B-138756, APR. 29, 1960

B-138756: Apr 29, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF MARCH 8. WHEREIN THE SUM OF $302.19 WAS WITHHELD BECAUSE OF AN OVERPAYMENT MADE TO THE OFFICER REPRESENTING THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A COLONEL WITH OVER 21 YEARS OF SERVICE AND THAT OF A LIEUTENANT COLONEL FOR THE PERIOD DECEMBER 21. THE OFFICER WAS ORDERED TO ACTIVE DUTY AS A MAJOR. THE RECORD INDICATES THAT WHILE HE WAS ON TERMINAL LEAVE AS A LIEUTENANT COLONEL HE WAS PROMOTED TO COLONEL. - WHICH WAS TO EXPIRE ON APRIL 8. THE UNEXPIRED PORTION OF HIS TERMINAL LEAVE WAS REVOKED EFFECTIVE MARCH 19. THE OFFICER WAS HOSPITALIZED UNTIL AUGUST 31. WHEN HE WAS RETURNED TO TEMPORARY LIMITED DUTY AS A LIEUTENANT COLONEL AND HE CONTINUED ON ACTIVE DUTY IN THAT CAPACITY UNTIL SEPTEMBER 30.

B-138756, APR. 29, 1960

TO MR. HARRY E. WOOD, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1960, WITH ENCLOSURES, REQUESTING ON BEHALF OF LIEUTENANT COLONEL ROLLAND S. ABRAHAMS, AUS, RETIRED, RECONSIDERATION OF THAT PART OF OUR SETTLEMENT DATED FEBRUARY 16, 1960, WHEREIN THE SUM OF $302.19 WAS WITHHELD BECAUSE OF AN OVERPAYMENT MADE TO THE OFFICER REPRESENTING THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A COLONEL WITH OVER 21 YEARS OF SERVICE AND THAT OF A LIEUTENANT COLONEL FOR THE PERIOD DECEMBER 21, 1945, TO AUGUST 31, 1946.

IT APPEARS FROM THE RECORD BEFORE US THAT, AFTER 17 YEARS' SERVICE IN THE RESERVE COMPONENTS IN THE ARMY OF THE UNITED STATES, THE OFFICER WAS ORDERED TO ACTIVE DUTY AS A MAJOR, OFFICERS' RESERVE CORPS, ON JANUARY 10, 1941. THE RECORD INDICATES THAT WHILE HE WAS ON TERMINAL LEAVE AS A LIEUTENANT COLONEL HE WAS PROMOTED TO COLONEL, ARMY OF THE UNITED STATES, EFFECTIVE DECEMBER 21, 1945, PURSUANT TO SPECIAL ORDERS NO. 340, DATED DECEMBER 21, 1945, FORT BRAGG, NORTH CAROLINA. IT ALSO APPEARS THAT WHILE ON TERMINAL LEAVE--- WHICH WAS TO EXPIRE ON APRIL 8, 1946--- AND PRIOR TO HIS RELEASE FROM ACTIVE DUTY THE OFFICER APPEARED BEFORE A BOARD FOR APPOINTMENT IN THE REGULAR ARMY AND SUCH BOARD FOUND HIM PHYSICALLY DISQUALIFIED FOR SUCH PURPOSE. THEREAFTER, BY SPECIAL ORDERS NO. 76, DATED MARCH 21, 1946, FORT BRAGG, NORTH CAROLINA, THE UNEXPIRED PORTION OF HIS TERMINAL LEAVE WAS REVOKED EFFECTIVE MARCH 19, 1946, DUE TO HOSPITALIZATION. THE OFFICER WAS HOSPITALIZED UNTIL AUGUST 31, 1946, WHEN HE WAS RETURNED TO TEMPORARY LIMITED DUTY AS A LIEUTENANT COLONEL AND HE CONTINUED ON ACTIVE DUTY IN THAT CAPACITY UNTIL SEPTEMBER 30, 1950, WHEN HE WAS RETIRED BY REASON OF PHYSICAL DISABILITY.

THE OFFICER'S PAY RECORD SHOWS HE WAS PAID THE PAY AND ALLOWANCES OF A COLONEL WITH OVER 21 YEARS OF SERVICE FROM DECEMBER 21, 1945, TO AUGUST 31, 1946. FROM SEPTEMBER 1, 1946, TO SEPTEMBER 30, 1950, HE WAS PAID THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL. THE RECORDS ALSO SHOW THAT THE OFFICER WAS APPOINTED COLONEL, OFFICERS' RESERVE CORPS, ON MARCH 24, 1946.

