B-154108, JUN. 25, 1964

B-154108: Jun 25, 1964

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MSC: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 27. WHILE YOU WERE SERVING AS AN OFFICER IN THE MEDICAL ADMINISTRATIVE CORPS OF THE ARMY. WE HAVE RECEIVED YOUR LETTER OF JUNE 15. ALTHOUGH YOU SAY THAT YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN THE PAY OF A FIRST LIEUTENANT. IT IS IN EFFECT A CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF THE SECOND PERIOD AND THE PAY OF THE THIRD PERIOD INCIDENT TO YOUR APPOINTMENT TO THE GRADE OF CAPTAIN. YOU SAY THAT YOU ARE ENTITLED TO SUCH PAY UNDER AN ACT OF CONGRESS PASSED IN 1942 AND THAT YOU KNOW THAT OTHER MEDICAL ADMINISTRATIVE CORPS OFFICERS OF THE SAME GRADE AND APPROXIMATE LENGTH OF SERVICE RECEIVED SUCH DIFFERENCE IN PAY. - "THE PAY OF THE THIRD PERIOD SHALL BE PAID * * * TO CAPTAINS OF THE ARMY * * * AND OFFICERS OF CORRESPONDING GRADE WHO HAVE COMPLETED SEVEN YEARS' SERVICE.

B-154108, JUN. 25, 1964

TO COLONEL HARRY J. NELSON, MSC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1964, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 21, 1964, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PAY WHICH YOU BELIEVE TO BE DUE YOU FOR THE PERIOD FROM SEPTEMBER 9, 1940, TO DECEMBER 7, 1941, INCLUSIVE, WHILE YOU WERE SERVING AS AN OFFICER IN THE MEDICAL ADMINISTRATIVE CORPS OF THE ARMY. ALSO, WE HAVE RECEIVED YOUR LETTER OF JUNE 15, 1964. ALTHOUGH YOU SAY THAT YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN THE PAY OF A FIRST LIEUTENANT, AND THE PAY OF A TEMPORARY CAPTAIN, IT IS IN EFFECT A CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF THE SECOND PERIOD AND THE PAY OF THE THIRD PERIOD INCIDENT TO YOUR APPOINTMENT TO THE GRADE OF CAPTAIN. YOU SAY THAT YOU ARE ENTITLED TO SUCH PAY UNDER AN ACT OF CONGRESS PASSED IN 1942 AND THAT YOU KNOW THAT OTHER MEDICAL ADMINISTRATIVE CORPS OFFICERS OF THE SAME GRADE AND APPROXIMATE LENGTH OF SERVICE RECEIVED SUCH DIFFERENCE IN PAY.

THE SIXTH AND SEVENTH PARAGRAPHS OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1922, CH. 212, 42 STAT. 626, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, PROVIDED, IN PERTINENT PART, THAT---

"THE PAY OF THE THIRD PERIOD SHALL BE PAID * * * TO CAPTAINS OF THE ARMY * * * AND OFFICERS OF CORRESPONDING GRADE WHO HAVE COMPLETED SEVEN YEARS' SERVICE, OR WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY * * *.

"THE PAY OF THE SECOND PERIOD SHALL BE PAID TO CAPTAINS OF THE ARMY * * * AND OFFICERS OF CORRESPONDING GRADE WHO ARE NOT ENTITLED TO THE PAY OF THE THIRD OR FOURTH PERIOD; TO FIRST LIEUTENANTS OF THE ARMY * * * AND OFFICERS OF CORRESPONDING GRADE WHO HAVE COMPLETED THREE YEARS' SERVICE, OR WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY * * *.'

BASE PAY WAS FIXED IN THAT SECTION AT $2,000 PER ANNUM (OR $166.67 PER MONTH) FOR THE SECOND PERIOD AND AT $2,400 PER ANNUM (OR $200 PER MONTH) FOR THE THIRD PERIOD.

THE NINTH PARAGRAPH OF SUCH SECTION PROVIDED THAT---

"DURING THE EXISTENCE OF A STATE OF WAR, FORMALLY RECOGNIZED BY CONGRESS, OFFICERS OF GRADES CORRESPONDING TO THOSE OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, AND FIRST LIEUTENANTS OF THE ARMY, HOLDING EITHER PERMANENT OR TEMPORARY COMMISSIONS AS SUCH, SHALL RECEIVE THE PAY OF THE SIXTH, FIFTH, FOURTH, THIRD, AND SECOND PERIODS, RESPECTIVELY, UNLESS ENTITLED UNDER THE FOREGOING PROVISIONS OF THIS SECTION TO THE PAY OF A HIGHER PERIOD.'

THE TENTH AND ELEVENTH PARAGRAPHS OF THE SAME SECTION PROVIDED, SO FAR AS IS HERE PERTINENT, THAT EVERY OFFICER PAID UNDER THE PROVISIONS OF THE SECTION SHOULD RECEIVE AN INCREASE OF 5 PERCENT OF THE BASE PAY OF HIS PERIOD FOR EACH 3 YEARS OF SERVICE UP TO 30 YEARS, AND THAT NO SERVICE SHOULD BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT.

