B-150439, JAN. 21, 1963

B-150439, JAN. 21, 1963

TO MR. JOSEPH R. DEWAR:

REFERENCE IS MADE TO LETTERS OF OCTOBER 25 AND NOVEMBER 15, 1962, WRITTEN ON YOUR BEHALF BY MORRISON SHAFROTH, ATTORNEY AT LAW, AND FORWARDED HERE BY THE DEPARTMENT OF THE ARMY FOR OUR CONSIDERATION, CONCERNING YOUR CLAIM FOR ADDITIONAL PAY INCIDENT TO YOUR SERVICE IN WORLD WAR I AS AN OFFICER IN THE UNITED STATES ARMY. THE LETTERS WILL BE TREATED AS A REQUEST FOR REVIEW OF THE DISALLOWANCE OF YOUR CLAIM BY GENERAL ACCOUNTING OFFICE CERTIFICATE NO. 794613, DATED OCTOBER 13, 1921, OF WHICH YOU WERE ADVISED OCTOBER 19, 1921. AT YOUR REQUEST, YOUR CLAIM WAS REVIEWED AND THE DISALLOWANCE WAS SUSTAINED BY OUR REVIEW NO. 417, DATED DECEMBER 13, 1921, A COPY OF WHICH IS ENCLOSED.

AS STATED IN THE ENCLOSURE, YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN FIRST LIEUTENANT AND CAPTAIN FROM SEPTEMBER 26, 1918, TO AUGUST 17, 1919, FOR EXERCISING COMMAND ABOVE THAT PERTAINING TO YOUR GRADE AS FIRST LIEUTENANT, HEADQUARTERS COMPANY, 816TH PIONEER INFANTRY, WAS DISALLOWED BY CERTIFICATE NO. 794613, DATED OCTOBER 13, 1921, FOR THE REASON THAT THE RECORDS SHOWED THAT YOU WERE NOT EXERCISING A COMMAND ABOVE THAT PERTAINING TO YOUR GRADE WITHIN THE MEANING OF THE ACT OF APRIL 26, 1898. THE RECORDS BEFORE THIS OFFICE IN 1921 WHEN YOUR CLAIM WAS DISALLOWED SHOWED THAT YOU EXERCISED COMMAND BY REASON OF SENIORITY. BY YOUR CURRENT REQUEST FOR REVIEW, MORE THAN 40 YEARS AFTER THE DISALLOWANCE OF YOUR CLAIM BY OUR OFFICE, YOU CITE THE CASE OF UNITED STATES V. FERRIS, 265 U.S. 165, DECIDED MAY 26, 1924, AS POSSIBLY BEING A BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN FIRST LIEUTENANT AND CAPTAIN DURING THE PERIOD CLAIMED.

YOUR CLAIM IS BASED ON SECTION 7 OF THE ACT OF APRIL 26, 1898, 30 STAT. 365, WHICH PROVIDES, IN PART, AS FOLLOWS:

"THAT IN TIME OF WAR EVERY OFFICER SERVING WITH TROOPS 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 * * *.'

IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED A CERTIFICATE FROM COLONEL L. A. I. CHAPMAN, COMMANDING OFFICER, HEADQUARTERS, 816TH PIONEER INFANTRY, VERDUN, FRANCE, APO 914, AEF, DATED MARCH 31, 1919, IN WHICH IT IS STATED THAT ON SEPTEMBER 26, 1918, BY COLONEL CHAPMAN'S ORDER, YOU WERE ASSIGNED TO HEADQUARTERS COMPANY AS COMPANY COMMANDER. IT IS FURTHER STATED THAT THIS ASSIGNMENT WAS NECESSARY AS THERE WERE NO AVAILABLE CAPTAINS IN THE REGIMENT TO FILL THIS ASSIGNMENT AND THAT YOU PERFORMED THE DUTIES OF COMMANDING OFFICER OF HEADQUARTERS COMPANY FROM SEPTEMBER 26, 1918, TO MARCH 31, 1919. YOU HAVE ALSO SUBMITTED A COPY OF SPECIAL ORDER NO. 11, DATED SEPTEMBER 26, 1918, ISSUED BY HEADQUARTERS, 816TH PIONEER INFANTRY, CAMP FUNSTON, KANSAS, ANNOUNCING YOUR ASSIGNMENT TO HEADQUARTERS COMPANY AS A FIRST LIEUTENANT. OTHER PAPERS SUBMITTED IN SUPPORT OF YOUR CLAIM INDICATE THAT YOU LATER SERVED WITH THIS ORGANIZATION IN FRANCE. HOWEVER, THE DATE YOU DEPARTED FROM THE UNITED STATES FOR OVERSEAS DUTY IS NOT SHOWN IN THE RECORD PRESENTLY BEFORE US.APPARENTLY, IN VIEW OF YOUR SERVICE AS COMPANY COMMANDER AND ON THE BASIS OF THE FERRIS CASE, YOU BELIEVE THAT YOUR CLAIM IS FOR ALLOWANCE.

THE UNITED STATES SUPREME COURT IN THE CASE OF UNITED STATES V. FERRIS, 265 U.S. 165, DECIDED MAY 26, 1924, HELD THAT TROOPS IN INSTRUCTION CAMPS IN THIS COUNTRY WERE NOT OPERATING AGAINST AN ENEMY WITHIN THE CONTEMPLATION OF THE ACT OF APRIL 26, 1898, IT BEING STATED IN THAT DECISION:

"WE AGREE WITH THE OPINION OF THE PAYMASTER GENERAL IN 1898IN THIS MATTER. HE SAID:

" "* * * THERE IS, WITHIN OUR BORDERS, NO ENEMY, WITHIN THE MEANING

" , * * * THERE IS, WITHIN OUR BORDERS, NO ENEMY, WITHIN THE MEANING OF THE LAW, FOR TROOPS TO OPERATE AGAINST. AN ARMY HAS BEEN CALLED TOGETHER, AND IS BEING DRILLED, DISCIPLINED, AND PREPARED TO OPERATE AGAINST AN ENEMY, BUT UNTIL THAT ARMY EMBARKS FOR A FOREIGN COUNTRY, OR UNTIL AN ENEMY APPEARS ON OUR SHORES, AND THE ARMY CONFRONTS IT, IT IS HELD THAT NO OFFICER CAN RECEIVE THE PAY OF A HIGHER GRADE BY VIRTUE OF ANYTHING IN THE ACT REFERRED TO.'"

