B-125599, DEC. 27, 1955

B-125599: Dec 27, 1955

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YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT SINCE THE DEPARTMENT OF THE ARMY REPORTED THAT YOU SERVED ON ACTIVE DUTY AS A LIEUTENANT COLONEL. YOU WERE ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THAT GRADE. SOUTHWORTH ENTERED ON EXTENDED ACTIVE DUTY 6 DECEMBER 1940 AND WAS PROMOTED TO LIEUTENANT COLONEL. THE RECORDS FURTHER SHOW HE WAS APPOINTED COLONEL. HIS CURRENT ACTIVE DUTY STATUS WAS NOT AFFECTED BY THIS APPOINTMENT. TO 17 AUGUST 1948 WHEN HE WAS RELIEVED BY DEMOBILIZATION. THERE IS NO RECORD OF ORDERS SHOWING THAT SUBJECT OFFICER SERVED IN THE GRADE OF COLONEL. IN THAT DECISION THERE WAS CONSIDERED THE CASE OF AN OFFICER WHO WAS "ORDERED" TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD OCTOBER 12 TO 26.

B-125599, DEC. 27, 1955

TO MR. ROBERT B. SOUTHWORTH:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 4, 1955, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN SETTLEMENT DATED FEBRUARY 12, 1952, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL AND THAT OF A COLONEL DURING THE PERIOD JULY 1 TO AUGUST 17, 1948, WHILE SERVING IN THE ARMY.

YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT SINCE THE DEPARTMENT OF THE ARMY REPORTED THAT YOU SERVED ON ACTIVE DUTY AS A LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, DURING THE PERIOD IN QUESTION, YOU WERE ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THAT GRADE. IN THAT CONNECTION, THE ADJUTANT GENERAL OF THE ARMY FURNISHED US A REPORT ON YOUR CASE DATED JANUARY 17, 1952, AS FOLLOWS:

"THE RECORDS SHOW ROBERT B. SOUTHWORTH ENTERED ON EXTENDED ACTIVE DUTY 6 DECEMBER 1940 AND WAS PROMOTED TO LIEUTENANT COLONEL, AUS, 29 OCTOBER 1942. THE RECORDS FURTHER SHOW HE WAS APPOINTED COLONEL, CAC, RESERVE, 22 AUGUST 1947 AND ACCEPTED 1 SEPTEMBER 1947. HOWEVER, HIS CURRENT ACTIVE DUTY STATUS WAS NOT AFFECTED BY THIS APPOINTMENT. HE CONTINUED ON EXTENDED ACTIVE DUTY IN THE GRADE OF LIEUTENANT COLONEL, AUS, TO 17 AUGUST 1948 WHEN HE WAS RELIEVED BY DEMOBILIZATION. THERE IS NO RECORD OF ORDERS SHOWING THAT SUBJECT OFFICER SERVED IN THE GRADE OF COLONEL, CAC, RESERVE FOR HIS TOUR OF DUTY FROM 6 DECEMBER 1940 TO 17 AUGUST 1948.'

YOU REQUEST RECONSIDERATION OF YOUR CLAIM ON THE BASIS OF OUR DECISION DATED JUNE 29, 1954, 33 COMP. GEN. 612. IN THAT DECISION THERE WAS CONSIDERED THE CASE OF AN OFFICER WHO WAS "ORDERED" TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD OCTOBER 12 TO 26, 1953, IN THE RANK OF LIEUTENANT COLONEL, UNITED STATES ARMY RESERVE, AND WHO BY LETTER OF APPOINTMENT DATED OCTOBER 15, 1953, WAS APPOINTED COLONEL IN THE ARMY RESERVE EFFECTIVE THAT DATE. IT WAS HELD THAT SINCE THE OFFICER WAS ON ACTIVE DUTY FOR TRAINING IN THE "ARMY RESERVE" AND HIS PROMOTION WAS IN THE "ARMY RESERVE," IT WAS NOT NECESSARY FOR HIM TO RECEIVE ORDERS ADDRESSED TO HIM IN THE HIGHER GRADE CALLING HIM TO ACTIVE DUTY FOR TRAINING IN SUCH HIGHER GRADE TO BECOME ENTITLED TO THE PAY OF THAT GRADE WHILE PERFORMING ACTIVE DUTY FOR TRAINING UNDER COMPETENT ORDERS ON AND AFTER THE DATE OF HIS PROMOTION. AS A RESULT OF THAT DECISION, INSTRUCTIONS WERE ISSUED AT HEADQUARTERS, FOURTH ARMY, FORT SAM HOUSTON, TEXAS, DATED AUGUST 12, 1955, SUBJECT: "PROMOTION OF RESERVE OFFICERS IN ARMY RESERVE," INDICATING THE PERSONS ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED. YOU INVITE PARTICULAR ATTENTION TO PARAGRAPH 4B (2) READING AS FOLLOWS:

"/2) ANY RESERVE OFFICER WHO, WHILE SERVING ON ACTIVE DUTY IN HIS RESERVE STATUS, WAS PROMOTED BY LETTER OF APPOINTMENT TO A HIGHER RESERVE GRADE AND CONTINUED ON ACTIVE DUTY IN HIS RESERVE GRADE. THIS DOES NOT APPLY IN THE CASE OF RESERVE OFFICERS ON ACTIVE DUTY IN AN AUS STATUS, WHO WERE GIVEN HIGHER RESERVE GRADES, AND WHO CONTINUED ON ACTIVE DUTY IN THEIR AUS STATUS, OR TO CASES OF RESERVE OFFICERS ON ACTIVE DUTY AS AUS OFFICERS, PRIOR TO BEING TENDERED THE RESERVE PROMOTION.'

YOU TAKE EXCEPTION TO THE PROVISIONS OF THAT PARAGRAPH BY STATING THAT YOU DO NOT SEE HOW YOU COULD BE CONSIDERED TO HAVE BEEN SERVING IN AN "AUS" STATUS AFTER JULY 1, 1948, WHEN YOU DECLINED TO EXECUTE A NEW OATH AS A LIEUTENANT COLONEL,"AUS.'

AS STATED IN OUR DECISION OF JUNE 29, 1954, THE OFFICER WAS "ORDERED" TO ACTIVE DUTY IN HIS ,ARMY RESERVE" STATUS AND HIS PROMOTION WAS IN THE ARMY RESERVE. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU WERE SERVING ON ACTIVE DUTY AS A LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, ON JUNE 30, 1948. THE FACT THAT YOU REFUSED TO ACCEPT A NEW APPOINTMENT AS LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, WHICH REPORTEDLY EXPIRED ON JUNE 30, 1948, DID NOT HAVE THE EFFECT OF ,ORDERING" YOU TO ACTIVE DUTY IN YOUR ARMY RESERVE STATUS AS A COLONEL FOR THE PERIOD JULY 1 TO AUGUST 17, 1948, AND IN THE ABSENCE OF SUCH ORDERS ON JULY 1, 1948, CONTINUED TO SERVE AS A LIEUTENANT COLONEL, ARMY OF THE UNITED STATES--- AT LEAST AS A DE FACTO OFFICER IN THAT GRADE--- DURING THE PERIOD JULY 1 TO AUGUST 17, 1948, THE DATE YOU WERE SEPARATED FROM THE SERVICE. THIS VIEW IS ALSO EXPRESSED BY THE DEPARTMENT OF THE ARMY IN LETTER DATED OCTOBER 26, 1951, FROM THE CHIEF OF FINANCE TO THE HONORABLE ALBERT THOMAS, HOUSE OF REPRESENTATIVES, WHICH YOU ENCLOSED WITH YOUR LETTER, STATING THAT "THE OFFICER'S CLAIM FOR PAY AS A COLONEL IS NOT VALID SINCE THE OFFICER WAS NEVER ORDERED TO ACTIVE DUTY IN THAT GRADE AND DID NOT PERFORM THE DUTIES OF A COLONEL UNDER HIS ORGANIZED RESERVE CORPS APPOINTMENT.'

ACCORDINGLY, SINCE YOU WERE PAID THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, DURING THE PERIOD JULY 1 TO AUGUST 17, 1948, THERE IS NO FURTHER AMOUNT DUE YOU AND THE SETTLEMENT OF FEBRUARY 12, 1952, IS SUSTAINED.

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