B-137685, NOVEMBER 28, 1958, 38 COMP. GEN. 398

B-137685: Nov 28, 1958

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MILITARY PERSONNEL - PAY - ACTIVE DUTY - GRADE OR RANK - HIGHER RESERVE GRADE A DISABILITY RETIRED OFFICER WHO WAS RECALLED TO ACTIVE DUTY IN THE GRADE CURRENTLY HELD IN THE ARMY OF THE UNITED STATES (COLONEL) BUT WHO HELD THE HIGHER RESERVE RANK OF MAJOR GENERAL WHICH WAS RECOGNIZED IN AN AMENDATORY ORDER MAY NOT BE REGARDED AS HAVING BEEN CALLED TO OR AS SERVING ON ACTIVE DUTY IN THE HIGHER GRADE. YOUR SUBMISSION WAS ASSIGNED D.O. COLONEL MITCHELL WAS RELEASED FROM HIS ASSIGNMENT AT FORT LEWIS. THE ORDERS ALSO PROVIDED THAT " DP AUS COM HELD IS TERM OF EFF DATE OF RET.'. WAS ORDERED TO ACTIVE DUTY "IN GRADE CURRENTLY HELD AS A COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES. WERE AMENDED BY SPECIAL ORDERS NO. 88.

B-137685, NOVEMBER 28, 1958, 38 COMP. GEN. 398

MILITARY PERSONNEL - PAY - ACTIVE DUTY - GRADE OR RANK - HIGHER RESERVE GRADE A DISABILITY RETIRED OFFICER WHO WAS RECALLED TO ACTIVE DUTY IN THE GRADE CURRENTLY HELD IN THE ARMY OF THE UNITED STATES (COLONEL) BUT WHO HELD THE HIGHER RESERVE RANK OF MAJOR GENERAL WHICH WAS RECOGNIZED IN AN AMENDATORY ORDER MAY NOT BE REGARDED AS HAVING BEEN CALLED TO OR AS SERVING ON ACTIVE DUTY IN THE HIGHER GRADE; EVEN THOUGH THE HIGHER GRADE MAY BE CONSIDERED IN THE COMPUTATION OF RETIRED PAY, 37 COMP. GEN. 585, IT DOES NOT ENTITLE THE MEMBER TO ACTIVE DUTY PAY AND ALLOWANCES BASED ON THE HIGHER GRADE AND THE AMENDATORY ORDERS MAY NOT BE REGARDED AS A PROMOTION BUT MERELY AS RECOGNITION OF THE HIGHER GRADE FOR RETIRED PAY PURPOSES.

TO LIEUTENANT JAMES D. RYAN, DEPARTMENT OF THE ARMY, NOVEMBER 28, 1958:

BY FIRST ENDORSEMENT DATED OCTOBER 13, 1958, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF SEPTEMBER 9, 1958, PRESENTING FOR DECISION A MILITARY PAY ORDER STATED IN FAVOR OF SPENCER H. MITCHELL, TOGETHER WITH A CLAIM FROM THE OFFICER, FOR THE DIFFERENCE BETWEEN THE ACTIVE-DUTY PAY AND ALLOWANCES OF A MAJOR GENERAL AND THE PAY AND ALLOWANCES RECEIVED BY HIM AS A COLONEL FOR THE PERIOD MARCH 1, 1956, TO AUGUST 31, 1958. YOUR SUBMISSION WAS ASSIGNED D.O. NO. 372 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORDS SHOW THAT BY SPECIAL ORDERS NO. 35, DATED FEBRUARY 17, 1956, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., COLONEL MITCHELL WAS RELEASED FROM HIS ASSIGNMENT AT FORT LEWIS, WASHINGTON, AND RETIRED, BY REASON OF PHYSICAL DISABILITY, EFFECTIVE FEBRUARY 29, 1956, WITH GRADE AND RETIRED PAY OF COLONEL UNDER THE PROVISIONS OF SECTION 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 AND 279. THE ORDERS ALSO PROVIDED THAT " DP AUS COM HELD IS TERM OF EFF DATE OF RET.' BY LETTER ORDER DATED FEBRUARY 9, 1956, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., ADDRESSED TO THE OFFICER AS COLONEL SPENCER H. MITCHELL, AGC, AUS, THE OFFICER, UNDER THE PROVISIONS OF SUBSECTION 515 (E), OFFICER PERSONNEL ACT OF 1947, 10 U.S.C. 506 (E), WITH HIS CONSENT, WAS ORDERED TO ACTIVE DUTY "IN GRADE CURRENTLY HELD AS A COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES," EFFECTIVE MARCH 1, 1956, FOR AN INDEFINITE PERIOD. THOSE ORDERS ASSIGNED THE OFFICER TO STATE HEADQUARTERS, SELECTIVE SERVICE SYSTEM, HELENA, MONTANA. THE RECORD FURTHER SHOWS THAT THE ORDERS OF FEBRUARY 17, 1956, WERE AMENDED BY SPECIAL ORDERS NO. 88, DATED MAY 1, 1958, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., TO SHOW THE OFFICER'S RETIRED GRADE ON FEBRUARY 29, 1956, AS MAJOR GENERAL. SPECIAL ORDERS NO. 174, DATED AUGUST 29, 1958, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., COLONEL MITCHELL WAS RELIEVED FROM ACTIVE DUTY EFFECTIVE AUGUST 31, 1958, AND REVERTED TO STATE CONTROL OF THE MONTANA NATIONAL GUARD. THE ORDERS STATE THAT THE OFFICER WAS RELEASED FROM ACTIVE DUTY UNDER THE PROVISIONS OF SECTION 681 (A) OF TITLE 10 OF THE U.S.C. WHICH PROVIDES THAT THE SECRETARY CONCERNED MAY AT ANY TIME RELEASE A RESERVE UNDER HIS JURISDICTION FROM ACTIVE DUTY.

THE OFFICER'S CLAIM, AND OTHER PAPERS WHICH ACCOMPANIED YOUR SUBMISSION, CITE AS AUTHORITY FOR PAYMENT OUR DECISION OF MARCH 7, 1958, B-123643, 37 COMP. GEN. 585. IN THAT CONNECTION, AMONG THE PAPERS SUBMITTED IS FOURTH ENDORSEMENT DATED AUGUST 14, 1958, FROM THE OFFICE OF THE CHIEF OF FINANCE TO THE COMMANDING OFFICER, FORT DOUGLAS, UTAH, STATING, IN PERTINENT PART, THAT "WHILE THERE IS NO QUESTION REGARDING THE GRADE FOR RETIRED PAY PURPOSES, DOUBT EXISTS AS TO WHETHER THAT DECISION COULD BE INTERPRETED AS AN AUTHORITY FOR THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IN THE GRADE OF MAJOR GENERAL RETROACTIVE TO 1 MARCH 1956.'

YOU EXPRESS THE BELIEF THAT THE FIRST PARAGRAPH OF THE LETTER ORDER DATED FEBRUARY 9, 1956, RECALLING THE OFFICER TO ACTIVE DUTY, DID IN FACT CONTEMPLATE HIS RETURN IN THE GRADE OF COLONEL, AND THAT THE CLAUSE,"EFFECTIVE 1 MARCH 1956," IN THE SAME LETTER ORDER REFERS, NOT PRECEDING STATEMENT CONCERNING "ORDERED TO ACTIVE DUTY IN THE GRADE CURRENTLY HELD," BUT TO THE DATE OF DESIRED COMPLIANCE WITH THE INTENT OF THE ORDERS. YOU SAY THAT IF THIS INTERPRETATION IS CORRECT, IT WOULD THEN FOLLOW THAT THE GRADE OF COLONEL, HELD AS OF FEBRUARY 9, 1956, WAS IN FACT THE GRADE INTENDED FOR THE OFFICER'S RETURN TO ACTIVE DUTY AND WAS IN NO WAY AFFECTED BY THE RETROACTIVE PROMOTION WHICH WAS BACK-DATED TO FEBRUARY 29, 1956.

