B-143510, SEP 29, 1960

B-143510: Sep 29, 1960

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WHO WAS RETROACTIVELY PROMOTED AS OF A DATE PRECEDING THE DATE OF ORDERS TO EXTENDED ACTIVE DUTY. OFFICIALS OF YOUR DEPARTMENT HAVE ENDEAVORED TO JUSTIFY PAYMENT UNDER AUTHORITY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE AND. SINCE OUR VIEWS ARE INCONSISTENT WITH SUCH OPINION. WAS ORDERED TO ACTIVE DUTY ON JUNE 4. SHOW THAT HE WAS PAID AS A SECOND LIEUTENANT FOR THE PERIOD JUNE 4 TO DECEMBER 3. OR AFTER THE DATE IT IS ACCOMPLISHED AND THAT THE OFFICER CONCERNED SHALL BE ENTITLED TO THE PAY. WHILE HE IS SERVING ON ACTIVE DUTY. IS PROMOTED TO A GRADE HIGHER THAN THE GRADE IN WHICH HE IS SERVING. ALLOWANCES OF THAT HIGHER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE DUTY IN THAT HIGHER GRADE OR IS TEMPORARILY PROMOTED TO THAT HIGHER GRADE.".

B-143510, SEP 29, 1960

PRECIS-UNAVAILABLE

MR. SECRETARY:

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS RAISED A QUESTION CONCERNING THE ENTITLEMENT OF A RESERVE OFFICER, WHO WAS RETROACTIVELY PROMOTED AS OF A DATE PRECEDING THE DATE OF ORDERS TO EXTENDED ACTIVE DUTY, TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE HE REPORTED FOR SUCH DUTY. IN THE PARTICULAR SITUATION PRESENTED, MORE FULLY SET FORTH BELOW, OFFICIALS OF YOUR DEPARTMENT HAVE ENDEAVORED TO JUSTIFY PAYMENT UNDER AUTHORITY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE AND, SINCE OUR VIEWS ARE INCONSISTENT WITH SUCH OPINION, WE THINK THAT THE MATTER WARRANTS YOUR CONSIDERATION.

THE OFFICER INVOLVED, LEE C. ROBINSON, JR., A02217121, WHILE HOLDING THE RANK OF SECOND LIEUTENANT IN THE AIR FORCE RESERVE, WAS ORDERED TO ACTIVE DUTY ON JUNE 4, 1956 (UNDER ORDERS OF FEBRUARY 28, 1956, AS AMENDED APRIL 25 AND MAY 25, 1956) FOR A TWO YEAR TOUR OF ACTIVE DUTY UNLESS SOONER RELIEVED, IN HIS THEN RANK OF SECOND LIEUTENANT. ORDERS OF DECEMBER 4, 1956, ANNOUNCED HIS TEMPORARY PROMOTION TO THE GRADE OF FIRST LIEUTENANT, U.S. AIR FORCE, AS OF THAT DATE, AND ORDERS OF AUGUST 6, 1957, PROMOTED HIM TO THE GRADE OF FIRST LIEUTENANT OF THE AIR FORCE RESERVE, EFFECTIVE JULY 1, 1955. ORDERS DATED AUGUST 26, 1957, AMENDED THE ORDERS OF FEBRUARY 28, 1956, AS AMENDED, SO AS TO REFER TO HIM AS FIRST LIEUTENANT. HIS MILITARY PAY RECORDS OPENED JUNE 4 AND JULY 1, 1956, SHOW THAT HE WAS PAID AS A SECOND LIEUTENANT FOR THE PERIOD JUNE 4 TO DECEMBER 3, 1956; HOWEVER, HIS MILITARY PAY RECORD OPENED JULY 1, 1957, SHOWS A CREDIT ADJUSTMENT FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN A SECOND AND FIRST LIEUTENANT (WITH OVER THREE YEARS' SERVICE), AGGREGATING $283.59.