BY SETTLEMENT DATED FEBRUARY 16, 1960, THE OFFICER WAS ALLOWED THE SUM OF $6,013.50, LESS $302.19, REPRESENTING ADDITIONAL RETIRED PAY ON THE BASIS OF THE HOLDING IN NERI V. UNITED STATES, C.CLS. NO. 81-58, DECIDED APRIL 8, 1959. THE COURT HELD IN THAT CASE THAT THE OFFICER WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED IN THE HIGHER PERMANENT RESERVE GRADE--- IN WHICH HE HAD NOT SERVED--- THAN THE ARMY OF THE UNITED STATES GRADE IN WHICH HE WAS SERVING ON ACTIVE DUTY WHEN HE RETIRED. THE $302.19 WITHHELD IN THE SETTLEMENT REPRESENTED THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES OF A COLONEL AND THAT OF A LIEUTENANT COLONEL FOR THE PERIOD DECEMBER 21, 1945, TO AUGUST 31, 1946.

IN OBJECTING TO THE AMOUNT WITHHELD, YOU FURNISH COPIES OF EXTRACTS OF SPECIAL ORDERS AND WAR DEPARTMENT CIRCULARS WHICH YOU FEEL ENTITLE THE OFFICER TO SUCH PAY. YOU SAY THAT EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE OFFICER IS NOT ENTITLED TO SUCH PAY THERE IS FOR APPLICATION THE RULE THAT ONE WHO RECEIVES THE PAY ATTENDANT UPON AN OFFICE IN GOOD FAITH AND UNDER COLOR OF AUTHORITY MAY THEREAFTER NOT BE REQUIRED TO REFUND SUCH COMPENSATION.

THE OFFICER'S ORDERS (SPECIAL ORDERS NO. 340), DATED DECEMBER 21, 1945, PROMOTING HIM TO THE GRADE OF COLONEL, EXPRESSLY PROVIDED:

"IF OFFICER'S TERMINAL LV IS REVOKED AND HE IS RETURNED TO DUTY FOR ANY REASON, THIS PROMOTION WILL AUTOMATICALLY TERMINATE ON THAT DATE. OFFICER WILL BE RECOMMENDED WHEN HE IS AGAIN SEPARATED. REPORT CONTAINING THE PARAGRAPH AND SPECIAL ORDER NUMBERS AND THE DATE OF ORDER REVOKING LV WILL BE FORWARDED TO THE ADJUTANT GENERAL, ATTENTION: OFFICER BRANCH, PROMOTION SECTION.'

TERMINAL LEAVE PROMOTIONS WERE AUTHORIZED PURSUANT TO MESSAGES TWX TAGO DATED OCTOBER 31 AND DECEMBER 13, 1945. SUCH AUTHORITY WAS LATER CLARIFIED AND INTERPRETED IN THE FOLLOWING CIRCULARS CITED BY YOU.

WAR DEPARTMENT CIRCULAR NO. 222, DATED JULY 24, 1946, PROVIDED IN SECTION I, PARAGRAPH 1, THAT:

"1. OFFICERS PROMOTED ON RELIEF FROM ACTIVE DUTY UNDER THE PROVISIONS OF WD CIRCULAR 10, 1946, OR TWX TAGO, 31 OCTOBER OR 13 DECEMBER 1945, WHO ARE SUBSEQUENTLY RECALLED TO ACTIVE DUTY FOR DUTY STATUS, ARE RECALLED IN THE GRADE HELD PRIOR TO REPORTING AT SEPARATION CENTER FOR PROCESSING FOR RELIEF FROM ACTIVE DUTY. OFFICERS RECALLED TO ACTIVE DUTY FOR HOSPITALIZATION OR PHYSICAL EXAMINATION TO DETERMINE RETIREMENT BENEFITS ARE RECALLED IN THE GRADE TO WHICH PROMOTED ON RELIEF FROM ACTIVE DUTY.'

WAR DEPARTMENT CIRCULAR NO. 240, DATED AUGUST 10, 1946, PROVIDED IN SECTION V, PARAGRAPH 1, THAT:

"1. OFFICERS PROMOTED ON RELIEF FROM ACTIVE DUTY UNDER THE PROVISIONS OF WD CIRCULAR 10, 1946, WD CIRCULAR 140, 1946, OR TWX TAGO 31 OCTOBER OR 13 DECEMBER 1945, WHO ARE SUBSEQUENTLY RECALLED TO ACTIVE DUTY FOR ANY PURPOSE ARE RECALLED IN THE GRADE HELD PRIOR TO REPORTING AT SEPARATION CENTER FOR PROCESSING FOR RELIEF FROM ACTIVE DUTY. (THE PROVISION THAT OFFICERS RECALLED TO ACTIVE DUTY FOR HOSPITALIZATION OR PHYSICAL EXAMINATION TO DETERMINE RETIREMENT BENEFITS ARE RECALLED IN THE GRADE TO WHICH PROMOTED ON RELIEF FROM ACTIVE DUTY, IS REVOKED. TWX, TAGO, 23 FEBRUARY 1946, WHICH DIRECTED THAT CHANGES 1, AR 605 115, 16 JANUARY 1946, WILL NOT BE USED AS A DIRECTIVE FOR REVOCATION OF PROMOTIONS MADE UNDER WD CIRCULAR 10, IS REVOKED. PROMOTION ORDERS ISSUED UNDER THE AUTHORITIES CITED ABOVE WILL NOT BE REVOKED, BUT BY THE ADMINISTRATIVE ACTION OF RECALL IN A LOWER GRADE THE TEMPORARY APPOINTMENT IN A HIGHER GRADE WILL BE TERMINATED.)

