B-148987, JUL. 13, 1962

B-148987: Jul 13, 1962

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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO THE MEMORANDUM OF OCTOBER 25. THAT HIS PROMOTION LIST SERVICE DATE IS 26 AUGUST 1938. IS 10 NOVEMBER 1956. HE WAS PAID THE SUM OF $2. HIS RIGHTS THEREUNDER ARE DETERMINED UNDER APPLICABLE LAW IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS. PROMOTIONS IN THE REGULAR AIR FORCE ARE GOVERNED BY CHAPTER 835 OF TITLE 10. WHICH WAS ENACTED INTO POSITIVE LAW ON AUGUST 10. WAS IN EFFECT ON THE DATE OF RANK SPECIFIED IN THE OFFICER'S CORRECTED RECORD. IS THAT STATED IN HIS COMMISSION OR LETTER OF APPOINTMENT. IS HIS DATE OF APPOINTMENT IN THAT GRADE. WHILE IT PROVIDES THAT THE DATE OF RANK OF A BRIGADIER GENERAL IS ORDINARILY THE DATE OF APPOINTMENT (WHICH WOULD COINCIDE WITH HIS PAY IN THAT GRADE).

B-148987, JUL. 13, 1962

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO THE MEMORANDUM OF OCTOBER 25, 1960, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE TO THE CHIEF OF STAFF DIRECTING, UNDER AUTHORITY OF 10 U.S.C. 1552, THAT ALL NECESSARY AND APPROPRIATE ACTION BE TAKEN TO CORRECT THE MILITARY RECORDS OF HENRY F. MLOTKOWSKI, 10 973A, TO SHOW:

"A. THAT HIS PROMOTION LIST SERVICE DATE IS 26 AUGUST 1938;

"B. THAT HIS DATE OF RANK AS PERMANENT LIEUTENANT COLONEL, REGULAR AIR FORCE, IS 10 NOVEMBER 1956;

"C. THAT HIS NAME BE PLACED ON THE PERMANENT LIEUTENANT COLONEL PROMOTION LIST NEXT BELOW THE NAME OF CLARK, JOSEPH J. F., 12 525A.'

COLONEL MLOTKOWSKI HAD BEEN PAID AS A LIEUTENANT COLONEL ON AND AFTER MARCH 16, 1959, BASED ON A TEMPORARY PROMOTION EFFECTIVE THAT DATE. AS A RESULT OF THE CORRECTION OF RECORDS SHOWN ABOVE, HE WAS PAID THE SUM OF $2,022.38 LESS WITHHOLDING TAX, NET PAYMENT $1,745.15, REPRESENTING THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THE GRADES OF LIEUTENANT COLONEL AND MAJOR FOR THE PERIOD NOVEMBER 10, 1956, TO MARCH 15, 1959, WHICH OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS QUESTIONED.

UPON CORRECTION OF A MEMBER'S RECORDS UNDER 10 U.S.C. 1552, THE MEMBER BECOMES ENTITLED TO ALL THE BENEFITS FLOWING FROM THAT CORRECTION. HIS RIGHTS THEREUNDER ARE DETERMINED UNDER APPLICABLE LAW IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS. SEE 40 COMP. GEN. 502.

PROMOTIONS IN THE REGULAR AIR FORCE ARE GOVERNED BY CHAPTER 835 OF TITLE 10, U.S. CODE, WHICH WAS ENACTED INTO POSITIVE LAW ON AUGUST 10, 1956, BY PUBLIC LAW 1028, 84TH CONGRESS, AND WAS IN EFFECT ON THE DATE OF RANK SPECIFIED IN THE OFFICER'S CORRECTED RECORD. THE OFFICER HAD BEEN SERVING AS A LIEUTENANT COLONEL UNDER A TEMPORARY APPOINTMENT AND RECEIVING THE PAY OF THAT GRADE SINCE MARCH 16, 1959.