SECTION 502(D) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, AS AMENDED, 50 U.S.C. 1332(D) (1952 ED., SUPP. IV), PROVIDED THAT A PROMOTION MAY BE MADE EFFECTIVE BEFORE, ON, OR AFTER THE DATE IT IS ACCOMPLISHED AND THAT THE OFFICER CONCERNED SHALL BE ENTITLED TO THE PAY, ALLOWANCES AND BENEFITS AUTHORIZED BY LAW FOR THE HIGHER GRADE FROM SUCH EFFECTIVE DATE "UNLESS EXPRESSLY PROVIDED OTHERWISE IN THIS ACT." SECTION 511(D) OF THE 1954 ACT, AS AMENDED, 50 U.S.C. 1341(D) (1952 ED. SUPP. IV), PROVIDED AS FOLLOWS:

"A RESERVE OFFICER WHO, WHILE HE IS SERVING ON ACTIVE DUTY, IS PROMOTED TO A GRADE HIGHER THAN THE GRADE IN WHICH HE IS SERVING, MAY NOT SERVE ON ACTIVE DUTY IN THE GRADE TO WHICH PROMOTED, OR BE ENTITLED WHILE ON THAT PERIOD OF ACTIVE DUTY TO THE RANK, PAY, AND ALLOWANCES OF THAT HIGHER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE DUTY IN THAT HIGHER GRADE OR IS TEMPORARILY PROMOTED TO THAT HIGHER GRADE."

ON FEBRUARY 16, 1959, OUR DEFENSE ACCOUNTING AND AUDITING DIVISION STATED AN EXCEPTION AGAINST THE CREDIT ADJUSTMENT FOR THE PAY AND ALLOWANCES IN THE OFFICER'S MILITARY PAY RECORD ON THE BASIS THAT SECTION 502(D) DID NOT ALLOW RETROACTIVE PAY AND ALLOWANCES TO THE OFFICER, SINCE HE WAS PROMOTED TO A HIGHER GRADE WHILE ON ACTIVE DUTY AND DURING THE PERIOD IN QUESTION SERVED IN THE LOWER GRADE. THE NOTICE OF EXCEPTION WAS REVISED ON SEPTEMBER 23, 1959, AFTER IT WAS CONCLUDED THAT A WRITTEN EXPLANATION FURNISHED BY THE OFFICER ON JUNE 23, 1959, TO YOUR DEPARTMENT WAS INSUFFICIENT TO ESTABLISH THE VALIDITY OF THE INCREASED PAYMENT RECEIVED BY HIM.

THEREAFTER YOUR DEPARTMENT REQUESTED RECONSIDERATION OF THE ACTION TAKEN IN VIEW OF AN OPINION RENDERED BY THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE IN A SIMILAR CASE, OPINION 1956/8, DATED FEBRUARY 10, 1956, REPORTED IN VOL. 6, PAGE 408, DIGEST OF OPINIONS, THE JUDGE ADVOCATES GENERAL OF THE ARMED FORCES. IN THAT CASE THE OFFICER INVOLVED, ALSO A SECOND LIEUTENANT WHO WAS ELIGIBLE FOR CONSIDERATION FOR PROMOTION ON JULY 1, 1955, UNDER SECTION 509(A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, AS AMENDED, AND WHO WAS INADVERTENTLY OMITTED FROM THE PROMOTION LIST, WAS RECALLED TO ACTIVE DUTY ON NOVEMBER 29, 1955. IT WAS HELD THAT THE CASE CAME DIRECTLY WITHIN THE PURVIEW OF SECTION 502(D) AND, BASED UPON THE QUOTED EXPLANATION OF THE THEN PROPOSED SECTION 502(D) IN H. REPORT NO. 904, 84TH CONG., 1ST SESS. (1955), PAGE 7 (1955 U.S.C. CONGRESSIONAL AND ADMINISTRATIVE NEWS, PAGE 2252), THE FOLLOWING OPINION WAS RENDERED:

"IT IS THE OPINION OF THIS OFFICE THAT, UPON A DETERMINATION THAT LIEUTENANT GOLD WAS QUALIFIED FOR PROMOTION TO FIRST LIEUTENANT AT THE TIME HE WOULD HAVE BEEN ORIGINALLY CONSIDERED, HIS PROMOTION MAY BE MADE EFFECTIVE 1 JULY 1955. SINCE THIS WAS PRIOR TO ISSUANCE OF ACTIVE DUTY ORDERS THE EFFECT WOULD BE TO PLACE LIEUTENANT GOLD IN A STATUS OF HAVING BEEN A FIRST LIEUTENANT AT TIME OF BEING ORDERED TO ACTIVE DUTY AS HIS PROMOTION MUST BE CONSIDERED AS HAVING BEEN MADE 1 JULY 1955 RATHER THAN THE DATE OF DETERMINATION AND SELECTION. FURTHER, IN THE EVENT THE ACTIVE DUTY ORDERS ARE AMENDED TO REFLECT HIS PROPER GRADE, THERE WOULD BE NO QUESTION OF THE MATTER COMING UNDER THE PROVISIONS OF SECTION 511(C) AND (D), AND SUBJECT OFFICER WOULD BE ENTITLED TO PAY AND ALLOWANCES OF THE HIGHER GRADE FROM 1 JULY 1955."

