THE ARMY, HE IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED BY HIM IN GOOD FAITH FOR SERVICE IN THAT CAPACITY. SEE UNITED STATES V. ROYER, 268 U.S. 394. CF. 31 COMP. GEN. 335.