IN THIS RESPECT, THE 119TH ARTICLE OF WAR IN EFFECT DURING WORLD WAR I, PROVIDED, AS FOLLOWS:

"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.'

IT WAS HELD BY THE COURT OF CLAIMS IN THE CASE OF KINSOLVING V. UNITED STATES, 63 CT.CL. 79, THAT, IN VIEW OF SUCH PROVISIONS, THE TERM "COMPETENT AUTHORITY" AS USED IN THE ACT OF APRIL 26, 1898, HAS REFERENCE TO THE PRESIDENT AND, WHERE THE ORDERS ARE NOT ISSUED BY THE PRESIDENT, OR BY HIS DIRECTION, ADDITIONAL PAY FOR EXERCISING A HIGHER COMMAND IS NOT AUTHORIZED. SEE, ALSO, 34 COMP. GEN. 202, 203. NO SUCH ORDERS ISSUED BY COMPETENT AUTHORITY, THAT IS, BY THE PRESIDENT OR BY HIS DIRECTION, ARE OF RECORD IN YOUR CASE.

THE COURT OF CLAIMS DECIDED IN THE CASE OF STUART D. CAMPBELL V. UNITED STATES, 63 CT.CL. 133, THAT UPON THE SIGNING OF THE ARMISTICE ON NOVEMBER 11, 1918, THERE WAS NO ENEMY TO OPERATE AGAINST WITHIN THE MEANING OF THE ACT OF APRIL 26, 1898, PROVIDING FOR INCREASE OF PAY TO OFFICERS EXERCISING A HIGHER COMMAND, AND EVEN IF YOUR CLAIM WERE OTHERWISE ALLOWABLE, THIS CASE WOULD REQUIRE DISALLOWANCE FOR THE PERIOD OF THE SERVICE CLAIMED FROM NOVEMBER 11, 1918, TO AUGUST 17, 1919. THE FERRIS CASE WOULD REQUIRE DISALLOWANCE FOR THE PERIOD FROM SEPTEMBER 26, 1918, UNTIL THE DATE YOU DEPARTED FOR OVERSEAS SERVICE. AS STATED ABOVE, THAT DATE IS NOT SHOWN IN THE PRESENT RECORD.

WITH RESPECT TO THE PERIOD FROM SEPTEMBER 26, 1918, TO NOVEMBER 11, 1918, IT WILL BE NOTED THAT IN REVIEW NO. 417 DATED DECEMBER 13, 1921, IT WAS STATED THAT THE ADJUTANT GENERAL OF THE ARMY HAD REPORTED THAT:

"THE RECORDS OF THIS OFFICE SHOW THAT 1ST LIEUT. JOSEPH E. DEWAR, INFANTRY, ASSUMED COMMAND OF HEADQUARTERS COMPANY, 816TH PIONEER INFANTRY, SEPTEMBER 9, 1918, BY REASON OF SENIORITY, * * *.'

IN A COPY OF A LETTER DATED OCTOBER 30, 1921, ADDRESSED TO HONORABLE S. D. NICKLESON, UNITED STATES SENATE, YOU STATED THAT YOU WERE NOT THE SENIOR LIEUTENANT IN YOUR ORGANIZATION AND CONSEQUENTLY THE COMMAND OF THE COMPANY DID NOT DEVOLVE UPON YOU BY REASON OF SENIORITY. YOU ARE ADVISED, HOWEVER, THAT THE ADJUTANT GENERAL OF THE ARMY IS THE OFFICIAL CUSTODIAN OF THE RECORDS OF THE MEMBERS OF THE ARMY AND IN THE SETTLEMENT OF CLAIMS OF THIS NATURE WE NECESSARILY MUST RELY UPON THE RECORDS OF A MEMBER'S SERVICE AS REPORTED BY THAT OFFICIAL. THE SUPREME COURT OF THE UNITED STATES HELD IN THE CASE OF UNITED STATES V. MITCHELL, 205 U.S. 161, THAT A SECOND LIEUTENANT OF THE UNITED STATES ARMY WHO IN THE ABSENCE OF THE CAPTAIN AND FIRST LIEUTENANT EXERCISES COMMAND OF THE COMPANY IN REGULAR COURSE UNDER THE PROVISIONS OF THE ARMY REGULATIONS, IS NOT EXERCISING UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY, A COMMAND ABOVE THAT APPERTAINING TO HIS GRADE WITHIN THE MEANING OF THE ACT OF APRIL 26, 1898, EVEN THOUGH A REGIMENTAL SPECIAL ORDER MAY ISSUE DIRECTING HIM TO ASSUME THE COMMAND. IN VIEW OF THE REPORT OF THE ADJUTANT GENERAL THAT YOU EXERCISED COMMAND BY REASON OF SENIORITY, THE MITCHELL CASE WOULD PRECLUDE ALLOWANCE FOR ANY PERIOD THAT IS NOT OTHERWISE PRECLUDED BY THE CITED DECISIONS.

ACCORDINGLY, ON THE BASIS OF THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM IS AGAIN SUSTAINED.