THE TERM "DATE OF RANK" HAS A SPECIFIC TECHNICAL MEANING WITH REFERENCE TO MILITARY OFFICERS, AS SHOWN IN CHAPTER 845 OF TITLE 10, U.S.C. SECTION 8571, RELATIVE TO RANK OF COMMISSIONED OFFICERS ON ACTIVE DUTY, PROVIDES, IN PART, AS FOLLOWS:

"/A) COMMISSIONED OFFICERS OF THE AIR FORCE ON ACTIVE DUTY IN THE SAME GRADE RANK AMONG THEMSELVES ACCORDING TO DATE OF RANK. THE DATE OF RANK--

"/1) FOR AN OFFICER OF THE REGULAR AIR FORCE SERVING IN HIS REGULAR GRADE, IS THAT STATED IN HIS COMMISSION OR LETTER OF APPOINTMENT;

"/2) FOR AN OFFICER OF THE REGULAR AIR FORCE SERVING IN A TEMPORARY GRADE, IS HIS DATE OF APPOINTMENT IN THAT GRADE, UNLESS ADJUSTED UNDER SECTION 8572 OF THIS TITLE; * * *.'

SECTION 8572 AUTHORIZES THE PRESIDENT, IN ACCORDANCE WITH THE NEEDS OF THE AIR FORCE, TO ADJUST DATES OF RANK OF COMMISSIONED OFFICERS SERVING IN TEMPORARY GRADES. HOWEVER, THIS SECTION INCLUDES NO AUTHORIZATION FOR ADJUSTMENT IN DATE OF GRADE FOR PAY PURPOSES. SECTION 8573 SPECIFIES THE DATES OF RANK FOR GENERAL OFFICERS, AND, WHILE IT PROVIDES THAT THE DATE OF RANK OF A BRIGADIER GENERAL IS ORDINARILY THE DATE OF APPOINTMENT (WHICH WOULD COINCIDE WITH HIS PAY IN THAT GRADE), THE DATE OF RANK OF A MAJOR GENERAL IS THE DATE OF RANK WHICH HE HELD IN THE GRADE OF BRIGADIER GENERAL AT THE TIME OF APPOINTMENT IN THE REGULAR GRADE OF MAJOR GENERAL. IN PARAGRAPH 8308 OF CHAPTER 835 IT IS PROVIDED THAT AN OFFICER WHO, AFTER HAVING BEEN RECOMMENDED FOR PROMOTION BY A SELECTION BOARD, IS REMOVED FROM THE LIST EITHER BY THE PRESIDENT OR BY FAILURE TO RECEIVE SENATE CONFIRMATION, STILL CONTINUES TO BE ELIGIBLE FOR PROMOTION AND, IF PROMOTED ON THE RECOMMENDATION OF THE SECOND SELECTION BOARD, HE SHALL HAVE THE SAME DATE OF RANK AND PLACE ON THE PROMOTION LIST THAT HE WOULD HAVE HAD IF THE PROMOTION HAD BEEN ACCOMPLISHED AS A RESULT OF THE ORIGINAL SELECTION. HOWEVER, THERE IS NO AUTHORIZATION FOR PAYMENT OF PAY AND ALLOWANCES AT THE HIGHER RATE PRIOR TO THE DATE THE PROMOTION ACTUALLY IS EFFECTED.

PARAGRAPH (A), 10 U.S.C. 8312, PROVIDES AS FOLLOWS:

"/A) AN OFFICER WHO IS PROMOTED IN THE REGULAR AIR FORCE IS CONSIDERED TO HAVE ACCEPTED HIS PROMOTION ON THE DATE OF THE ORDER ANNOUNCING IT, UNLESS HE EXPRESSLY DECLINES THE PROMOTION. HE IS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THAT DATE, UNLESS ENTITLED TO THEM FROM AN EARLIER DATE UNDER ANOTHER PROVISION OF LAW.'

