B-145420, JUN. 29, 1961

B-145420: Jun 29, 1961

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USAF: REFERENCE IS MADE TO YOUR LETTER OF MARCH 16. DURING WHICH PERIODS YOU CONTEND THAT YOU WERE EXERCISING A COMMAND ABOVE THAT PERTAINING TO YOUR GRADE WITHIN THE CONTEMPLATION OF SECTION 7 OF THE ACT OF APRIL 26. YOU SET FORTH VARIOUS REASONS WHY YOU BELIEVE THAT THE ORDERS IN YOUR CASE WERE ISSUED BY . COMPETENT AUTHORITY" AND WHY YOU BELIEVE THAT YOUR CLAIM SHOULD BE ALLOWED EVEN TOUGH SUCH ORDERS WERE NOT IN THE FORM PRESCRIBED BY WAR DEPARTMENT CIRCULAR NO. 120. " PROVIDED AS FOLLOWS: "5.VOCO 19 MARCH 1945 DESIGNATING MAJ WENDELL L BEVEN JR 025535 COMMANDING OFF OF THE 419TH BOMB SQ IS HEREBY CONFIRMED AND MADE A MATTER OF RECORD.'. YOU SAY THAT YOUR OFFICIAL SERVICE RECORD SHOWS THAT YOU WERE COMMANDING OFFICER OF THAT SQUADRON FROM FEBRUARY 2.

B-145420, JUN. 29, 1961

TO COLONEL WENDELL L. BEVAN, JR., USAF:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 16, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF MARCH 8, 1961, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES AUTHORIZED FOR A CAPTAIN AND THOSE AUTHORIZED FOR A LIEUTENANT COLONEL FOR THE PERIOD FROM FEBRUARY 2, 1945, TO FEBRUARY 13, 1945, AND FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES AUTHORIZED FOR A MAJOR AND THOSE AUTHORIZED FOR A LIEUTENANT COLONEL FOR THE PERIOD FROM FEBRUARY 14, 1945, TO JULY 12, 1945, DURING WHICH PERIODS YOU CONTEND THAT YOU WERE EXERCISING A COMMAND ABOVE THAT PERTAINING TO YOUR GRADE WITHIN THE CONTEMPLATION OF SECTION 7 OF THE ACT OF APRIL 26, 1898, 30 STAT. 365.

YOU SET FORTH VARIOUS REASONS WHY YOU BELIEVE THAT THE ORDERS IN YOUR CASE WERE ISSUED BY ,COMPETENT AUTHORITY" AND WHY YOU BELIEVE THAT YOUR CLAIM SHOULD BE ALLOWED EVEN TOUGH SUCH ORDERS WERE NOT IN THE FORM PRESCRIBED BY WAR DEPARTMENT CIRCULAR NO. 120, DATED MAY 12, 1943. ALSO, YOU CITE SEVERAL COURT CASES, INCLUDING THE CASE OF STILLMAN V. UNITED STATES, DECIDED DECEMBER 1, 1953, 126 CT.CL. 750.

SPECIAL ORDERS NO. 106, HEADQUARTERS 301ST BOMBARDMENT GROUP (H), AAF, DATED APRIL 19, 1945, ISSUED "BY ORDER OF COLONEL HOLMES," PROVIDED AS FOLLOWS:

"5.VOCO 19 MARCH 1945 DESIGNATING MAJ WENDELL L BEVEN JR 025535 COMMANDING OFF OF THE 419TH BOMB SQ IS HEREBY CONFIRMED AND MADE A MATTER OF RECORD.'

YOU SAY THAT YOUR OFFICIAL SERVICE RECORD SHOWS THAT YOU WERE COMMANDING OFFICER OF THAT SQUADRON FROM FEBRUARY 2, 1945, TO JULY 12, 1945. YOU ALSO SAY THAT DURING SUCH PERIOD YOU WERE NOT THE SENIOR OFFICER IN THAT SQUADRON. IT APPEARS THAT YOU WERE PROMOTED TO THE GRADE OF MAJOR ON FEBRUARY 14, 1945.

SECTION 7 OF THE ACT OF APRIL 26, 1898, 30 STAT. 365, 10 U.S.C. 694 (1940 EDITION), PROVIDED:

"IN TIME OF WAR EVERY OFFICER SERVING WITH TROOPS OPERATING AGAINST AN ENEMY WHO SHALL EXERCISE, UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY, A COMMAND ABOVE THAT PERTAINING TO HIS GRADE, SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE GRADE APPROPRIATE TO THE COMMAND SO EXERCISED: PROVIDED, THAT A RATE OF PAY EXCEEDING THAT OF A BRIGADIER GENERAL SHALL NOT BE PAID IN ANY CASE BY REASON OF SUCH ASSIGNMENT.'