WE ARE IN ACCORD WITH THAT PART OF THE OPINION THAT THE OFFICER COVERED THEREBY WOULD BE ENTITLED TO BE RETROACTIVELY PROMOTED AS OF JULY 1, 1955, IF DETERMINED THAT HE WAS QUALIFIED FOR PROMOTION AT THE TIME HE WOULD HAVE BEEN ORIGINALLY CONSIDERED, SINCE IT WAS THE INTENT OF CONGRESS BY THE ENACTMENT OF SECTION 502(D), AS INDICATED BY HOUSE REPORT NO. 904, TO PERMIT THE AIR FORCE TO TAKE NECESSARY CORRECTIVE ACTION IN APPROPRIATE CASES TO RESTORE THE OFFICERS WHO ARE RETROACTIVELY PROMOTED TO THEIR PROPER PLACES IN THE PROMOTION SYSTEM. WE DO NOT CONCUR, HOWEVER, WITH THE CONCLUSION EXPRESSED IN THE OPINION THAT THE INVOLVED OFFICER WAS ENTITLED TO PAY AND ALLOWANCES OF THE HIGHER GRADE FROM JULY 1, 1955. SUCH CONCLUSION WAS PREDICATED ON THE PREMISE THAT SECTION 511(D) WOULD BE INAPPLICABLE IN THE EVENT THE OFFICER'S ACTIVE DUTY ORDERS ARE AMENDED TO REFLECT HIS PROPER GRADE. THE REASONING SUPPORTING THAT CONCLUSION DOES NOT APPEAR TO BE TENABLE, SINCE THE PURPOSE OF SECTION 511(D) CONSIDERED IN CONJUNCTION WITH SECTION 502(D) WAS TO PREVENT RETROACTIVE ENTITLEMENT TO THE RANK, PAY AND ALLOWANCES OF THE HIGHER GRADE IN THE CASE OF A RESERVE OFFICER WHO IS PROMOTED TO SUCH HIGHER GRADE WHILE ON ACTIVE DUTY. PERTINENT IN THIS CONNECTION IS THE EXPLANATION OF THE THEN PROPOSED SECTION 511(D) IN HOUSE REPORT NO. 904, PAGE 10 (1955 U.S.C. CONGRESSIONAL AND ADMINISTRATIVE NEWS, PAGE 2254) AND S. REPORT NO. 368, 84TH CONG., 1ST SESS. (1955), PAGE 7, AS FOLLOWS:

"THE PURPOSE OF THE SUBSECTION (D) IS TO PREVENT ENTITLEMENT TO THE RANK, PAY AND ALLOWANCES OF THE HIGHER GRADE IN THE CASE OF A RESERVE OFFICER WHO IS PROMOTED TO THAT HIGHER GRADE WHILE ON ACTIVE DUTY, BUT WHO CONTINUES TO SERVE ON ACTIVE DUTY IN ANY LOWER TEMPORARY OR PERMANENT GRADE, OR WHO, WITHIN THE PERIOD PRESCRIBED IN SUBSECTION (B) DECLINED TO ACCEPT AN APPOINTMENT IN A LOWER TEMPORARY GRADE. IT WOULD PREVENT SUCH AN OFFICER FROM CLAIMING THE ACTIVE-DUTY RANK, PAY, AND ALLOWANCES OF THE GRADE TO WHICH HE IS PROMOTED BUT IN WHICH HE DOES NOT SERVE, INCLUDING A PROMOTION MADE EFFECTIVE RETROACTIVELY UNDER SECTION 502(D)."