COLONEL MLOTKOWSKI'S RECORDS WERE NOT CORRECTED TO SHOW A NEW DATE FOR THE ORDER ANNOUNCING HIS PROMOTION TO THE GRADE OF LIEUTENANT COLONEL OR DATE OF ACCEPTANCE. IN ORDER FOR HIM TO BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM DATE OF RANK AS "AN EARLIER DATE UNDER ANOTHER PROVISION OF LAW," SUCH OTHER PROVISION OF LAW WOULD HAVE TO SPECIFY ENTITLEMENT TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE "DATE OF RANK.' NO SUCH PROVISION OF LAW HAS BEEN CITED. THE ESTABLISHMENT OF A DATE OF RANK BY A CORRECTION OF RECORDS UNDER 10 U.S.C. 1552 CAN HAVE NO MORE FAR REACHING EFFECTS THAN IF THAT DATE OF RANK HAD BEEN ESTABLISHED ORIGINALLY BY THE ADMINISTRATIVE OFFICE.

IT APPEARS THAT COLONEL MLOTKOWSKI HAD BEEN PROMOTED TO, AND WAS SERVING IN, THE PERMANENT GRADE OF LIEUTENANT COLONEL AT THE TIME HE APPEARED BEFORE THE BOARD FOR CORRECTION OF MILITARY RECORDS. THE AIR FORCE REGISTER, DATED JANUARY 1, 1960, SHOWS HIM SERVING IN BOTH THE PERMANENT AND TEMPORARY GRADES OF LIEUTENANT COLONEL WITH DATE OF PERMANENT GRADE JULY 1, 1959. HE IS LISTED AS NO. 5252 ON THE PROMOTION LIST OF PERMANENT LIEUTENANT COLONELS. JOSEPH J. F. CLARK'S PROMOTION LIST NUMBER IS 2338. PARAGRAPH (E) OF 10 U.S.C. 8296 PROVIDES AS FOLLOWS:

"UNLESS SPECIFICALLY PROVIDED OTHERWISE, UPON THE PROMOTION OF A PROMOTION-LIST OFFICER, HIS NAME SHALL BE PLACED AT THE FOOT OF THE LIST OF OFFICERS OF HIS GRADE.'

THE CORRECTION OF COLONEL MLOTKOWSKI'S RECORDS CAUSED HIM TO BE ADVANCED OVER APPROXIMATELY 2,914 OFFICERS ON THE PROMOTION LIST. THE 1961 REGISTER, PREPARED AFTER THE CORRECTION OF RECORDS IN THIS CASE, SHOWS JOSEPH J. F. CLARK AS NO. 2018 AND HENRY F. MLOTKOWSKI AS NO. 2019 ON THE PROMOTION LIST OF PERMANENT LIEUTENANT COLONELS.

PARAGRAPH (D) OF 10 U.S.C. 8299 PROVIDES, AS FOLLOWS:

"/D) THE NAMES OF PROMOTION-LIST OFFICERS RECOMMENDED FOR PROMOTION UNDER THIS SECTION AND SECTION 8301 OF THIS TITLE SHALL BE CARRIED ON PERMANENT RECOMMENDED LISTS OF THEIR GRADE AND PROMOTION LIST IN THE SAME ORDER AMONG THEMSELVES AS ON THE APPLICABLE PROMOTION LIST, AND THEY SHALL BE PROMOTED IN THAT ORDER. A PROMOTION MAY BE MADE WHENEVER THERE IS A VACANCY, BUT IT IS NOT MANDATORY THAT THE AUTHORIZED NUMBERS BE MAINTAINED IN ANY GRADE ON ANY PROMOTION LIST.'

IT SEEMS CLEAR THAT THE PURPOSE OF CORRECTING COLONEL MLOTKOWSKI'S RECORDS WAS TO PLACE HIS NAME ON THE PROMOTION LIST OF LIEUTENANT COLONELS IN THE PROPER ORDER, AS NEAR THE TOP OF THE LIST AS IT WOULD HAVE BEEN HAD HE ORIGINALLY BEEN CREDITED WITH THE SERVICE WHICH NOW RESULTS IN ESTABLISHING HIS PROMOTION LIST SERVICE DATE AS AUGUST 26, 1938, AND TO INSURE THAT HE WILL BE CONSIDERED FOR PROMOTION TO THE GRADE OF COLONEL IN THAT ORDER. IN OTHER WORDS, IF HE SHOULD BE RECOMMENDED BY A SELECTION BOARD FOR PROMOTION TO THE GRADE OF COLONEL, HIS PROMOTION TO THAT GRADE WILL BE EFFECTED AHEAD OF 2,914 OFFICERS WHO, EXCEPT FOR HIS CORRECTION OF RECORDS, WOULD HAVE BEEN CONSIDERED FOR PROMOTION BEFORE HIM.

THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF DARBY V. UNITED STATES, CT.CL.NO. 189-58, DECIDED JUNE 3, 1959, IS NOT REGARDED AS AUTHORITY FOR THE PAYMENT MADE IN THIS CASE. NO STATUTORY PROVISIONS SIMILAR TO THOSE CITED ABOVE WERE CONSIDERED BY THE COURT IN REACHING ITS DECISION IN THAT CASE. THE COURT STATED PARENTHETICALLY--- WITH RESPECT TO THE CHANGE OF DATES OF RANK THERE EFFECTED "FOR ALL PURPOSES"--- THAT "TO GIVE PLAINTIFF THE BENEFIT OF THE CHANGE IN DATES OF RANK, IT WAS NOT NECESSARY TO SAY "FOR ALL PURPOSES" " IN ORDER TO GIVE HIM INCREASED PAY FROM THE CHANGED DATE OF RANK. HOWEVER, THE ACTUAL HOLDING IN THAT CASE WAS THAT "WE READ ,FOR ALL PURPOSES" TO MEAN EVERYTHING NECESSARY TO PLACE PLAINTIFF IN THE SAME POSITION AS HIS FELLOW OFFICERS AND NOT TO MEAN "FOR ALL PURPOSES" EXCEPT PAY AND ALLOWANCES," AND THAT " "ALL" COULD ONLY MEAN EVERYTHING.' THE COURT WAS CLEARLY INFLUENCED BY THE PHRASE "FOR ALL PURPOSES.' IF A CORRECTION SUCH AS IS HERE INVOLVED HAD BEEN MADE IN THAT CASE AND LAWS IN EFFECT AT THAT TIME HAD WARRANTED A CONCLUSION BY THE COURT THAT THE DATE OF RANK DID NOT AFFECT A MEMBER'S RIGHT TO PAY AND ALLOWANCES UNLESS IT COINCIDED WITH THE EFFECTIVE DATE OF HIS PROMOTION, WE DOUBT THAT THE DECISION IN THAT CASE WOULD HAVE BEEN IN THE PLAINTIFF'S FAVOR.

THE ABOVE CITED PROVISIONS OF LAW, AS WELL AS PARAGRAPH 20209 (B), AIR FORCE MANUAL 177-105, RECOGNIZE THAT A DATE OF RANK MAY BE FIXED ADMINISTRATIVELY AS OF A DIFFERENT DATE THAN THE EFFECTIVE DATE OF A PROMOTION FOR PAY PURPOSES. CORRECTION ACTION IN THE PRESENT CASE COULD HAVE AFFECTED BOTH DATES. HOWEVER, THE ASSISTANT SECRETARY'S MEMORANDUM OF OCTOBER 25, 1960, CONTAINS NO EVIDENCE OF AN INTENT TO CHANGE THE EFFECTIVE DATE OF COLONEL MLOTKOWSKI'S PROMOTION TO THE GRADE OF LIEUTENANT COLONEL. FIRST INDORSEMENT OF JANUARY 19, 1962, FROM THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER, STATES THAT IT WAS NOT THE INTENT OF THE BOARD THAT THE CORRECTION ACTION AUTHORIZE PAYMENT OF ADDITIONAL PAY AND ALLOWANCES TO COLONEL MLOTKOWSKI.

SINCE THE APPROVED RECOMMENDATIONS OF THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS DID NOT INCLUDE A CHANGE IN THE DATE ON WHICH COLONEL MLOTKOWSKI WAS PROMOTED TO THE GRADE OF LIEUTENANT COLONEL BUT CHANGED ONLY HIS RELATIVE POSITION ON THE PERMANENT LIEUTENANT COLONEL PROMOTION LIST, SUCH CORRECTION OF RECORDS AFFORDED NO BASIS FOR PAYMENT TO HIM OF THE ADJUSTMENT IN QUESTION.