THE 119TH ARTICLE OF WAR, 41 STAT. 811, 10 U.S.C. 1591 (1940 EDITION), PROVIDED AS FOLLOWS:

"IN TIME OF WAR OR PUBLIC DANGER, WHEN TWO OR MORE OFFICERS OF THE SAME GRADE ARE ON DUTY IN THE SAME FIELD, DEPARTMENT, OR COMMAND, OR OF ORGANIZATIONS THEREOF, THE PRESIDENT MAY ASSIGN THE COMMAND OF THE FORCES OF SUCH FIELD, DEPARTMENT, OR COMMAND, OR OF ANY ORGANIZATION THEREOF, WITHOUT REGARD TO SENIORITY OF RANK IN THE SAME GRADE.'

THE PROVISIONS OF PARAGRAPH 2 OF ARMY REGULATIONS NO. 600-20, AS AMENDED BY CHANGES NO. 8, DATED SEPTEMBER 25, 1944, WHICH WERE SUBSTANTIALLY IDENTICAL IN ALL RESPECTS HERE PERTINENT WITH PRIOR SUPERSEDED PROVISIONS IN WAR DEPARTMENT CIRCULAR NO. 120, DATED MAY 12, 1943, WERE AS FOLLOWS:

"2. ASSIGNMENT TO, OF JUNIOR IN SAME GRADE.--- A. AUTHORITY.

"2. ASSIGNMENT TO, OF JUNIOR IN SAME GRADE.--- A. AUTHORITY.

"/1) IN TIME OF WAR OR PUBLIC DANGER, WHEN TWO OR MORE OFFICERS OF THE SAME GRADE ARE ON DUTY IN THE SAME FIELD, DEPARTMENT, OR COMMAND, OR OF ORGANIZATIONS THEREOF, THE PRESIDENT MAY ASSIGN THE COMMAND TO ANY ONE OF SUCH OFFICERS, WITHOUT REGARD TO SENIORITY OF RANK IN THE SAME GRADE. SEE AW 119.

"/2) THE AUTHORITY CONFERRED UPON THE PRESIDENT BY AW 119 MAY BE DELEGATED BY THE SECRETARY OF WAR, ACTING FOR THE PRESIDENT, TO APPROPRIATE COMMANDERS.

"B. BY WHOM ASSIGNED.--- UNDER THE PROVISIONS OF A/2) ABOVE, AUTHORITY IS GRANTED TO DIVISION, CORPS, AND ARMY COMMANDERS; TO WING, BOMBER, FIGHTER, AND AIR SUPPORT COMMAND, AND AIR FORCE COMMANDERS; TO COMMANDERS OF COMPARABLE UNITS OF THE FIELD FORCES; TO THE COMMANDING GENERALS, TROOP CARRIER, AIR TRANSPORT, AND AIR SERVICE COMMANDS OF THE ARMY AIR FORCES; AND TO THEATER, DEFENSE COMMAND, SERVICE COMMAND, BASE COMMAND, AND DEPARTMENT COMMANDERS, TO DESIGNATE A JUNIOR OF SEVERAL OFFICERS OF THE SAME GRADE WITHIN A COMMAND AS COMMANDER THEREOF WITHOUT REGARD TO RELATIVE SENIORITY. WHEN AN OFFICER IS SO DESIGNATED THE FOLLOWING FORM WILL BE EMPLOYED IN ANNOUNCING HIS DESIGNATION IN SPECIAL ORDERS:

"BY DIRECTION OF THE PRESIDENT ANNOUNCEMENT IS MADE OF THE APPOINTMENT OF -------------------------------------------------------- --- AS (NAME, GRADE, SERIAL NUMBER, AND ARM OR SERVICE OF OFFICER) COMMANDING OFFICER (OR GENERAL) OF ---------------------- EFFECTIVE

(DESIGNATION OF UNIT) ------------ -------------.'

