B-156991, JUN. 30, 1965

B-156991: Jun 30, 1965

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BULLOCK: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 2. THE GRADE TO WHICH YOU SAY YOU WERE ELIGIBLE FOR PROMOTION. THE GRADE IN WHICH YOU WERE RETIRED. YOU WERE RELIEVED FROM YOUR ASSIGNMENT AND DUTY AT FORT CHAFFEE. THE RECORD SHOWS THAT YOUR NAME WAS SUBMITTED TO A DEPARTMENT OF THE ARMY RESERVE SELECTION BOARD AND YOU WERE RECOMMENDED FOR PROMOTION TO THE GRADE OF CHIEF WARRANT OFFICER. YOUR NAME WAS NOT REFERRED TO THE SELECTION BOARD AT THE PROPER TIME. THAT BECAUSE OF THIS ERROR YOU WERE NOT PROMOTED TO THE GRADE OF W-4 SUFFICIENTLY IN ADVANCE OF YOUR DATE OF SEPARATION TO QUALIFY YOU FOR RETIREMENT IN THE HIGHER GRADE AND. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IN THE ABSENCE OF EVIDENCE SHOWING THAT YOU WERE PROMOTED TO THE GRADE OF CHIEF WARRANT OFFICER.

B-156991, JUN. 30, 1965

TO CWO MARVIN C. BULLOCK:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 2, 1965, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED MAY 26, 1965, DISALLOWING YOUR CLAIM FOR THE DIFFERENCE IN RETIRED PAY BETWEEN THAT OF CHIEF WARRANT OFFICER, W-4, THE GRADE TO WHICH YOU SAY YOU WERE ELIGIBLE FOR PROMOTION, AND CHIEF WARRANT OFFICER, W-3, THE GRADE IN WHICH YOU WERE RETIRED, FOR THE PERIOD FROM JULY 1, 1959, TO THE PRESENT TIME.

UNDER PARAGRAPH 38, SPECIAL ORDERS NO. 106, DATED MAY 29, 1959, ISSUED AT HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., YOU WERE RELIEVED FROM YOUR ASSIGNMENT AND DUTY AT FORT CHAFFEE, ARKANSAS, ON JUNE 30, 1959, AND PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST EFFECTIVE JULY 1, 1959, IN THE GRADE OF CHIEF WARRANT OFFICER, W 3, UNDER THE PROVISIONS OF 10 U.S.C. 1293, AFTER MORE THAN 21 YEARS OF ACTIVE FEDERAL SERVICE.

THE RECORD SHOWS THAT YOUR NAME WAS SUBMITTED TO A DEPARTMENT OF THE ARMY RESERVE SELECTION BOARD AND YOU WERE RECOMMENDED FOR PROMOTION TO THE GRADE OF CHIEF WARRANT OFFICER, W-4, USAR, EFFECTIVE JULY 1, 1959. YOU CONTEND THAT DUE TO AN ERROR IN COMPUTATION OF YOUR CREDITABLE SERVICE FOR PROMOTION PURPOSES UNDER DEPARTMENT OF THE ARMY CIRCULAR 135-7, DATED JUNE 15, 1955, YOUR NAME WAS NOT REFERRED TO THE SELECTION BOARD AT THE PROPER TIME; THAT BECAUSE OF THIS ERROR YOU WERE NOT PROMOTED TO THE GRADE OF W-4 SUFFICIENTLY IN ADVANCE OF YOUR DATE OF SEPARATION TO QUALIFY YOU FOR RETIREMENT IN THE HIGHER GRADE AND, SINCE THIS ERROR HAS BEEN ACKNOWLEDGED BY THE ADJUSTANT GENERAL OF THE ARMY, ACTION SHOULD BE TAKEN TO CORRECT THE INEQUITY AND THAT YOU GRADE AND RETIRED PAY BE ADJUSTED RETROACTIVE TO THE DATE OF YOUR RETIREMENT. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IN THE ABSENCE OF EVIDENCE SHOWING THAT YOU WERE PROMOTED TO THE GRADE OF CHIEF WARRANT OFFICER, W-4, PRIOR TO YOUR RETIREMENT ON JULY 1, 1959, THERE IS NO BASIS FOR PAYMENT OF THE INCREASED RETIRED PAY CLAIMED.

THE RETIRED GRADE OF WARRANT OFFICERS IS GOVERNED BY THE PROVISIONS OF 10 U.S.C. 1371, WHICH PROVIDES THAT:

"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, A WARRANT OFFICER RETIRES, AS DETERMINED BY THE SECRETARY CONCERNED, IN THE PERMANENT REGULAR OR RESERVE WARRANT OFFICER GRADE, IF ANY, THAT HE HELD ON THE DAY BEFORE THE DATE OF HIS RETIREMENT, OR IN ANY HIGHER WARRANT OFFICER GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY, FOR A PERIOD OF MORE THAN 30 DAYS.'

THE RECORD SHOWS THAT YOU WERE GIVEN A TEMPORARY APPOINTMENT AS CHIEF WARRANT OFFICER, W-3, IN THE ARMY OF THE UNITED STATES ON APRIL 29, 1953, AND THAT YOU WERE GIVEN A PERMANENT APPOINTMENT AS CHIEF WARRANT OFFICER, W-3, IN THE UNITED STATES ARMY RESERVE, EFFECTIVE JUNE 18, 1959. SINCE THAT IS THE GRADE YOU HELD ON JUNE 30, 1959, THE DAY BEFORE THE DATE OF YOUR RETIREMENT AND NOT THE GRADE OF CHIEF WARRANT OFFICER, W-4, THE GRADE TO WHICH YOU WERE RECOMMENDED FOR PROMOTION EFFECTIVE JULY 1, 1959, THERE IS NO AUTHORITY OF LAW, ON THE BASIS OF THE PRESENT RECORD, FOR PAYMENT OF RETIRED PAY BASED ON SUCH HIGHER GRADE.