B-151202, NOV. 16, 1964

B-151202, NOV. 16, 1964

TO MR. EDWARD L. NIEDRINEHAUS:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 27 AND SEPTEMBER 26, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 21, 1964, WHICH DISALLOWED YOUR CLAIM FOR DIFFERENCE IN PAY BETWEEN THAT OF AN ENLISTED MAN AND AN OFFICER, WHILE ON ACTIVE DUTY AS A MEMBER OF THE ARMY OF THE UNITED STATES FROM MARCH 26, 1962, TO MARCH 25, 1964.

THE RECORD SHOWS THAT YOU ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT IN THE UNITED STATES ARMY RESERVE ON MAY 31, 1959, AND THAT YOU WERE ON ACTIVE DUTY IN THAT CAPACITY FROM SEPTEMBER 1, 1959, TO FEBRUARY 29, 1960. WHILE IN AN INACTIVE DUTY STATUS, YOU WERE ASSIGNED BY PARAGRAPH 30, SPECIAL ORDERS NO. 88, HEADQUARTERS, XI UNITED STATES ARMY CORPS, ST. LOUIS, MISSOURI, DATED APRIL 18, 1960, TO COMBAT SUPPORT COMPANY, 3D BATTLE GROUP, 4TH INFANTRY, CENTRALIA, ILLINOIS, EFFECTIVE APRIL 27, 1960, AND WERE ATTACHED FOR INACTIVE TRAINING DUTY ONLY TO HEADQUARTERS AND HEADQUARTERS COMPANY, 327TH ENGINEER BATTALION, ST. LOUIS, MISSOURI. LETTER TO YOU FROM COMBAT SUPPORT COMPANY, 3D BATTLE GROUP, 4TH INFANTRY, CENTRALIA, ILLINOIS, DATED OCTOBER 31, 1960, STATED THAT YOU HAD VIOLATED THE PROVISIONS OF SECTION 208F, RESERVE FORCES ACT OF 1955 (69 STAT. 598, 50 U.S.C. 928/F), SUPP. III, 1952 ED.--- PRESENTLY 10 U.S.C. 270), IN THAT YOU HAD NOT BEEN ATTENDING ANY SCHEDULED DRILLS SINCE THE DATE OF ASSIGNMENT TO THAT UNIT AND THAT THERE WAS NO EVIDENCE THAT YOU WERE PROPERLY EXCUSED. YOU WERE REQUESTED TO ATTEND THE NEXT SCHEDULED DRILL ON NOVEMBER 7, 1960, AT THAT ADDRESS, OR IF YOU COULD NOT BE PRESENT TO COMPLETE AND RETURN AN ENCLOSED QUESTIONNAIRE AS INSTRUCTED. YOU WERE FURTHER ADVISED THAT FAILURE TO COMPLY WITH THE REQUEST WOULD RESULT IN YOUR BEING INVOLUNTARILY RECALLED TO ACTIVE DUTY FOR TRAINING FOR 45 DAYS UNDER PROVISIONS OF THE RESERVE FORCES ACT OF 1955. IT IS YOUR CONTENTION THAT THAT LETTER WAS FRAUDULENT AND THAT THE LETTER YOU ACTUALLY RECEIVED WAS AN UNDATED MEMORANDUM TO YOU WHICH STATED THAT THE RECORD OF YOUR ATTENDANCE AT MEETINGS WITH THE ENGINEER UNIT HAD NOT BEEN RECEIVED AND IT WAS NOT KNOWN WHETHER YOU ATTENDED SUMMER CAMP, AND WHICH REQUESTED YOUR ADVICE IN THE MATTER. IT STATED FURTHER THAT IF SUCH RECORDS WERE NOT RECEIVED WITHIN 30 DAYS, STEPS WOULD BE TAKEN TO PROCESS YOU FOR 45 DAYS OF ACTIVE DUTY. THE RECORD SHOWS FURTHER THAT YOU ACTIVELY PARTICIPATED IN SCHEDULED DRILLS WITH HEADQUARTERS AND HEADQUARTERS COMPANY, 327TH ENGINEER BATTALION, ON JANUARY 22, FEBRUARY 14 AND 19, AND MARCH 7 AND 14, 1961. BY LETTER DATED MARCH 6, 1961, FROM HEADQUARTERS FIFTH UNITED STATES ARMY, CHICAGO, ILLINOIS, YOU WERE NOTIFIED THAT BY DIRECTION OF THE PRESIDENT, YOU WERE HONORABLY DISCHARGED FROM YOUR APPOINTMENT AS A RESERVE COMMISSIONED OFFICER OF THE ARMY, EFFECTIVE THAT DATE. THE LETTER STATED THE ACTION WAS TAKEN UNDER THE PROVISIONS OF PARAGRAPH 6B/38), ARMY REGULATIONS 140-175. THIS LETTER, TOGETHER WITH SPECIAL ORDERS NO. 52, ISSUED MARCH 16, 1961, BY HEADQUARTERS, XI UNITED STATES ARMY CORPS, ST. LOUIS, MISSOURI, WHICH PROVIDES IN PARAGRAPH 12 FOR YOUR DISCHARGE FROM YOUR COMMISSION IN THE UNITED STATES ARMY RESERVE AND RELEASE FROM ASSIGNMENT WITH COMBAT SUPPORT COMPANY, EFFECTIVE MARCH 6, 1961, WAS FORWARDED TO YOU SUBSEQUENT TO MARCH 14, 1961, THE DATE YOU PERFORMED YOUR LAST DRILL. THE RECORD SHOWS FURTHER THAT ON MARCH 26, 1962, YOU WERE INDUCTED AS AN ENLISTED MEMBER OF THE ARMY OF THE UNITED STATES AND YOU SERVED ON ACTIVE DUTY IN THAT CAPACITY UNTIL MARCH 25, 1964.