(DATE)

SECTION 7 OF THE ACT OF APRIL 26, 1898, REQUIRED THAT AN ASSIGNMENT TO HIGHER COMMAND BY VIRTUE OF ORDERS BE ISSUED BY COMPETENT AUTHORITY. THE 119TH ARTICLE OF WAR (NOW CODIFIED AT 10 U.S.C. 3578 AND 8578) VESTS IN THE PRESIDENT ALONE THE AUTHORITY TO ASSIGN OFFICERS TO THE COMMAND OF MILITARY FORCES WITHOUT REGARD TO SENIORITY OF RANK IN THE SAME GRADE. ADDITIONAL PAY FOR EXERCISING HIGHER COMMAND IS NOT AUTHORIZED, THEREFORE, IN ANY CASE WHERE THE ORDERS WERE NOT ISSUED BY THE PRESIDENT OR BY HIS DIRECTION. IN OUR DECISION OF MARCH 4, 1946, 25 COMP. GEN. 615, HOWEVER, WE RECOGNIZED THE APPARENT IMPRACTICABILITY OF ASSIGNMENTS BY THE PRESIDENT OF JUNIOR OFFICERS TO COMMAND OVER THEIR SENIOR OFFICERS IN TIME OF WAR, AND WE HELD THAT, FOR THE PURPOSE OF AUTHORIZING PAYMENT OF HIGHER COMMAND PAY UNDER THE 1898 ACT, ORDERS ISSUED PURSUANT TO WAR DEPARTMENT CIRCULAR NO. 120 PROPERLY MAY BE CONSIDERED AS "ORDERS ISSUED BY COMPETENT AUTHORITY.' AS WAS EXPLAINED ABOVE, SUCH REGULATIONS WERE SUPERSEDED BY ARMY REGULATIONS NO. 600-20 AND THOSE REGULATIONS NOW PRESCRIBE THE FORM OF THE ORDERS TO BE ISSUED IN CONNECTION WITH THE APPOINTMENT OF A JUNIOR OFFICER TO COMMAND.

ON SUCH BASIS, WE CONSISTENTLY HAVE HELD THAT WHERE THE ORDERS ANNOUNCING THE APPOINTMENT OF A JUNIOR OFFICER TO COMBAT COMMAND OMITTED THE WORDS "BY DIRECTION OF THE PRESIDENT" OR SIMILAR EXPRESSION, THE ORDERS WERE NOT EFFECTIVE TO AUTHORIZE PAYMENT OF HIGHER COMMAND PAY UNDER THE 1898 ACT. SINCE VIRTUALLY THE ONLY ACCEPTABLE EVIDENCE THAT THE APPOINTMENT IN FACT WAS MADE "BY DIRECTION OF THE PRESIDENT" WOULD BE WRITTEN ORDERS TO THAT EFFECT, WE WOULD NOT BE WARRANTED IN CONCLUDING THAT YOUR ASSIGNMENT TO THE COMMAND OF THE 419TH BOMBARDMENT SQUADRON WAS AN ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY FOR THE PURPOSE OF THE HIGHER COMMAND PAY STATUTE, THE ORDERS OF MARCH 19, 1945, AS CONFIRMED, CONTAINING NO INFORMATION INDICATING THAT THEY WERE ISSUED BY DIRECTION OF THE PRESIDENT.

THE COURT OF CLAIMS IN THE CASE OF KINSOLVING V. UNITED STATES, 63 CT.CL. 79, HELD THAT, IN VIEW OF THE PROVISIONS OF THE 119TH ARTICLE OF WAR, THE TERM "UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY," AS USED IN THE ACT OF APRIL 26, 1898, MEANS THAT SUCH ASSIGNMENT MUST BE BY ORDER OR AUTHORITY OF THE PRESIDENT. ALSO, SEE CAMPBELL V. UNITED STATES, 63 CT.CL. 133. WITH RESPECT TO THE STILLMAN CASE CITED BY YOU, THE COURT'S CONCLUSION IN THAT CASE INDICATES A CHANGE IN VIEW FROM THAT REACHED IN THE KINSOLVING AND CAMPBELL CASES--- WHICH CASES HAVE BEEN FOLLOWED AND APPLIED UNIFORMLY BY THE ADMINISTRATIVE AND ACCOUNTING OFFICERS SINCE THEY WERE DECIDED. HOWEVER, ALTHOUGH THOSE CASES WERE BROUGHT TO THE COURT'S ATTENTION, THE OPINION IN THE STILLMAN CASE NEITHER MENTIONS SUCH CASES NOR STATES ANY REASON FOR THE CHANGE IN THE COURT'S POINT OF VIEW. FOR SUCH REASONS, THE COURT'S DECISION IN THE STILLMAN CASE MAY NOT BE ACCEPTED AS AFFORDING A SUFFICIENT BASIS FOR FAVORABLE ACTION BY OUR OFFICE ON YOUR CLAIM. SEE 34 COMP. GEN. 202. WE FIND NOTHING IN THE OTHER TWO CASES CITED BY YOU (WALKER, 43 CT.CL. 1, AND TRUITT, 38 CT.CL. 398), WHICH FURNISHES ANY AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.