THE REFERENCE TO SUCH SECTION 502(A) APPEARS TO BE ERRONEOUS AND PRESUMABLY THE REPORTS SHOULD HAVE REFERRED TO SECTION 502(D), SINCE SUBSECTION (D) OF SECTION 502 CONTAINS THE PROVISIONS RELATING TO RETROACTIVE PROMOTIONS.

IT SEEMS CLEAR FROM THE FOREGOING THAT CONGRESS DID NOT INTEND THAT A RESERVE OFFICER WHO IS PROMOTED-- RETROACTIVELY OR OTHERWISE-- WHILE ON ACTIVE DUTY, SHOULD BE PAID THE PAY AND ALLOWANCES OF THE HIGHER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE DUTY IN THE HIGHER GRADE OR IS TEMPORARILY PROMOTED TO THAT GRADE. SINCE LIEUTENANT ROBINSON WAS PROMOTED TO FIRST LIEUTENANT IN THE AIR FORCE RESERVE WHILE HE WAS SERVING ON ACTIVE DUTY AND HE PERFORMED SERVICE AS A SECOND LIEUTENANT UNTIL HE WAS TEMPORARILY PROMOTED TO THE GRADE OF FIRST LIEUTENANT ON DECEMBER 4, 1956, WE ARE NOT AWARE OF ANY PROVISION OF LAW UNDER WHICH HE WOULD BE ENTITLED TO THE AMOUNT REPRESENTED BY THE ADJUSTMENT CREDIT IN HIS MILITARY PAY RECORD. THE AMENDMENT OF HIS ORDERS OF FEBRUARY 28, 1956, AS AMENDED, TO REFER TO HIM AS A FIRST LIEUTENANT DID NOT CHANGE THE FACT THAT HE SERVED ON ACTIVE DUTY AS A SECOND LIEUTENANT DURING THE PERIOD JUNE 4 TO DECEMBER 3, 1956, AND, CONSEQUENTLY, SUCH AMENDMENT DID NOT CREATE ANY RIGHT TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE.

THE NOTICE OF EXCEPTION WAS REVISED AGAIN ON DECEMBER 10, 1959, AND YOUR DEPARTMENT RESPONDED ON DECEMBER 31, 1959, CITING SECTION 502(D), PRESUMABLY BASED UPON THE HOLDING IN THE ABOVE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE. IN VIEW OF THE PROHIBITION CONTAINED IN SECTION 511(D) AND THE LEGISLATIVE HISTORY SHOWING THAT SECTION 511(D) WAS INTENDED TO APPLY TO RETROACTIVE PROMOTIONS UNDER SECTION 502(D) WHEN THE RESERVE OFFICER IS SERVING ON ACTIVE DUTY, NO BASIS IS APPARENT FOR REMOVING THE NOTICE OF EXCEPTION AGAINST THE CREDIT ADJUSTMENT.

WE FIND THAT THE SUBSTANCE OF THE SUBJECT OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE HAS BEEN EMBODIED IN THE U.S. AIR FORCE FINANCE TECHNICAL DIGEST OF MAY 17, 1957, VOL. V. NO. 20, PAGE 9, SUPPLEMENTING PREVIOUS INFORMATION PUBLISHED IN THE DIGEST OF NOVEMBER 4, 1955, VOL. III, NO. 44, PAGE 13. SECTIONS 502(D) AND 511(D) HAVE NOW BEEN CODIFIED IN 10 U.S.C. 8363(F) AND 8380(A) (1958 ED.). HENCE, IT MAY BE ASSUMED THAT THE MILITARY PAY RECORDS OF RESERVE OFFICERS PROMOTED UNDER SIMILAR CIRCUMSTANCES REFLECT ADJUSTMENT CREDIT FOR THE DIFFERENCE IN PAY OF THE HIGHER GRADE. IN SUCH INSTANCES THE ADJUSTMENT CREDITS MUST BE CONSIDERED AS IMPROPER. THEREFORE, OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS BEEN INSTRUCTED TO TAKE EXCEPTION TO SUCH IMPROPER CREDIT ADJUSTMENTS OR PAYMENTS. IT IS ASSUMED THAT THE REGULATIONS AND INSTRUCTIONS OF YOUR DEPARTMENT WILL BE MODIFIED SO AS TO EFFECT A DISCONTINUANCE OF SUCH IMPROPER ADJUSTMENTS OR PAYMENTS.