B-154268, JUN. 30, 1964

B-154268, JUN. 30, 1964

TO FIRST LIEUTENANT PAUL W. WHITE, AUS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1964, REQUESTING REVIEW OF YOUR CLAIM FOR THE DIFFERENCE IN PAY AND ALLOWANCE OF A FIRST LIEUTENANT AND THOSE OF A SECOND LIEUTENANT FOR THE PERIOD JUNE 10,1963, TO JANUARY 31, 1964, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION ON MAY 1, 1964.

THE RECORD SHOWS THAT EFFECTIVE JUNE 10, 1960, YOU WERE APPOINTED A SECOND LIEUTENANT IN THE UNITED STATES ARMY RESERVE. SPECIAL ORDERS NO. 30, DATED FEBRUARY 1, 1964, ANNOUNCED YOUR TEMPORARY PROMOTION FROM THE GRADE OF SECOND LIEUTENANT TO THE GRADE OF FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES UNDER AUTHORITY OF 10 U.S.C. 3442 AND 3447 WITH DATE OF RANK JUNE 10, 1963.

ALTHOUGH YOUR DATE OF RANK AS A FIRST LIEUTENANT WAS DESIGNATED AS JUNE 10, 1963, THAT DATE OF RANK DOES NOT DETERMINE THE EFFECTIVE DATE OF ENTITLEMENT TO PAY AND ALLOWANCES IN THE HIGHER GRADE.

10 U.S.C. 3442 AUTHORIZES THE APPOINTMENT OF CERTAIN OFFICERS IN HIGHER TEMPORARY GRADES AND PROVIDES THAT SUCH APPOINTMENTS SHALL BE MADE UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY ON A FAIR AND EQUITABLE BASIS. ON THE DATE IN QUESTION, JUNE 10, 1963, ELIGIBILITY FOR TEMPORARY PROMOTION WAS GOVERNED BY AR 624-115, DATED JUNE 5, 1962, PARAGRAPH 18 OF WHICH ESTABLISHED AS THE ELIGIBILITY REQUIREMENT FOR TEMPORARY PROMOTION FROM SECOND LIEUTENANT TO FIRST LIEUTENANT EITHER (A) 18 MONTHS OF ACTIVE DUTY AS A COMMISSIONED OFFICER OR (B) 3 YEARS IN AN ACTIVE STATUS AS A RESERVE COMMISSIONED OFFICER, COMPUTED FROM EFFECTIVE DATE OF APPOINTMENT AS SECOND LIEUTENANT IN THE UNITED STATES ARMY RESERVE OR ARMY RESERVE NATIONAL GUARD OF THE UNITED STATES. PARAGRAPH 21 OF THAT REGULATION PROVIDES THAT PROMOTION ORDERS ARE EFFECTIVE ON DATE OF ISSUANCE AND WILL BE ISSUED "ON OR AFTER INDIVIDUAL'S ATTAINMENT OF ELIGIBILITY FOR PROMOTION (PAR. 18).'

THE RECORD INCLUDES A STATEMENT SIGNED BY COLONEL HAROLD G. WILSON AS COMMANDER OF THE 1ST PSYCHOLOGICAL WARFARE BATTALION TO THE EFFECT THAT, HAD HE BEEN AWARD OF YOUR ELIGIBILITY FOR PROMOTION TO THE GRADE OF FIRST LIEUTENANT AS OF JUNE 10, 1963, YOU WOULD HAVE BEEN SO PROMOTED AT THAT TIME. HOWEVER, YOUR CHARGE OF NEGLIGENCE ON THE PART OF YOUR PERSONNEL OFFICER IN FAILING TO EFFECT YOUR PROMOTION AT THAT TIME IS IMMATERIAL SO FAR AS YOUR PAY AND ALLOWANCES ARE CONCERNED, BECAUSE IT IS WELL- ESTABLISHED THAT, IN THE ABSENCE OF A STATUTE PERMITTING RECOVERY OF COMPENSATION BECAUSE OF LOSS RESULTING FROM THE NEGLIGENCE OF ITS OFFICERS OR EMPLOYEES, THE GOVERNMENT IS NOT RESPONSIBLE FOR SUCH NEGLIGENCE. ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888).

SECTION 3451, 10 U.S. CODE, PROVIDES THAT AN OFFICER WHO IS PROMOTED TO A TEMPORARY GRADE IS CONSIDERED TO HAVE ACCEPTED HIS PROMOTION ON THE DATE OF THE ORDER ANNOUNCING IT UNLESS HE EXPRESSLY DECLINES THE PROMOTION AND THAT 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. NO OTHER PROVISION OF LAW AUTHORIZING PAYMENT TO YOU OF THE PAY AND ALLOWANCES OF THE HIGHER TEMPORARY GRADE FROM A DATE PRIOR TO THE DATE OF THE ORDERS HAS BEEN FOUND.

IN VIEW OF THE REGULATION AUTHORIZING PROMOTION ORDERS TO BE ISSUED "ON OR AFTER" THE OFFICER BECOMES ELIGIBLE WITH THE EFFECTIVE DATE FIXED AS THE DATE OF ISSUANCE, IT IS CLEAR THAT CASES WERE CONTEMPLATED WHEREIN THE OFFICER WOULD MEET ALL REQUIREMENTS FOR PROMOTION BUT WOULD NOT BE PROMOTED UNTIL A LATER DATE. ALTHOUGH YOU COMPLETED 3 YEARS IN AN ACTIVE STATUS AS A RESERVE COMMISSIONED OFFICER ON JUNE 9, 1963, THE FACT THAT YOU WERE NOT ACTUALLY PROMOTED AT THAT TIME PRECLUDES PAYMENT TO YOU OF THE PAY AND ALLOWANCES OF THE HIGHER GRADE. YOU WERE PROMOTED ON FEBRUARY 1, 1964, AND PRESUMABLY YOU HAVE RECEIVED THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT SINCE THAT DATE. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.

WITH RESPECT TO YOUR INQUIRY AS TO ANY AGENCY OR PERSON TO WHOM YOU MAY APPLY FOR AN EXCEPTION TO THE LAW BASED ON THE MERITS OF YOUR CASE, YOU ARE ADVISED THAT UNDER 10 U.S.C. 1552 THE SECRETARY OF THE ARMY, ACTING THROUGH THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, IS AUTHORIZED TO CORRECT A MILITARY RECORD WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.