B-124682, JAN. 4, 1956

B-124682: Jan 4, 1956

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 9. ALSO YOU ASK WHETHER RECOVERY IS REQUIRED OF AMOUNTS PREVIOUSLY PAID TO LIEUTENANT COLONELS WATERMAN AND SWISHER AS RESERVE INACTIVE DUTY TRAINING PAY FOR ASSEMBLIES ATTENDED WHILE ASSIGNED TO THE UNIT AND OF AMOUNTS PAID TO LIEUTENANT COLONEL ROAKE AS RESERVE INACTIVE DUTY TRAINING PAY AND AS ADMINISTRATIVE FUNCTION PAY FROM THE DATE OF HIS PROMOTION TO THE GRADE OF LIEUTENANT COLONEL ON OCTOBER 1. THE DATE FOR WHICH HE WAS LAST PAID WHILE ASSIGNED TO THE UNIT. IT APPEARS THAT LIEUTENANT COLONEL WATERMAN WAS TRANSFERRED TO THE UNIT INVOLVED IN THE GRADE OF LIEUTENANT COLONEL ON DECEMBER 18. THAT LIEUTENANT COLONEL SWISHER WAS ASSIGNED TO THE UNIT IN THE GRADE OF LIEUTENANT COLONEL ON FEBRUARY 11.

B-124682, JAN. 4, 1956

TO LIEUTENANT COLONEL C. F. MAY, FC, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1955, SUBMITTING FOR ADVANCE DECISION A PAYROLL VOUCHER COVERING THE CLAIMS OF LIEUTENANT COLONELS ROBERT F. ROAKE, O-297966, KEATH M. SWISHER, O-258481, AND ERNEST A. WATERMAN, O-336896, FOR RESERVE INACTIVE DUTY TRAINING PAY FOR TRAINING ASSEMBLIES ATTENDED WITH THE 6257TH ORASU ARMED FORCES EXAMINING AND INDUCTION STATION, VANCOUVER BARRACKS, VANCOUVER, WASHINGTON. ALSO YOU ASK WHETHER RECOVERY IS REQUIRED OF AMOUNTS PREVIOUSLY PAID TO LIEUTENANT COLONELS WATERMAN AND SWISHER AS RESERVE INACTIVE DUTY TRAINING PAY FOR ASSEMBLIES ATTENDED WHILE ASSIGNED TO THE UNIT AND OF AMOUNTS PAID TO LIEUTENANT COLONEL ROAKE AS RESERVE INACTIVE DUTY TRAINING PAY AND AS ADMINISTRATIVE FUNCTION PAY FROM THE DATE OF HIS PROMOTION TO THE GRADE OF LIEUTENANT COLONEL ON OCTOBER 1, 1953, TO FEBRUARY 28, 1954, THE DATE FOR WHICH HE WAS LAST PAID WHILE ASSIGNED TO THE UNIT.

IT APPEARS THAT LIEUTENANT COLONEL WATERMAN WAS TRANSFERRED TO THE UNIT INVOLVED IN THE GRADE OF LIEUTENANT COLONEL ON DECEMBER 18, 1952; THAT LIEUTENANT COLONEL SWISHER WAS ASSIGNED TO THE UNIT IN THE GRADE OF LIEUTENANT COLONEL ON FEBRUARY 11, 1954; AND THAT LIEUTENANT COLONEL ROAKE WAS PROMOTED, WHILE ASSIGNED TO THE UNIT, FROM MAJOR TO LIEUTENANT COLONEL ON OCTOBER 1, 1953, THE PROMOTION BEING ACCEPTED OCTOBER 5, 1953.

DURING THE PERIOD THESE OFFICERS WERE ASSIGNED TO THE UNIT, THE APPLICABLE TABLE OF DISTRIBUTION PROVIDED THAT THE UNIT WAS AUTHORIZED A TOTAL OF 14 OFFICERS, DISTRIBUTED IN GRADES AS FOLLOWS: MAJORS-2; CAPTAINS -11; AND LIEUTENANT-1. EVIDENTLY NO PROVISION WAS MADE FOR LIEUTENANT COLONELS IN AN ORGANIZATION OF THE TYPE HERE INVOLVED.

SECTION 501 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, PROVIDES THAT, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, MEMBERS OF THE ARMY RESERVE SHALL BE ENTITLED TO RECEIVE COMPENSATION FOR EACH REGULAR PERIOD OF INSTRUCTION OR PERIOD OF DUTY AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR NOT LESS THAN TWO HOURS, PROVIDED THAT HE SHALL PRESCRIBE MINIMUM STANDARDS WHICH MUST BE MET BEFORE AN ASSEMBLY FOR A DRILL OR OTHER EQUIVALENT PERIOD OF TRAINING MAY BE CREDITED FOR PAY PURPOSES. IT THUS APPEARS THAT PAY AND ALLOWANCES ARE AUTHORIZED WHEN MEMBERS THE ARMY RESERVE PERFORM INACTIVE DUTY IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY OF THE ARMY.

PARAGRAPH 16, ARMY REGULATIONS 140-305, DECEMBER 5, 1952, PROVIDED FOR THE ORGANIZATION OF RESERVISTS INTO UNITS UNDER APPLICABLE ARMY TABLES OF ORGANIZATION AND EQUIPMENT AND TABLES OF DISTRIBUTION, UNLESS OTHERWISE PRESCRIBED BY THE DEPARTMENT OF THE ARMY, AND PARAGRAPH 34B AUTHORIZED AREA COMMANDERS TO PERMIT DEVIATION FROM THE GRADE STRUCTURE OF THE UNIT TO THE EXTENT NECESSARY TO MEET LOCAL CONDITIONS. NO PROVISION IS FOUND AUTHORIZING RETENTION OF OVERGRADE OFFICERS. ON THE CONTRARY, PARAGRAPH 11E, ARMY REGULATIONS 140-140, DECEMBER 4, 1952, PROVIDES THAT UPON PROMOTION AN OFFICER WILL BE REASSIGNED IF HE IS ASSIGNED TO A UNIT HAVING NO VACANCY FOR THE NEW GRADE AND PARAGRAPH 15E PROVIDES THAT MEMBERS OF THE ARMY RESERVE MAY NOT BE ASSIGNED TO A POSITION VACANCY THE AUTHORIZED GRADE OF WHICH IS LOWER THAN THAT HELD BY THE INDIVIDUAL. DESPITE SUCH PROVISIONS, HOWEVER, DURING THE PERIODS OF ASSIGNMENT HERE INVOLVED THE OFFICERS HELD GRADES HIGHER THAN THE HIGHEST GRADE AUTHORIZED IN THE TABLE OF DISTRIBUTION APPLICABLE TO THE TRAINING UNIT TO WHICH THEY WERE ASSIGNED, WITHOUT AUTHORIZATION FROM THE AREA COMMANDER FOR SUCH DEVIATION.

ON THIS RECORD THE PAY STATUS OF THE OFFICERS APPEARS TOO DOUBTFUL FOR US TO AUTHORIZE PAYMENT ON THE SUBMITTED PAYROLL VOUCHER, WHICH WILL BE RETAINED HERE. HOWEVER, IN THE CIRCUMSTANCES AND IN VIEW OF THE APPARENT GOOD FAITH OF THE OFFICERS IN PERFORMING THE INACTIVE DUTY TRAINING, THE PAYMENTS ALREADY RECEIVED BY THEM WILL NOT BE QUESTIONED ON ACCOUNT OF THE OVERGRADE SERVICE. COMPARE DECISION OF NOVEMBER 2, 1927, A-20099.