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), PROVIDED, IN PERTINENT PART, FOR THE COMPUTATION OF THE DISABILITY RETIRED PAY OF A MEMBER OF THE UNIFORMED SERVICES ON THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER. SECTION 1372, TITLE 10, U.S.C. SUPERSEDED THE ABOVE SECTION 402 (D). IN OUR DECISION OF MARCH 7, 1958, WE SAID THAT WE WOULD FOLLOW THE RULE ESTABLISHED BY THE DECISIONS OF THE COURT OF CLAIMS IN THE TRACY V. UNITED STATES, 136 C.1CLS. 211; LOWELL V. UNITED STATES, C.1CLS. NO. 361-56; AND BUDD V. UNITED STATES, C.1CLS. 467-56 CASES, IN THE COMPUTATION OF DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 402 (D) OF THE 1949 ACT, OR SECTION 1372, TITLE 10, U.S.C. AS APPLICABLE, ON THE BASIS OF A PERMANENT RESERVE GRADE HELD BY THE INDIVIDUAL CONCERNED AT THE TIME OF HIS RETIREMENT WHICH IS HIGHER THAN THE GRADE IN WHICH HE WAS SERVING ON ACTIVE DUTY AT THAT TIME. IT WILL BE SEEN THAT THE ABOVE DECISION DEALT PRIMARILY WITH THE COMPUTATION OF RETIRED PAY. THERE IS NOTHING IN THAT DECISION WHICH WOULD INDICATE OR AUTHORIZE A RETROACTIVE RIGHT TO ACTIVE-DUTY PAY AND ALLOWANCES IN A GRADE HIGHER THAN THAT IN WHICH THE OFFICER ACTUALLY WAS SERVING ON ACTIVE DUTY. HENCE, THAT DECISION IS NOT FOR APPLICATION WITH RESPECT TO ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES AS IN THIS CASE.

UNDER THE PROVISIONS OF SECTION 515 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 907, 10 U.S.C. 506 (E), CITED IN LETTER ORDER OF FEBRUARY 9, 1946, THE PRESIDENT IS AUTHORIZED TO APPOINT QUALIFIED PERSONS AS TEMPORARY OFFICERS IN THE ARMY OF THE UNITED STATES. THE LETTER ORDER OF FEBRUARY 9, 1956, CLEARLY STATED THAT THE OFFICER WAS ORDERED TO ACTIVE DUTY IN GRADE CURRENTLY HELD AS A COMMISSIONED OFFICER OF THE " ARMY OF THE UNITED STATES.' HE WAS NOT ORDERED TO ACTIVE DUTY IN THE GRADE OF MAJOR GENERAL. SINCE COLONEL MITCHELL HELD THE RESERVE GRADE OF MAJOR GENERAL, NGUS, HE WAS ENTITLED, UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS CONSTRUED BY THE COURT OF CLAIMS, TO RECEIVE THE RETIRED PAY OF THAT GRADE. THE AMENDATORY ORDER OF MAY 1, 1958, WAS NOT A PROMOTION TO THE GRADE, THE OFFICER WAS ENTITLED UNDER THE LAW AS CONSTRUED BY THE COURT OF CLAIMS TO HAVE HIS RETIRED PAY COMPUTED ON THAT BASIS.

IT IS OUR VIEW THAT THE ORDERS OF FEBRUARY 9, 1956, CLEARLY CONTEMPLATED THAT THE OFFICER WOULD SERVE ON ACTIVE DUTY IN THE GRADE OF A COLONEL, AUS. SINCE HE WAS NOT CALLED TO AND DID NOT SERVE ON ACTIVE DUTY IN THE GRADE OF MAJOR GENERAL, HE IS NOT ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE. THE AMENDATORY ORDER OF MAY 5, 1958, DID NOT ADD TO HIS RIGHT INSOFAR AS ACTIVE DUTY PAY AND ALLOWANCES ARE CONCERNED. SEE, GENERALLY, 26 COMP. GEN. 245, AND 37 COMP. GEN. 538. ACCORDINGLY, THE PROPOSED PAYMENT IS NOT AUTHORIZED, AND THE PAPERS SUBMITTED WILL BE RETAINED HERE.