WAR DEPARTMENT CIRCULAR NO. 144, DATED MAY 3, 1947, PROVIDED IN SECTION V, PARAGRAPH 1, THAT:

"A. THE PROVISIONS OF SECTION V, WD CIRCULAR 240, 1946, DO NOT APPLY TO AN OFFICER ON LEAVE PRIOR TO SEPARATION WHEN HOSPITALIZED WHILE ON SUCH LEAVE. AN OFFICER ON LEAVE PRIOR TO SEPARATION IS ON ACTIVE DUTY. IF HE IS HOSPITALIZED WHILE ON LEAVE PRIOR TO SEPARATION, NO CHANGE IS EFFECTED IN HIS STATUS, OTHER THAN A POSSIBLE SUSPENSION OF HIS LEAVE FOR THE PERIOD OF HOSPITALIZATION, AND SUCH HOSPITALIZATION DOES NOT CONSTITUTE RECALL TO ACTIVE DUTY. ACCORDINGLY, THE OFFICER WILL RECEIVE THE PAY AND ALLOWANCES OF THE GRADE HELD AT THE TIME OF HIS ENTRY INTO THE HOSPITAL.'

PRIOR TO THE OFFICER'S SEPARATION OR RELEASE FROM ACTIVE DUTY THERE WAS IN EFFECT CHANGES NO. 1 DATED JANUARY 16, 1946, TO PARAGRAPH 18, ARMY REGULATIONS 605-115, IN PERTINENT PART AS FOLLOWS:

"HOSPITALIZATION WHILE ON TERMINAL LEAVE.--- ANY OFFICER OF THE ARMY WHO IS ADMITTED TO ANY ARMY HOSPITAL WHILE ON TERMINAL LEAVE PRIOR TO SEPARATION FROM ACTIVE SERVICE WILL BE CONSIDERED TO BE ON A DUTY STATUS FROM THE DATE OF ADMISSION TO THE HOSPITAL. UPON DISCHARGE FROM THE HOSPITAL THE OFFICER'S TERMINAL LEAVE WILL BE RECOMPUTED AS PRESCRIBED IN PARAGRAPH 20. THE TERMINAL LEAVE USED PRIOR TO HOSPITALIZATION WILL BE CONSIDERED AS ORDINARY LEAVE.

"A.IN THE ADMINISTRATION OF SUCH CASES THE FACT OF ADMISSION TO AN ARMY HOSPITAL WILL AUTOMATICALLY RESCIND SO MUCH OF THE OFFICER'S ORDERS AS PERTAINS TO SEPARATION OR RELEASE FROM ACTIVE DUTY. * * * "

IT HAS BEEN HELD THAT UNDER THE PROVISIONS OF THE ABOVE-QUOTED REGULATION DATED JANUARY 16, 1946, OFFICERS WHO WERE ADMITTED TO AN ARMY HOSPITAL WHILE ON TERMINAL LEAVE--- WHICH DID NOT EXPIRE PRIOR TO JANUARY 16, 1946- -- CONTINUED IN AN ACTIVE DUTY STATUS FOR PAY AND ALLOWANCE PURPOSES. 72571, FEBRUARY 11, 1948.

UNDER THAT REGULATION AND THE ABOVE CITED WAR DEPARTMENT CIRCULARS IT REASONABLY APPEARS THAT THE OFFICER, AFTER HIS LEAVE WAS REVOKED AND DURING THE PERIOD HE WAS HOSPITALIZED, CONTINUED ON ACTIVE DUTY IN THE GRADE OF COLONEL. THEREFORE, SINCE HE WAS ENTITLED TO THE PAY AND ALLOWANCES OF A COLONEL UNDER HIS TERMINAL LEAVE PROMOTION UNTIL THE TERMINATION OF HOSPITALIZATION AND THE EXPIRATION OF HIS LEAVE, HE CONTINUED TO BE ENTITLED TO THE PAY AND ALLOWANCES OF THAT GRADE DURING HIS HOSPITALIZATION WHICH EXPIRED ON AUGUST 31, 1946.

ACCORDINGLY, A SUPPLEMENTAL SETTLEMENT WILL BE ISSUED IN THE AMOUNT OF $302.19, THE AMOUNT WITHHELD IN THE SETTLEMENT OF FEBRUARY 16, 1960.