B-145773, JUL. 25, 1961

B-145773: Jul 25, 1961

Additional Materials:

Contact:

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

 

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

077973: REFERENCE IS MADE TO YOUR LETTER OF APRIL 25. THE ARMY REGISTER SHOWS THAT YOU WERE APPOINTED AS FIRST LIEUTENANT. YOU WERE ORDERED TO ACTIVE DUTY BY PARAGRAPH 19. THE RECORDS INDICATE THAT YOU HAVE SERVED CONTINUOUSLY ON ACTIVE DUTY IN THE JUDGE ADVOCATE GENERAL'S CORPS SINCE THAT DATE. YOUR PURPORTEDLY WERE PROMOTED TO CAPTAIN IN THE JUDGE ADVOCATE GENERAL'S CORPS. EFFECTIVE WITH THAT PROMOTION YOU WERE DEEMED TO HAVE ACCEPTED A TEMPORARY APPOINTMENT IN THE GRADE IN WHICH SERVING AND CONTEMPLATED THAT. WAS EXECUTED AUGUST 28. THOSE ORDERS PROVIDED THAT ACCEPTANCE OF SUCH APPOINTMENT WOULD NOT AFFECT A HIGHER GRADE IN WHICH YOU MIGHT BE SERVING ON ACTIVE DUTY AT THE TIME OF ACCEPTANCE PROVIDED SUCH GRADE WAS CURRENTLY HELD IN THE ARMY OF THE UNITED STATES.

B-145773, JUL. 25, 1961

TO CAPTAIN HENRY L. BROWN, 077973:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 19, 1961, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES AUTHORIZED FOR A FIRST LIEUTENANT AND THOSE AUTHORIZED FOR A CAPTAIN FOR THE PERIOD FROM SEPTEMBER 5, 1955, TO SEPTEMBER 4, 1959, AS A MEMBER OF THE JUDGE ADVOCATE GENERAL'S CORPS OF THE ARMY.

THE ARMY REGISTER SHOWS THAT YOU WERE APPOINTED AS FIRST LIEUTENANT, JUDGE ADVOCATE GENERAL'S CORPS, UNITED STATES ARMY RESERVE, ON AUGUST 19, 1955. YOU WERE ORDERED TO ACTIVE DUTY BY PARAGRAPH 19, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 162, DATED AUGUST 16, 1955, AND DIRECTED TO PROCEED TO THE JUDGE ADVOCATE GENERAL'S SCHOOL, CHARLOTTESVILLE, VIRGINIA, WITH APPROXIMATELY 9 WEEKS' TEMPORARY DUTY EN ROUTE AT THE INFANTRY SCHOOL, FORT BENNING, GEORGIA, REPORTING NOT LATER THAN SEPTEMBER 6, 1955. THE RECORDS INDICATE THAT YOU HAVE SERVED CONTINUOUSLY ON ACTIVE DUTY IN THE JUDGE ADVOCATE GENERAL'S CORPS SINCE THAT DATE.

YOUR PURPORTEDLY WERE PROMOTED TO CAPTAIN IN THE JUDGE ADVOCATE GENERAL'S CORPS, UNITED STATES ARMY RESERVE, EFFECTIVE AUGUST 20, 1955, BY DEPARTMENT OF THE ARMY LETTER ORDERS DATED AUGUST 15, 1957, AS "CORRECTED" BY LETTER ORDERS DATED SEPTEMBER 16, 1960. THE LETTER ORDERS OF SEPTEMBER 16, 1960, ALSO PURPORTED TO AMEND PARAGRAPH 19 OF DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 162, DATED AUGUST 16, 1955, TO ORDER YOU TO ACTIVE DUTY AS A RESERVE COMMISSIONED OFFICER IN THE GRADE OF CAPTAIN (INSTEAD OF FIRST LIEUTENANT) EFFECTIVE SEPTEMBER 5, 1955.

THE ORDERS OF AUGUST 15, 1957, PROVIDED THAT, IF THEN ON ACTIVE DUTY IN A COMMISSIONED GRADE LOWER THAN THAT TO WHICH PROMOTED BY THOSE ORDERS, EFFECTIVE WITH THAT PROMOTION YOU WERE DEEMED TO HAVE ACCEPTED A TEMPORARY APPOINTMENT IN THE GRADE IN WHICH SERVING AND CONTEMPLATED THAT, IF YOUR REMAINED ON ACTIVE DUTY, YOU WOULD CONTINUE TO SERVE IN THAT LOWER GRADE. SEE SECTION 233, RESERVE OFFICER PERSONNEL ACT OF 1954, 68 STAT. 1164.

DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 156, DATED AUGUST 9, 1957, ANNOUNCED YOUR APPOINTMENT AND COMMISSION IN THE JUDGE ADVOCATE GENERAL'S CORPS, REGULAR ARMY OF THE UNITED STATES, IN THE GRADE OF FIRST LIEUTENANT, EFFECTIVE UPON ACCEPTANCE AND EXECUTION OF THE OATH OF OFFICE, WHICH, ACCORDING TO YOUR LETTER DATED APRIL 25, 1961, AND THE ARMY REGISTER, WAS EXECUTED AUGUST 28, 1957. THOSE ORDERS PROVIDED THAT ACCEPTANCE OF SUCH APPOINTMENT WOULD NOT AFFECT A HIGHER GRADE IN WHICH YOU MIGHT BE SERVING ON ACTIVE DUTY AT THE TIME OF ACCEPTANCE PROVIDED SUCH GRADE WAS CURRENTLY HELD IN THE ARMY OF THE UNITED STATES, BUT THAT IF SUCH GRADE WAS HELD IN ONE OF THE RESERVE COMPONENTS, YOU WERE APPOINTED AND COMMISSIONED IN THE ARMY OF THE UNITED STATES IN THE GRADE AND WITH DATE OF RANK AS THEN SERVING. DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 177, DATED SEPTEMBER 8, 1959, ANNOUNCED YOUR PROMOTION IN THE REGULAR ARMY OF THE UNITED STATES FROM FIRST LIEUTENANT TO CAPTAIN WITH RANK FROM SEPTEMBER 5, 1959. DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 219, DATED SEPTEMBER 28, 1960, ANNOUNCED YOUR TEMPORARY DATE OF RANK AND ARMY OF THE UNITED STATES PROMOTION ELIGIBILITY DATE AS SEPTEMBER 5, 1955, IN THE GRADE OF CAPTAIN.

IT IS YOUR CONTENTION THAT THE ORDERS OF AUGUST 15, 1957, AS "CORRECTED" BY THE ORDERS OF SEPTEMBER 16, 1960, WERE EFFECTIVE TO PROMOTE YOU TO THE GRADE OF CAPTAIN ON AUGUST 20, 1955, AND TO ORDER YOU TO ACTIVE DUTY IN THAT GRADE ON SEPTEMBER 5, 1955, AND THAT, THEREFORE, YOU WERE SERVING ON ACTIVE DUTY IN THE GRADE OF CAPTAIN, UNITED STATES ARMY RESERVE, ON AUGUST 28, 1957, WHEN YOU ACCEPTED THE APPOINTMENT TENDERED IN THE ORDERS OF AUGUST 9, 1957, AND EXECUTED THE OATH OF OFFICE. IT IS YOUR FURTHER CONTENTION THAT YOU WERE SERVING IN THE GRADE OF CAPTAIN ON AUGUST 28, 1957, AND CONTINUED TO SERVE IN THAT GRADE AFTER THAT DATE, SINCE UNDER THE ORDERS OF AUGUST 9, 1957, YOU WERE APPOINTED AND COMMISSIONED IN THE ARMY OF THE UNITED STATES IN THE GRADE IN WHICH THEN (AUGUST 28, 1957) SERVING. IT IS ON SUCH BASIS THAT YOU CLAIM THAT YOU SHOULD HAVE RECEIVED THE ACTIVE DUTY PAY AND ALLOWANCES OF A CAPTAIN, NOT ONLY FROM SEPTEMBER 5, 1955, TO AUGUST 27, 1957, BUT ALSO FROM AUGUST 28, 1957, TO SEPTEMBER 4, 1959.

NOTWITHSTANDING THE FACT THAT THE LETTER ORDERS OF AUGUST 15, 1957, AS "CORRECTED" BY THE LETTER ORDERS OF SEPTEMBER 16, 1960, PURPORTED TO PROMOTE YOU TO CAPTAIN AS OF AUGUST 20, 1955, AND TO CALL YOU TO ACTIVE DUTY IN THAT GRADE ON SEPTEMBER 5, 1955, IT APPEARS THAT YOU SERVED ON ACTIVE DUTY AS A FIRST LIEUTENANT FROM SEPTEMBER 5, 1955, TO SEPTEMBER 4, 1959. WE HAVE HELD GENERALLY THAT, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE, APPOINTMENTS OF MILITARY OFFICERS ARE NOT EFFECTIVE FOR PAY PURPOSES UNTIL MADE AND THAT RETROACTIVE ORDERS ARE WITHOUT EFFECT TO AUTHORIZE PAYMENT OF PAY AND ALLOWANCES OF THE HIGHER GRADE UNTIL THAT DATE. HENCE, WE FIND NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM AND THE SETTLEMENT OF APRIL 19, 1961, IS SUSTAINED.

UNDER CERTAIN CIRCUMSTANCES (10 U.S.C. 1552) THE SECRETARY OF THE ARMY, ACTING THROUGH THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, IS AUTHORIZED TO CORRECT A MILITARY RECORD OF THAT DEPARTMENT "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.' WHILE WE DO NOT DECIDE OR SUGGEST THAT THE FACTS IN YOUR CASE WARRANT A CORRECTION UNDER THAT AUTHORITY, IT IS CALLED TO YOUR ATTENTION FOR YOUR CONSIDERATION.