B-145274, JUN. 14, 1961

B-145274, JUN. 14, 1961

TO CAPTAIN J. R. NOGUERA, FC:

THE CHIEF OF FINANCE HAS FORWARDED HERE YOUR LETTER OF JANUARY 16, 1961, SUBMITTING A SUPPLEMENTAL INACTIVE DUTY TRAINING PAYROLL FOR THE PERIOD DECEMBER 1, 1959, TO FEBRUARY 29, 1960, RECEIVED FROM THE COMMANDING OFFICER, 7462ND USAR TRANSPORTATION ARMY TERMINAL, USAR CENTER, 444 NORTH 16TH STREET, PHILADELPHIA 30, PENNSYLVANIA, WITH SUPPORTING DOCUMENTS AND OTHER ENCLOSURES, AND REQUESTING DECISION WHETHER PAYMENT MAY BE MADE TO THE 61 OFFICERS WHOSE NAMES ARE LISTED THEREON FOR INACTIVE DUTY TRAINING ON JANUARY 7, 1960. THE REQUEST WAS ALLOCATED D.O. NUMBER A-564 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT YOU REFUSED PAYMENT TO THE OFFICERS CONCERNED, AS CLAIMED ON THE ORIGINAL PAYROLL, INASMUCH AS THE ENLISTED ATTENDANCE WAS NOT AT LEAST 60 PERCENT OF THE UNIT'S ASSIGNED ENLISTED STRENGTH AS REQUIRED BY PARAGRAPH 20-45B (2) (A), ARMY REGULATIONS NO. 37-104. YOU ALSO SAY THAT THE VALIDITY OF THE PRESENT CLAIM IS QUESTIONABLE IN VIEW OF SPECIAL ORDERS NO. 226, HEADQUARTERS XXI U.S. ARMY CORPS, DATED NOVEMBER 18, 1960, WHICH RETROACTIVELY CHANGED THE EFFECTIVE DATES OF CHANGE OF STRENGTH ACCOUNTABILITY FOR TWO OF THE ENLISTED MEN FROM JANUARY 13, 1960, AND JANUARY 14, 1960, TO DECEMBER 21, 1959, AND DECEMBER 11, 1959, AND WHICH WOULD HAVE THE EFFECT OF DECREASING THE ASSIGNED ENLISTED STRENGTH OF THE UNIT ON JANUARY 7, 1960, THEREBY ESTABLISHING THE ENTITLEMENT OF THE OFFICERS TO PAY FOR THAT DATE.

THE COMMANDING OFFICER OF THE 7462ND USAR TRANSPORTATION ARMY TERMINAL, IN HIS LETTER OF OCTOBER 9, 1960, TO THE COMMANDING GENERAL, XXI U.S. ARMY CORPS, ONE OF THE ENCLOSURES WHICH ACCOMPANIED YOUR LETTER, EXPLAINED THAT THE TABLE OF DISTRIBUTION STRENGTH OF THE UNIT HERE INVOLVED IS 72 OFFICERS, 2 WARRANT OFFICERS AND 9 ENLISTED MEN AND THAT OF THE 10 ENLISTED MEN ASSIGNED TO THE UNIT AS OF THE ASSEMBLY ON JANUARY 7, 1960, 5 WERE PRESENT. IT IS ALSO THERE STATED THAT---

"TWO (2) OF THE ABSENTEES, CPL HAFTEL AND CPL KAUFFMAN ARE MEN WHOSE MILITARY OBLIGATION TERMINATED IN DEC 1959. WHEN THIS OBLIGATION TERMINATED THEY CEASED ATTENDING MEETINGS. UNFORTUNATELY, HOWEVER, PARAGRAPH 56, SL 9, HQ XXI US ARMY CORPS, DATED 14 JAN 1960 WITH EDCSA: 14 JAN 60 IN THE CASE OF CPL MURRAY B. KAUFFMAN AND PARAGRAPH 60, SO 7, HQ XXI US ARMY CORPS, DATED 12 JAN 1960 WITH EDCSA: 13 JAN 1960 IN THE CASE OF CPL JEROME HAFTEL. NEITHER OF THESE ORDERS GAVE EDCSA OF MID-DECEMBER 1959 TO COINCIDE WITH THE TERMINATION OF THEIR OBLIGATION.'

PARAGRAPHS 118 AND 119 OF SPECIAL ORDERS NO. 226, HEADQUARTERS XXI UNITED STATES ARMY CORPS, DATED NOVEMBER 18, 1960, READ AS FOLLOWS:

"118. SO MUCH OF PAR 60 SO 7 THIS HQ CS AS PERTAINS ONLY TO SP4 (E 4) JEROME HAFTEL FR13563247 TC, USAR 1626 ELAINE ST PHILADELPHIA PA BEING TRF FROM THE READY RESERVE TO STANDBY RESERVE AND REL FROM ASG 7462D USAR TRANS ARMY TERM PHILADELPHIA PA (N 16TH ST USARC) AND ASG 2183 USAR CON GP (STANDBY) IGMR PA AS READS "EDCSA 13 JAN 60" IS AMENDED TO READ "CONF VOCG 21 DEC 59" AND ,EDCSA 21 DEC 59.'

