B-123559, OCT. 17, 1956

B-123559: Oct 17, 1956

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EBLEN: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12. IS AS FOLLOWS: "1. IS CONSIDERED TO HAVE HELD THE GRADE OF CAPTAIN. IS CHANGED TO 18 NOVEMBER 1948. ALL OFFICIAL RECORDS PERTAINING TO HIM ARE CORRECTED AND MODIFIED ACCORDINGLY. "2. OR OTHER PECUNIARY BENEFITS WILL BE PAID BY THE DEPARTMENT OF THE ARMY AS A RESULT OF THE FOREGOING CORRECTION OF MILITARY RECORD. "3. IS. AS FOLLOWS: "DP ANNOUNCEMENT IS MADE OF THE TEMPORARY PROMOTION AND COMMISSIONING OF THE FOLLOWING-NAMED OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SUBSEC 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947 IN GRADE AND WITH DATE OF RANK AS INDICATED: CAPT TO MAJ GEORGE C. THE FIRST CLAIM WAS ALLOWED.

B-123559, OCT. 17, 1956

TO MAJOR GEORGE C. EBLEN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12, 1956, WITH ENCLOSURES, REQUESTING REVIEW OF THAT PORTION OF SETTLEMENT DATED JULY 14, 1955, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A CAPTAIN AND THE PAY OF A MAJOR FOR THE PERIOD JULY 29, 1953, TO MAY 23, 1954.

LETTER OF THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY DATED MAY 20, 1954, ADDRESSED TO YOU, IS AS FOLLOWS:

"1. UNDER THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED (PUBLIC LAW 220, 82ND CONGRESS), GEORGE C. EBLEN, 061195, JAGC, IS CONSIDERED TO HAVE HELD THE GRADE OF CAPTAIN, AUS, AT THE TIME OF HIS INTEGRATION INTO THE REGULAR ARMY ON 6 FEBRUARY 1950, AND HIS DATE OF RANK AS CAPTAIN, AUS, IS CHANGED TO 18 NOVEMBER 1948. ALL OFFICIAL RECORDS PERTAINING TO HIM ARE CORRECTED AND MODIFIED ACCORDINGLY.

"2. NO MONEY AS A RESULT OF PAST LOSS OF PAY, ALLOWANCES, COMPENSATIONS, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS WILL BE PAID BY THE DEPARTMENT OF THE ARMY AS A RESULT OF THE FOREGOING CORRECTION OF MILITARY RECORD.

"3. IN VIEW OF ABOVE, HIS NAME HAS BEEN ADDED TO PARAGRAPH 4, SECTION II, GENERAL ORDERS NO. 25, DATED 6 MARCH 1953, AS BEING ELIGIBLE FOR CONSIDERATION FOR TEMPORARY PROMOTION TO THE GRADE OF MAJOR.'

PARAGRAPH 13, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 101, MAY 24, 1954, IS, IN PERTINENT PART, AS FOLLOWS:

"DP ANNOUNCEMENT IS MADE OF THE TEMPORARY PROMOTION AND COMMISSIONING OF THE FOLLOWING-NAMED OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SUBSEC 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947 IN GRADE AND WITH DATE OF RANK AS INDICATED:

CAPT TO MAJ

GEORGE C. EBLEN 061195 JAGC (RA) DATE OF RANK 29 JUL 1953.'

SINCE THE LETTER OF THE ADJUTANT GENERAL'S OFFICE STATED THAT NO MONEYS WOULD BE PAID BY THE DEPARTMENT OF THE ARMY AS A RESULT OF THE CORRECTION OF YOUR RECORDS, YOU PRESENTED TWO CLAIMS TO US, ONE FOR THE DIFFERENCE BETWEEN THE PAY OF A FIRST LIEUTENANT AND THE PAY OF A CAPTAIN FROM MARCH 22, 1950, DATE OF EXECUTION OF OATH OF OFFICE AS FIRST LIEUTENANT, REGULAR ARMY, TO MAY 13, 1951, THE DAY PRECEDING THE DATE OF ANNOUNCEMENT OF YOUR PROMOTION TO CAPTAIN, REGULAR ARMY, AND THE OTHER FOR THE DIFFERENCE BETWEEN THE PAY OF A CAPTAIN AND THE PAY OF A MAJOR FROM JULY 29, 1953, DATE OF RANK AS TEMPORARY MAJOR, TO MAY 23, 1954, THE DAY PRECEDING THE DATE OF ANNOUNCEMENT OF YOUR TEMPORARY PROMOTION TO MAJOR, REGULAR ARMY. THE FIRST CLAIM WAS ALLOWED, THE SECOND DISALLOWED, BY THE SETTLEMENT OF JULY 14, 1955.

THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, AMENDED SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 TO READ, IN PERTINENT PART, AS FOLLOWS:

"/B) THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED, OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION: PROVIDED, THAT IN THE CASE OF DECEASED PERSONS WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, PAYMENTS OTHERWISE DUE HEREUNDER SHALL BE MADE TO THE DECEDENT'S WIDOW, WIDOWER, LEGAL HEIRS, OR BENEFICIARIES, IN THE ORDER OF PRECEDENCE OR SUCCESSION AS MAY BE PRESCRIBED BY THE APPLICABLE PROVISIONS OF LAW RELATING TO THE KIND OF PAYMENT INVOLVED AND WHEN NOT OTHERWISE SO PROVIDED, IN THE ORDER OF PRECEDENCE AS SET FORTH IN THE ACT OF FEBRUARY 25, 1946 (60 STAT. 30), OR AS MAY BE PRESCRIBED BY THE APPLICABLE PROVISIONS OF LAW RELATING TO THE KIND OF PAYMENT INVOLVED.

"/1) THIS SUBSECTION SHALL NOT BE DEEMED TO AUTHORIZE THE PAYMENT OF ANY CLAIM HERETOFORE COMPENSATED BY CONGRESS THROUGH ENACTMENT OF A PRIVATE LAW.

"/C) THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT OF ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.

IN VIEW OF THE PROVISIONS OF SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, YOUR ACCEPTANCE OF THE SETTLEMENT OF JULY 14, 1955, IS CONSIDERED TO HAVE OPERATED AS A RELEASE BY YOU OF "ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF" THE CORRECTION OF YOUR RECORDS. HOWEVER, YOUR PROMOTION TO THE TEMPORARY GRADE OF MAJOR WAS NOT EFFECTED BY THE CORRECTION OF YOUR RECORDS BUT WAS ACCOMPLISHED ON MAY 24, 1954, SUBSEQUENT TO SUCH CORRECTION.

THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, IN EFFECT ON MAY 24, 1954, PROVIDED:

"THAT EVERY OFFICER OF THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, PROMOTED TO A HIGHER GRADE AT ANY TIME AFTER DECEMBER 7, 1941, SHALL BE DEEMED FOR ALL PURPOSES TO HAVE ACCEPTED HIS PROMOTION TO HIGHER GRADE UPON THE DATE OF THE ORDER ANNOUNCING IT UNLESS HE SHALL EXPRESSLY DECLINE SUCH PROMOTION, AND SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM SUCH DATE UNLESS HE IS ENTITLED UNDER SOME OTHER PROVISION OF LAW TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM AN EARLIER DATE. NO SUCH OFFICER WHO SHALL HAVE SUBSCRIBED TO THE OATH OF OFFICE REQUIRED BY SECTION 1757, REVISED STATUTES, SHALL BE REQUIRED TO RENEW SUCH OATH OR TO TAKE A NEW OATH UPON HIS PROMOTION TO A HIGHER GRADE, IF HIS SERVICE AFTER THE TAKING OF SUCH AN OATH SHALL HAVE BEEN CONTINUOUS.'

UNDER THAT ACT--- IN THE ABSENCE OF SOME OTHER PROVISION OF LAW AUTHORIZING SUCH PAY FROM AN EARLIER DATE--- THE PAY OF THE GRADE TO WHICH AN OFFICER IS PROMOTED BEGINS ON THE DATE OF THE ANNOUNCEMENT OF SUCH PROMOTION, REGARDLESS OF THE FACT THAT HE MAY HAVE BEEN ELIGIBLE FOR THE PROMOTION AT AN EARLIER DATE. 26 COMP. GEN. 475; 29 COMP. GEN. 188, 211.

APPARENTLY, YOU HAVE BEEN PAID AS A MAJOR FROM MAY 24, 1954, THE DATE OF THE ORDER EFFECTING YOUR TEMPORARY PROMOTION TO THAT GRADE. WE KNOW OF NO PROVISION OF LAW AUTHORIZING SUCH PAY FROM AN EARLIER DATE, WHETHER ON THE BASIS OF DATE OF RANK OR OTHERWISE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A CAPTAIN AND THE PAY OF A MAJOR FOR THE PERIOD JULY 29, 1953, TO MAY 23, 1954, IS SUSTAINED.