YOU HAD PREVIOUSLY PRESENTED A CLAIM FOR PAYMENT FOR THE DRILLS PERFORMED ON MARCH 7 AND 14, 1961, SUBSEQUENT TO THE DESIGNATED EFFECTIVE DATE OF YOUR DISCHARGE AS SECOND LIEUTENANT, UNITED STATES ARMY RESERVE ON MARCH 6, 1961. IN THE CLAIM YOU STATED YOU WERE DISCHARGED BY FRAUD AND WITHOUT YOUR KNOWLEDGE AND WITHOUT ANY NOTIFICATION. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 15, 1963. HOWEVER, ON APPEAL, IT WAS ALLOWED BY SETTLEMENT DATED MAY 22, 1963, ON THE BASIS THAT THE FACTS DISCLOSED IN THE RECORD INDICATED THAT YOU WERE NOT NOTIFIED OF YOUR DISCHARGE UNTIL AFTER YOU PERFORMED THOSE DRILLS.

IN PRESENTING YOUR CLAIM FOR DIFFERENCE IN PAY FOR THE PERIOD OF ACTIVE DUTY COMMENCING MARCH 26, 1962, YOU ALLEGED AGAIN THAT YOU WERE RELIEVED OF YOUR COMMISSION IN THE UNITED STATES ARMY ON THE BASIS OF FRAUDULENT DATA AND LIES, AND YOU ALLEGED FURTHER THAT YOU WERE NOT INFORMED OF THE DATA USED AGAINST YOU OR ALLOWED TO PRESENT A DEFENSE WHEN BEING CONSIDERED FOR DISCHARGE. IT IS YOUR CONTENTION THAT THE DISCHARGE ISSUED IN THOSE CIRCUMSTANCES WAS WITHOUT EFFECT TO TERMINATE YOUR OFFICER STATUS. HOWEVER, YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 21, 1964, FOR THE REASON THAT YOUR DISCHARGE AS AN OFFICER WAS EFFECTIVE FROM THE DATE YOU RECEIVED NOTICE OF SUCH DISCHARGE, AND SINCE THE DUTY YOU PERFORMED FROM MARCH 26, 1962, TO MARCH 25, 1964, WAS SUBSEQUENT TO SUCH NOTICE, YOU WERE ENTITLED ONLY TO THE PAY OF AN ENLISTED MEN.