"119. SO MUCH OF PAR 56 SO 9 THIS HQ CS AS PERTAINS ONLY TO SP4 (E 4) MURRAY B. KAUFFMAN FR13563248 TC, USAR 5119 D ST PHILA 20 PA BEING TRF FROM THE READY RES TO THE STANDBY RES AND REL FROM ASG 7462 USAR TRANS ARMY TERM PHILA PA (N 16TH ST. USARC) AND ASG2183 CON GP (STANDBY) IGMR PA AS READS "EDCSA 14 JAN 60" IS AMENDED TO READ "CONF VOCG 11 DEC 59" AND "EDCSA 11 DEC 59.'"

AS INDICATED ABOVE, SPECIAL ORDERS NO. 7 WERE DATED JANUARY 12, 1960, AND SPECIAL ORDERS NO. 9 WERE DATED JANUARY 14, 1960.

WE HAVE HELD GENERALLY FOR MANY YEARS THAT RETROACTIVE ORDERS ARE WITHOUT EFFECT EITHER TO INCREASE OR TO DECREASE VESTED RIGHTS OF GOVERNMENT PERSONNEL. SEE, FOR EXAMPLE, 23 COMP. GEN. 713 AND 24 COMP. GEN. 439. THE PRESENT CASE, THE ORDERS OF NOVEMBER 18, 1960, RETROACTIVELY PURPORT TO MODIFY THE EARLIER WRITTEN ORDERS ISSUED BY THE SAME AUTHORITY CONCERNING THE SAME PERSONS SO AS TO CHANGE EFFECTIVE DATES OF CHANGE OF STRENGTH ACCOUNTABILITY FROM JANUARY 13, 1960, AND JANUARY 14, 1960, TO DECEMBER 21, 1959, AND DECEMBER 11, 1959, AND IT IS INDICATED IN THE ORDERS OF NOVEMBER 18, 1960, THAT THEY WEREISSUED IN CONFIRMATION OF VERBAL ORDERS OF DECEMBER 21, 1959, AND DECEMBER 11, 1959. IN OTHER WORDS, THE NOVEMBER ORDERS STATE THAT THEY ARE IN CONFIRMATION OF VERBAL ORDERS GIVEN APPROXIMATELY A MONTH BEFORE THE WRITTEN ORDERS IN JANUARY WERE ISSUED. VERBAL ORDERS WHICH ARE INCONSISTENT WITH MORE NEARLY CONTEMPORANEOUS WRITTEN ORDERS ISSUED BY THE SAME AUTHORITY CONCERNING THE SAME PERSONS MAY NOT BE GIVEN EFFECT WHEN THE VERBAL ORDERS WERE NOT CONFIRMED FOR A LONG PERIOD OF TIME AFTER THEY PURPORTEDLY WERE GIVEN AND WHEN THERE IS NO EVIDENCE, OTHER THAN THE BELATED CONFIRMATORY ORDERS THEMSELVES, TO ESTABLISH THAT SUCH VERBAL ORDERS ACTUALLY WERE ISSUED. COMPARE B 139351, MAY 12, 1959, AND B-140920, NOVEMBER 24, 1959. THERE IS NO EVIDENCE IN THE PRESENT CASE OTHER THAN THE CONFIRMATORY ORDERS TO INDICATE THAT THE ALLEGED VERBAL ORDERS ACTUALLY WERE GIVEN. IT THEY WERE GIVEN, IT SHOULD HAVE BEEN IMMEDIATELY APPARENT THAT THE WRITTEN ORDERS IN JANUARY WERE NOT PROPER. THE CORRESPONDENCE ATTACHED TO YOUR REQUEST FOR DECISION CLEARLY SHOWS THAT THE JANUARY ORDERS WERE WRITTEN AS INTENDED AT THAT TIME AND THAT IT WAS NOT UNTIL THE QUESTION AS TO PAY FOR THE JANUARY 7TH DRILL AROSE THAT IT WAS DECIDED THAT THE JANUARY ORDERS WERE ERRONEOUS.

UNDER SUCH CIRCUMSTANCES, IT IS CONCLUDED THAT THE ORDERS OF NOVEMBER 18, 1960, DID NOT EFFECT THE TERMINATION OF THE ASSIGNMENTS OF THE TWO ENLISTED MEN HERE INVOLVED. THE ENLISTED ATTENDANCE ON JANUARY 7, 1960, WAS NOT, THEREFORE, AT LEAST 60 PERCENT OF THE UNIT'S ASSIGNED ENLISTED STRENGTH AS REQUIRED BY THE APPLICABLE REGULATIONS AND YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE SUPPLEMENTAL PAYROLL, WHICH, TOGETHER WITH THE SUPPORTING PAPERS, IS BEING RETAINED HERE.