B-150254, JANUARY 4, 1963, 42 COMP. GEN. 340

B-150254: Jan 4, 1963

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WAS INEFFECTIVE TO CHANGE THE STATUS OF THE OFFICER AS A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES AND HE MAY NOT BE PAID THE DIFFERENCE IN THE PAY AND ALLOWANCES BETWEEN THE TWO GRADES FOR THAT PERIOD OF SERVICE. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. IT IS SHOWN IN YOUR LETTER AND THE PAPERS ACCOMPANYING THE VOUCHERS THAT CAPTAIN PLEHN WAS SERVING AS A FIRST LIEUTENANT IN THE 116TH FIGHTER INTERCEPTOR SQUADRON. WAS FEDERALLY RECOGNIZED AS A FIRST LIEUTENANT ON APRIL 1. IT APPEARS THAT HE WAS A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES. HIS NAME WAS SUBMITTED TO THE 1959 ROPA SELECTION BOARD FOR PROMOTION TO THE GRADE OF CAPTAIN. HE WAS NOT CONSIDERED FOR PROMOTION BECAUSE OF INSUFFICIENT RECORDS UPON WHICH AN EVALUATION COULD BE BASED.

B-150254, JANUARY 4, 1963, 42 COMP. GEN. 340

PAY - PROMOTIONS - RETROACTIVE - EFFECT ON NATIONAL GUARD SERVICE THE RETROACTIVE PROMOTION OF A FIRST LIEUTENANT IN THE AIR FORCE RESERVE UNDER 10 U.S.C. 8363 (F) TO THE GRADE OF CAPTAIN FOR A PERIOD THAT INCLUDED SERVICE IN THE AIR NATIONAL GUARD OF THE UNITED STATES BY REASON OF THE FEDERAL RECOGNITION OF THE AIR NATIONAL GUARD OF THE STATE OF WASHINGTON, 10 U.S.C. 101 (13), 8351 (A), WAS INEFFECTIVE TO CHANGE THE STATUS OF THE OFFICER AS A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES AND HE MAY NOT BE PAID THE DIFFERENCE IN THE PAY AND ALLOWANCES BETWEEN THE TWO GRADES FOR THAT PERIOD OF SERVICE, AND THE OFFICER NOT HAVING BEEN PROMOTED TO THE GRADE OF CAPTAIN IN THE WASHINGTON AIR NATIONAL GUARD BY THE GOVERNOR UNDER 10 U.S.C. 8379, AND NOT HAVING BEEN RECOGNIZED AS A CAPTAIN IN THE AIR NATIONAL GUARD OF THE UNITED STATES, HIS AIR FORCE RESERVE PROMOTION DID NOT AFFECT HIS RIGHT TO PAY FOR THE TRAINING ASSEMBLIES ATTENDED AS A MEMBER OF THE STATE AIR NATIONAL GUARD.

TO MAJOR L. G. HAMLETT, UNITED STATES AIR FORCE, JANUARY 4, 1963:

BY LETTER OF NOVEMBER 6, 1962, FILE AFAAF-3C, THE CHIEF, PAY AND TRAVEL DIVISION, DIRECTORATE OF ACCOUNTING AND FINANCE, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF AUGUST 28, 1962, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF EFFECTING PAYMENT OF THE DIFFERENCE IN PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND A CAPTAIN FOR THE PERIOD APRIL 1, 1959, THROUGH MARCH 30, 1960, AGGREGATING $1,050.42, ON TWO VOUCHERS STATED IN FAVOR OF CAPTAIN HERBERT P. PLEHN, AO 1911270, AIR FORCE RESERVE. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF-678 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS SHOWN IN YOUR LETTER AND THE PAPERS ACCOMPANYING THE VOUCHERS THAT CAPTAIN PLEHN WAS SERVING AS A FIRST LIEUTENANT IN THE 116TH FIGHTER INTERCEPTOR SQUADRON, WASHINGTON AIR NATIONAL GUARD, AND WAS FEDERALLY RECOGNIZED AS A FIRST LIEUTENANT ON APRIL 1, 1959. HENCE, IT APPEARS THAT HE WAS A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES. SEE 10 U.S.C. 101 (13), 8351 (A). SINCE HE HAD A PROMOTION SERVICE DATE OF JULY 1, 1955, HIS NAME WAS SUBMITTED TO THE 1959 ROPA SELECTION BOARD FOR PROMOTION TO THE GRADE OF CAPTAIN, BUT HE WAS NOT CONSIDERED FOR PROMOTION BECAUSE OF INSUFFICIENT RECORDS UPON WHICH AN EVALUATION COULD BE BASED. HE TERMINATED HIS SERVICE WITH THE AIR NATIONAL GUARD EFFECTIVE MARCH 31, 1960, AND THEREAFTER SERVED IN THE CAPACITY OF AN OFFICER IN THE AIR FORCE RESERVE. ALMOST A YEAR LATER, THAT IS, ON MARCH 7, 1961, RESERVE ORDERS NUMBER E-1950, HEADQUARTERS AIR RESERVE RECORDS CENTER (CONAC), UNITED STATES AIR FORCE, DENVER,COLORADO, WERE ISSUED ANNOUNCING THE RETROACTIVE PROMOTION OF THE OFFICER TO THE GRADE OF CAPTAIN IN THE AIR FORCE RESERVE EFFECTIVE SEPTEMBER 15, 1957.

