B-128663, AUG. 22, 1956

B-128663: Aug 22, 1956

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FC: REFERENCE IS MADE TO YOUR LETTER OF JUNE 13. REQUESTING AN ADVANCE DECISION WHETHER IT IS PROPER TO PAY A SUPPLEMENTAL PAYROLL VOUCHER. THE OFFICER WAS DIRECTED TO ATTEND DRILL. HE WAS DIRECTED TO PERFORM SIMILAR APPROPRIATE DUTY WITH THE SAME UNIT ON JANUARY 3. IT IS STATED THAT THE HEADQUARTERS. - (1) OFFICERS WHO PERFORM "APPROPRIATE DUTIES" WITHIN THE MEANING OF THESE REGULATIONS ARE THOSE OFFICERS WHO ARE COMMANDERS AND STAFF OFFICERS OF BATTALIONS AND HIGHER HEADQUARTERS. * * * "C. - "/1) OFFICERS AND WARRANT OFFICERS WITHIN THE MEANING OF THESE REGULATIONS WILL NORMALLY PERFORM "APPROPRIATE DUTIES" BY ATTENDANCE AT REGULARLY SCHEDULED DRILLS OR ASSEMBLIES OF THEIR OWN UNITS. "/2) COMMANDERS OF BATTALIONS OR HIGHER HEADQUARTERS MAY DIRECT OFFICERS REFERRED TO IN B/1) ABOVE TO PERFORM SUCH APPROPRIATE MILITARY DUTIES AS PLANNING.

B-128663, AUG. 22, 1956

TO MAJOR L. R. GRAVES, FC:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1956, REQUESTING AN ADVANCE DECISION WHETHER IT IS PROPER TO PAY A SUPPLEMENTAL PAYROLL VOUCHER, ENCLOSED WITH THE LETTER, COVERING THE CLAIM OF CAPTAIN DONALD J. CROSSIN, DETACHMENT COMMANDER, MEDICAL DETACHMENT, HEADQUARTERS, 28TH INFANTRY DIVISION, PENNSYLVANIA NATIONAL GUARD, FOR FIVE DAYS' DRILL PAY FOR PERFORMANCE OF APPROPRIATE DUTY WITH THE MEDICAL DETACHMENT, 109TH FIELD ARTILLERY BATTALION, PENNSYLVANIA NATIONAL GUARD, IN LIEU OF ATTENDANCE AT DRILLS OF HIS OWN UNIT.

BY PARAGRAPH 2, SPECIAL ORDERS NO. 28, DATED DECEMBER 10, 1954, THE OFFICER WAS DIRECTED TO ATTEND DRILL, OBSERVE TRAINING, AND CHECK SUPPLY AND ADMINISTRATION OF THE MEDICAL DETACHMENT, 109TH FIELD ARTILLERY BATTALION ON DECEMBER 13 AND 20, 1954, AS APPROPRIATE DUTY IN LIEU OF ATTENDING DRILL WITH THE MEDICAL DETACHMENT, HEADQUARTERS, 28TH INFANTRY DIVISION. BY PARAGRAPH 5, SPECIAL ORDERS NO. 31, DATED DECEMBER 31, 1954, HE WAS DIRECTED TO PERFORM SIMILAR APPROPRIATE DUTY WITH THE SAME UNIT ON JANUARY 3, 17, AND 24, 1955. SUCH ORDERS CITE AS AUTHORITY PARAGRAPH 22B, NATIONAL GUARD REGULATIONS 45. IN A CERTIFICATE DATED MAY 11, 1956, ATTACHED TO THE PAYROLL, IT IS STATED THAT THE HEADQUARTERS, 28TH INFANTRY DIVISION, DIRECTED CAPTAIN CROSSIN TO PERFORM THE APPROPRIATE DUTY IN QUESTION THROUGH A MISINTERPRETATION OF THE REGULATIONS, AND THAT THE OFFICER PERFORMED FIVE "APPROPRIATE DUTY DRILLS IN GOOD FAITH AS DIRECTED.'

PARAGRAPH 22, NATIONAL GUARD REGULATIONS 45, DATED JULY 14, 1952, AS CHANGED BY CHANGES NO. 2 DATED AUGUST 5, 1954, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"B. WHO MAY PERFORM "APPROPRIATE DUTIES.'--- (1) OFFICERS WHO PERFORM "APPROPRIATE DUTIES" WITHIN THE MEANING OF THESE REGULATIONS ARE THOSE OFFICERS WHO ARE COMMANDERS AND STAFF OFFICERS OF BATTALIONS AND HIGHER HEADQUARTERS. * * *

"C. NOW PERFORMED.---

"/1) OFFICERS AND WARRANT OFFICERS WITHIN THE MEANING OF THESE REGULATIONS WILL NORMALLY PERFORM "APPROPRIATE DUTIES" BY ATTENDANCE AT REGULARLY SCHEDULED DRILLS OR ASSEMBLIES OF THEIR OWN UNITS.

"/2) COMMANDERS OF BATTALIONS OR HIGHER HEADQUARTERS MAY DIRECT OFFICERS REFERRED TO IN B/1) ABOVE TO PERFORM SUCH APPROPRIATE MILITARY DUTIES AS PLANNING, SUPERVISING OR INSPECTING THE TRAINING, ADMINISTRATION OR SUPPLY OF UNITS WITHIN THEIR COMMANDS IN LIEU OF ATTENDING DRILL WITH THEIR OWN UNITS.'

THE FOREGOING REGULATIONS WERE ISSUED PURSUANT TO AUTHORITY OF SECTION 501 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, AND HAVE THE FORCE AND EFFECT OF LAW.

ACCORDINGLY, IT DOES NOT APPEAR THAT THERE WAS ANY AUTHORITY FOR THE PERFORMANCE OF APPROPRIATE DUTIES BY CAPTAIN CROSSIN--- THE COMMANDING OFFICER OF A UNIT LESS THAN A BATTALION--- WITH A UNIT OTHER THAN HIS OWN. WHILE HE MAY HAVE PERFORMED THE ORDERED DUTIES IN GOOD FAITH, THE PERTINENT LAW AND REGULATIONS DO NOT AUTHORIZE PAYMENT OF THE ARMORY DRILL PAY CLAIMED FOR HIS PERFORMANCE OF SUCH DUTIES.