THE RECORDS SHOW THAT YOU WERE FIRST COMMISSIONED IN THE REGULAR ARMY ON AUGUST 21, 1935, IN THE GRADE OF SECOND LIEUTENANT; THAT YOU WERE PROMOTED TO THE GRADE OF FIRST LIEUTENANT ON AUGUST 19, 1940; THAT YOU WERE APPOINTED TO THE GRADE OF CAPTAIN ON OCTOBER 1, 1940, WITH DATE OF RANK FROM SEPTEMBER 9, 1940; AND THAT YOU ACCEPTED SUCH APPOINTMENT ON OCTOBER 7, 1940. YOU COMPLETED 3 YEARS' SERVICE ON AUGUST 20, 1938, AND 6 YEARS' SERVICE ON AUGUST 20, 1941, BUT YOU DID NOT, DURING THE PERIOD OF YOUR CLAIM, COMPLETE 7 YEARS' SERVICE. THE RECORDS SHOW THAT FOR THE PERIOD FROM SEPTEMBER 1, 1940, TO AUGUST 20, 1941, YOUR MONTHLY PAY WAS $175 (THE BASE AND LONGEVITY PAY OF THE SECOND PERIOD FOR AN OFFICER WHO HAD COMPLETED 3 YEARS' SERVICE) AND THAT FOR THE PERIOD FROM AUGUST 21, 1941, TO DECEMBER 7, 1941, YOUR MONTHLY PAY WAS $183.33 (THE PAY OF THE SECOND PERIOD FOR AN OFFICER WHO HAD COMPLETED 6 YEARS' SERVICE). SINCE THE PAY OF THE SECOND PERIOD WAS PROVIDED FOR BOTH A CAPTAIN WHO HAD COMPLETED LESS THAN 7 YEARS' SERVICE, AND A FIRST LIEUTENANT WHO HAD COMPLETED 3 YEARS' SERVICE, YOU WERE NOT ENTITLED TO ANY INCREASE IN PAY INCIDENT TO YOUR APPOINTMENT TO THE GRADE OF CAPTAIN ON OCTOBER 1, 1940, AND YOU DID NOT, THEREFORE, BECOME ENTITLED TO THE PAY OF THE THIRD PERIOD AT THAT TIME.

THEREAFTER, THERE WAS ENACTED THE ACT OF JULY 20, 1942, CH. 509, 56 STAT. 663, WHICH PROVIDED---

"THAT IN TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT ANY OFFICER OF THE MEDICAL ADMINISTRATIVE CORPS, COMMISSIONED IN THE ARMY OF THE UNITED STATES OR ANY COMPONENT THEREOF, MAY BE APPOINTED BY THE PRESIDENT TO HIGHER TEMPORARY GRADE, NOT ABOVE THE GRADE OF COLONEL, WITHOUT VACATING ANY APPOINTMENT HELD BY HIM AT THE TIME OF SUCH TEMPORARY APPOINTMENT. ALL OFFICERS SO APPOINTED SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES AND SHALL RECEIVE THE PAY AND ALLOWANCES OF THE GRADE TO WHICH TEMPORARILY APPOINTED * * *.

"SEC. 2. ALL APPOINTMENTS AND PAYMENTS WHICH WOULD HAVE BEEN VALID HAD THIS ACT BEEN IN EFFECT ON AND AFTER SEPTEMBER 9, 1940, ARE HEREBY RATIFIED AND VALIDATED, AND OFFICERS APPOINTED TO A HIGHER TEMPORARY GRADE WHOSE APPOINTMENTS ARE RATIFIED AND VALIDATED BY THIS ACT SHALL BE ENTITLED TO PAY AND ALLOWANCES OF SUCH GRADE FOR THE PERIOD DURING WHICH THEY SERVED IN SAID GRADE TO BE PAID OUT OF ANY FUNDS AVAILABLE FOR PAY OF THE ARMY * * *.'

IT APPEARS THAT THIS IS THE ACT UPON WHICH YOUR CLAIM IS BASED. IT IS NOT FOR APPLICATION IN YOUR CASE, HOWEVER, SINCE YOUR PAY ACCOUNT WAS CREDITED CURRENTLY WITH THE PAY OF THE GRADE OF CAPTAIN TO WHICH YOU WERE TEMPORARILY APPOINTED ON OCTOBER 1, 1940, WHICH, AS POINTED OUT ABOVE, WAS THE PAY OF THE SECOND PERIOD AND THE SAME AS THE PAY OF THE GRADE OF FIRST LIEUTENANT WHICH YOU HAD RECEIVED BEFORE YOUR APPOINTMENT TO THE GRADE OF CAPTAIN. IT WAS NOT UNTIL DECEMBER 8, 1941, THAT, UNDER THE PROVISIONS OF THE NINTH PARAGRAPH OF SECTION 1 OF THE 1922 ACT, YOU BECAME ENTITLED TO THE PAY OF THE THIRD PERIOD. ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF APRIL 21, 1964, IS SUSTAINED.

WITH REGARD TO YOUR STATEMENT THAT YOU KNOW OF OTHER OFFICERS WHO HAVE RECEIVED ADDITIONAL PAY IN SIMILAR CIRCUMSTANCES, IT MAY BE STATED THAT IF SUCH PAYMENTS WERE MADE IN CIRCUMSTANCES IDENTICAL WITH YOURS, THEY WERE ERRONEOUS AND COULD AFFORD NO BASIS FOR A LIKE PAYMENT TO YOU.