IN YOUR LETTER YOU INDICATE THAT IT IS QUESTIONABLE WHETHER THE PROVISIONS OF 10 U.S.C. 8363 (F), RELATING TO RETROACTIVE PROMOTIONS OF RESERVE OFFICERS UNDER CHAPTER 837 OF TITLE 10, U.S. CODE, ARE FOR APPLICATION HERE, SINCE THAT CHAPTER REQUIRES THE APPOINTMENT OF AIR NATIONAL GUARD OFFICERS TO A HIGHER GRADE VACANCY WITHIN THE AIR NATIONAL GUARD AT THE TIME OF PROMOTION OR IMMEDIATE TRANSFER TO THE AIR FORCE RESERVE AND THOSE REQUIREMENTS WERE NOT ACCOMPLISHED IN THIS CASE. ACCORDINGLY, YOU HAVE PRESENTED THE FOLLOWING QUESTIONS:

A. IS THIS OFFICER ENTITLED TO THE DIFFERENCE OF PAY AND ALLOWANCES BETWEEN FIRST LIEUTENANT AND CAPTAIN FOR TRAINING ASSEMBLIES DURING THE PERIOD 1 APRIL 1959 THROUGH 30 MARCH 1960?

B. IS THE OFFICER ENTITLED TO THE DIFFERENCE BETWEEN FIRST LIEUTENANT AND CAPTAIN FOR PERIODS OF ACTIVE FEDERAL SERVICE DURING THE SAME PERIOD?

IT APPEARS THAT ALL OF CAPTAIN PLEHN'S ACTIVE FEDERAL SERVICE DUTIES DURING THE PERIOD APRIL 1, 1959, THROUGH MARCH 30, 1960, WERE PERFORMED BY HIM IN HIS THEN STATUS AS A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES. HIS PROMOTION TO THE GRADE OF CAPTAIN WAS IN THE AIR FORCE RESERVE. SUCH PROMOTION DID NOT AFFECT HIS RIGHT TO THE PAY AND ALLOWANCES EARNED AS A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES. SIMILARLY, SINCE HE WAS NOT PROMOTED TO THE GRADE OF CAPTAIN IN THE AIR NATIONAL GUARD OF THE STATE OF WASHINGTON BY THE GOVERNOR OF THAT STATE (10 U.S.C. 8379) AND WAS NOT FEDERALLY RECOGNIZED AS AN AIR NATIONAL GUARD CAPTAIN, HIS AIR FORCE RESERVE PROMOTION COULD NOT AFFECT HIS RIGHT TO PAY FOR THE TRAINING ASSEMBLIES ATTENDED BY HIM AS A MEMBER OF THE AIR NATIONAL GUARD OF THE STATE OF WASHINGTON. SEE, ALSO, B-143510, SEPTEMBER 28, 1960, COPY ENCLOSED, HOLDING THAT A RETROACTIVE PROMOTION UNDER THE PROVISIONS OF LAW FROM WHICH 10 U.S.C. 8363 (F) WAS DERIVED, IS INEFFECTIVE FOR PURPOSES OF INCREASED PAY AND ALLOWANCES.

YOUR QUESTIONS ARE ANSWERED IN THE NEGATIVE.

IT APPEARING THAT PAYMENT ON THE VOUCHERS SUBMITTED WITH YOUR LETTER IS NOT AUTHORIZED, SUCH VOUCHERS AND SUPPORTING PAPERS WILL BE RETAINED HERE.