SECTION 593/B) OF TITLE 10, U.S.C. PROVIDES THAT APPOINTMENTS OF RESERVES IN COMMISSIONED GRADES ARE FOR AN INDEFINITE TERM AND SUCH APPOINTMENTS ARE HELD DURING THE PLEASURE OF THE PRESIDENT. SECTION 1162/A) OF THAT TITLE PROVIDES THAT SUBJECT TO OTHER PROVISIONS OF THE TITLE, RESERVE COMMISSIONED OFFICERS MAY BE DISCHARGED AT THE PLEASURE OF THE PRESIDENT. SECTION 1163/A) PROVIDES THAT THOSE WITH THREE OR MORE YEARS OF SERVICE MAY NOT BE SEPARATED WITHOUT THEIR CONSENT EXCEPT UNDER CERTAIN SPECIFIED CONDITIONS. NO PROVISION IN TITLE 10 WOULD APPEAR TO AFFECT THE AUTHORITY OF THE PRESIDENT TO DISCHARGE AT HIS PLEASURE, A RESERVE COMMISSIONED OFFICER IN YOUR CIRCUMSTANCES WHO HAS LESS THAN THREE YEARS SERVICE AS A COMMISSIONED OFFICER. PARAGRAPH 6B/38), ARMY REGULATIONS 140-175, PROMULGATED PURSUANT TO THAT STATUTORY AUTHORITY, PROVIDES THAT A DEFERRED OFFICER, ROTC OR USAR-OCS, WILL BE DISCHARGED WHEN HE HAS BEEN REPORTED TO THE LOCAL SELECTIVE SERVICE BOARD AS AVAILABLE FOR INDUCTION FOR FAILURE TO SATISFACTORILY PARTICIPATE IN THE REQUIRED READY RESERVE TRAINING, SUCH DISCHARGE ACTION TO BE ACCOMPLISHED UPON RECEIPT OF NOTIFICATION THAT SUCH MEMBER HAS BEEN REPORTED FOR INDUCTION. CONSEQUENTLY, AUTHORITY EXISTED UNDER THE CITED LAW AND REGULATIONS FOR YOUR DISCHARGE FROM COMMISSIONED OFFICER STATUS AT THE PLEASURE OF THE PRESIDENT AND WITHOUT YOUR CONSENT.

THE ACTION IN OUR SETTLEMENT OF MAY 22, 1963, UPON A RECONSIDERATION OF THE PRIOR SETTLEMENT OF MARCH 15, 1963, WAS TAKEN IN RECOGNITION OF THE GENERAL RULE THAT AN ORDER, INDIVIDUAL IN ITS OPERATION, DOES NOT BECOME EFFECTIVE UNTIL DELIVERED EITHER ACTUALLY OR CONSTRUCTIVELY TO THE PERSON CONCERNED, PROVIDED HE HAD NO PRIOR KNOWLEDGE OF ITS CONTENTS AND WAS NOT RESPONSIBLE FOR ANY DELAY IN ITS DELIVERY. GOULD V. UNITED STATES, 19 CT.CL. 593. THE EFFECT OF YOUR NOT RECEIVING THE ORDERS FOR YOUR DISCHARGE ON MARCH 6, 1961, WAS ONLY THAT THE EFFECTIVE DATE OF YOUR DISCHARGE WAS DELAYED UNTIL THEY WERE RECEIVED BY YOU, AN EVENT THAT THE RECORD INDICATES TOOK PLACE PRIOR TO YOUR INDUCTION AS AN ENLISTED MEMBER.

CONSEQUENTLY, SINCE YOU WERE DISCHARGED FROM YOUR COMMISSION PRIOR TO BEING PROPERLY INDUCTED IN THE GRADE OF AN ENLISTED MAN ON MARCH 26, 1962, YOU WERE ONLY ENTITLED TO THE PAY OF YOUR ENLISTED GRADE FOR THE PERIOD OF ACTIVE DUTY FROM MARCH 26, 1962, TO MARCH 25, 1964. ACCORDINGLY, THE SETTLEMENT OF JULY 21, 1964, WAS CORRECT AND IS SUSTAINED.