B-126266, MAY 18, 1956, 35 COMP. GEN. 649

B-126266, MAY 18, 1956, 35 COMP. GEN. 649

PAY - PROMOTIONS - EFFECTIVE DATE - DATE OF ANNOUNCEMENT V. EFFECTIVE DATE A MARINE CORPS RESERVE OFFICER WHO WAS NOTIFIED OF A TEMPORARY APPOINTMENT AFTER HAVING BEEN EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR PROMOTION, BUT WHO, BEFORE ACCEPTANCE OF THE APPOINTMENT, SUFFERED A DISABILITY IN LINE OF DUTY, IS ENTITLED TO THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL, RETROACTIVE TO DATE OF ELIGIBILITY FOR PROMOTION PURSUANT TO SECTION 408 (A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954.

TO CAPTAIN G. E. MCALEE, UNITED STATES MARINE CORPS, MAY 18, 1956:

BY FIRST ENDORSEMENT OF NOVEMBER 30, 1955, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF NOVEMBER 25, 1955, REQUESTING ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO ADJUST THE PAY ACCOUNT OF LIEUTENANT COLONEL ( MAJOR) THADDEUS LEVANDOWSKI, USMCR, SO AS TO CREDIT HIM WITH THE ADDITIONAL AMOUNT DUE IF HE IS ENTITLED TO THE DIFFERENCE BETWEEN PAY AND ALLOWANCES AS A MAJOR AND PAY AND ALLOWANCES AS A LIEUTENANT COLONEL, WITH OVER 12 YEARS' SERVICE, ON AND AFTER DECEMBER 31, 1954.

IN LETTER OF JUNE 27, 1955, THE COMMANDANT OF THE MARINE CORPS ADVISED THE OFFICER THAT THE PRESIDENT HAD TEMPORARILY APPOINTED HIM A LIEUTENANT COLONEL IN THE MARINE CORPS RESERVE TO RANK FROM OCTOBER 22, 1952, THE DATE HE BECAME ELIGIBLE FOR PROMOTION UNDER THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481, 50 U.S.C. 901. HE HAD BEEN FOUND PHYSICALLY QUALIFIED FOR PROMOTION TO THAT RANK WHEN HE WAS EXAMINED ON MAY 28, 1955. BY LETTER OF JULY 5, 1955, THE COMMANDANT ADVISED HIM THAT HE BECAME ELIGIBLE FOR PROMOTION ON DECEMBER 31, 1954, AND THAT INCREASED PAY AND ALLOWANCES WOULD ACCRUE FROM THAT DATE. THE LATER LETTER ERRONEOUSLY REFERRED TO A LETTER OF JUNE 16, 1955, INSTEAD OF THE LETTER OF JUNE 27, 1955. IT IS UNDERSTOOD THAT THEY WERE IDENTICAL AND THAT THE EARLIER LETTER OF JUNE 16 NEVER WAS DELIVERED. THE OFFICER ACCEPTED SUCH APPOINTMENT ON JULY 8, 1955. IT IS REPORTED THAT WHILE ON ACTIVE DUTY FOR TRAINING AS A MAJOR FOR THE PERIOD JUNE 16 TO 30, 1955, HE SUFFERED A DISABILITY IN LINE OF DUTY DUE TO AN INJURY SUSTAINED ON JUNE 27, 1955; THAT HE WAS FOUND UNFIT FOR DUTY BY A PHYSICAL EVALUATION BOARD BEFORE WHICH HE APPEARED ON AUGUST 24, 1955; AND THAT HE IS NOW RECEIVING FURTHER TREATMENT IN THE VETERANS ADMINISTRATION HOSPITAL, WEST ROXBURY, MASSACHUSETTS, PENDING FINAL DISPOSITION OF HIS CASE, AND IS BEING PAID THE ACTIVE-DUTY PAY AND ALLOWANCES OF A MAJOR WITH OVER 12 YEARS' SERVICE UNDER SECTION 4 OF THE ACT OF AUGUST 27, 1940, AS AMENDED, 34 U.S.C. 855C- 1.

SECTION 408 (A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, 68 STAT. 1169, 50 U.S.C. 1308, PROVIDES THAT:

NO RESERVE OFFICER SHALL BE PROMOTED TO A HIGHER GRADE UNTIL HE HAS QUALIFIED THEREFOR BY SUCH MORAL, PROFESSIONAL, AND PHYSICAL EXAMINATION AS THE SECRETARY MAY PRESCRIBE * * *.

IT IS SHOWN THAT THE OFFICER HERE WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR PROMOTION ON MAY 28, 1955. HIS APPOINTMENT BY THE PRESIDENT TO THE RANK OF LIEUTENANT COLONEL APPARENTLY WAS MADE ON THE BASIS OF SUCH PHYSICAL EXAMINATION AND THE APPOINTMENT WAS ITSELF UNCONDITIONAL. SUCH CIRCUMSTANCES, IT WOULD APPEAR THAT ALL THAT WAS REQUIRED TO EFFECT OR CONSUMMATE HIS PROMOTION WAS THE ACCEPTANCE OF THE TENDERED APPOINTMENT, WHICH ACTION WAS TAKEN ON JULY 8, 1955. IT IS OUR VIEW THAT HIS INJURY AFTER HE HAD BEEN EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR PROMOTION, AND AFTER THE APPOINTMENT TO THE HIGHER GRADE WAS ISSUED, DID NOT AFFECT HIS RIGHTS IN THE PREMISES. THE STATUTE DOES NOT REQUIRE A SHOWING OF PHYSICAL QUALIFICATION ON THE DATE OF ACCEPTANCE AND WE CANNOT SAY THAT HE WAS LEGALLY BOUND TO REFUSE THE APPOINTMENT, AT LEAST IN THE ABSENCE OF A CLEAR SHOWING THAT HE THEN WELL KNEW THAT HE WAS TOTALLY AND PERMANENTLY INCAPACITATED TO PERFORM THE DUTIES OF THE OFFICE. IN THE CASE CONSIDERED IN DECISION OF FEBRUARY 11, 1954, 33 COMP. GEN. 349, THE APPOINTMENT LETTER WAS NOT DELIVERED, THE STATUTORY REGULATIONS REQUIRING THAT IT BE WITHHELD UNTIL THE QUALIFICATIONS WERE ESTABLISHED.

IN VIEW OF THE PROVISION IN SECTION 406 (2) OF THE 1954 ACT, 50 U.S.C. 1306, THAT ON PROMOTION, A MARINE CORPS RESERVE OFFICER SHALL BE ALLOWED THE PAY AND ALLOWANCES OF THE HIGHER GRADE FOR DUTY PERFORMED FROM THE TIME HE BECAME ELIGIBLE FOR PROMOTION, IT APPEARS THAT THE OFFICER BECAME ENTITLED TO THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL FOR DUTY PERFORMED ON AND AFTER DECEMBER 31, 1954.