B-160194, JAN. 18, 1967

B-160194: Jan 18, 1967

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DEVENPORT: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20. YOUR CLAIM FOR PAY FOR TRAINING ASSEMBLIES ATTENDED DURING THE PERIOD IN QUESTION IS BASED ON SPECIAL ORDERS NO. 197. PARAGRAPH 6 OF THOSE ORDERS WHICH DIRECTED YOUR ATTACHMENT TO THE USAR SCHOOL SPECIFICALLY STATES THAT ITS PURPOSE IS FOR "RESERVE DUTY TRAINING FOR RETIREMENT POINTS ONLY.'. IT IS ADMINISTRATIVELY REPORTED THAT YOU COMMENCED INSTRUCTION IN MOS COURSES AT LUBBOCK USAR SCHOOL PRIOR TO OBTAINING A WAIVER TO EXCEED THE GRADE RESTRICTION OF TD 60-909 FOR ASSIGNMENT. THE USAR SCHOOL TD60-909 WAS LATER CHANGED TO AUTHORIZE WARRANT OFFICERS TO OCCUPY MOS INSTRUCTOR POSITIONS IN THE USAR SCHOOL PROGRAM. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON THE BASIS OF THE RULE APPLICABLE TO THE ISSUANCE OF RETROACTIVE ORDERS AND THE CONFIRMATION OF VERBAL ORDERS.

B-160194, JAN. 18, 1967

TO MR. ALLEN D. DEVENPORT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20, 1966, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED SEPTEMBER 15, 1966, WHICH DISALLOWED YOUR CLAIM FOR PAY FOR TRAINING ASSEMBLIES ATTENDED DURING THE PERIOD OCTOBER 1, 1963, TO FEBRUARY 28, 1964, AT LUBBOCK U.S. ARMY RESERVE SCHOOL, AMARILLO, TEXAS.

YOUR CLAIM FOR PAY FOR TRAINING ASSEMBLIES ATTENDED DURING THE PERIOD IN QUESTION IS BASED ON SPECIAL ORDERS NO. 197, DATED SEPTEMBER 24, 1965, HEADQUARTERS, VIII U.S. ARMY CORPS, AUSTIN, TEXAS (PARAGRAPHS 5 AND 6), CONFIRMING PURPORTED VERBAL ORDERS OF THE COMMANDING GENERAL DATED OCTOBER 1, 1963, AUTHORIZING WAIVER FOR ASSIGNMENT OF WARRANT OFFICER MOS INSTRUCTORS, AND RELIEVING YOU (AND CHIEF WARRANT OFFICER ALLEN J. MCCARTY, W2), FROM YOUR DUTIES AS CHIEF WARRANT OFFICER, W-3, WITH THE 4222D USAR, LOGISTIC COMMAND, AMARILLO, TEXAS, AND ASSIGNING YOU (RETROACTIVELY TO OCTOBER 1, 1963) TO THE 4166TH ARSU LUBBOCK USAR SCHOOL, AMARILLO, TEXAS, AS A WARRANT OFFICER MOS INSTRUCTOR AT THAT SCHOOL. PARAGRAPH 6 OF THOSE ORDERS WHICH DIRECTED YOUR ATTACHMENT TO THE USAR SCHOOL SPECIFICALLY STATES THAT ITS PURPOSE IS FOR "RESERVE DUTY TRAINING FOR RETIREMENT POINTS ONLY.' THE SAME ORDERS (PARAGRAPHS 7 AND 8) RELIEVED YOU FROM THAT ASSIGNMENT AND REASSIGNED YOU TO YOUR ORIGINAL ORGANIZATION EFFECTIVE MARCH 1, 1964.

IT IS ADMINISTRATIVELY REPORTED THAT YOU COMMENCED INSTRUCTION IN MOS COURSES AT LUBBOCK USAR SCHOOL PRIOR TO OBTAINING A WAIVER TO EXCEED THE GRADE RESTRICTION OF TD 60-909 FOR ASSIGNMENT. THE USAR SCHOOL TD60-909 WAS LATER CHANGED TO AUTHORIZE WARRANT OFFICERS TO OCCUPY MOS INSTRUCTOR POSITIONS IN THE USAR SCHOOL PROGRAM. ALSO, THE RECORD CONTAINS A REPORT DATED NOVEMBER 15, 1965, BY COLONEL WILLIAM P. BROCKMEYER, COMMANDANT, 4166 ARSU LUBBOCK, USAR SCHOOL, TO THE EFFECT THAT YOU AND CHIEF WARRANT OFFICER MCCARTY DID NOT ATTEND DRILLS DURING THE MONTH OF FEBRUARY 1964.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON THE BASIS OF THE RULE APPLICABLE TO THE ISSUANCE OF RETROACTIVE ORDERS AND THE CONFIRMATION OF VERBAL ORDERS. YOU STATE, IN SUBSTANCE, THAT THE ADMINISTRATIVE PROCESSING SUBSEQUENT TO THE VERBAL ORDERS WAS "AN ADMINISTRATIVE COMEDY OF ERRORS ON THE PART OF THE ARMY," AND THAT THE RECORD INDICATES THAT YOU WERE ENCOURAGED TO CONTINUE YOUR SERVICES ON THE BASIS THAT THE ADMINISTRATIVE PROCESSING WOULD EVENTUALLY BE COMPLETED. YOU FURTHER STATE THAT THE POSITIONS IN QUESTION WERE ENLISTED VACANCIES AND THE ARMY VERBALLY DIRECTED COMMISSIONED OFFICERS AND WARRANT OFFICERS TO SERVE AND INSTRUCT DUE TO A SHORTAGE OF QUALIFIED ENLISTED MEN; THAT THE OFFICERS WERE PAID AND THE WARRANT OFFICERS WERE OT; AND THAT NO ARMY REGULATIONS OR LEGISLATION PRECLUDES THE PAYMENT OF EITHER COMMISSIONED OFFICERS OR WARRANT OFFICERS. YOU SAY THAT THE ARMY RECOGNIZED THE ERROR AND INJUSTICE OF ITS ACTIONS AS INDICATED BY THE LONG OVERDUE ISSUANCE OF THE CONFIRMING ORDERS OF SEPTEMBER 24, 1965.

WITH RESPECT TO THE ASSIGNMENT OF WARRANT OFFICERS TO INSTRUCTOR DUTIES IN USAR SCHOOLS, THE RECORD CONTAINS A COPY OF FIRST INDORSEMENT DATED JANUARY 7, 1964, FROM HEADQUARTERS, 4TH U.S. ARMY, FORT SAM HOUSTON, TEXAS, TO THE COMMANDING GENERAL, U.S. CONTINENTAL ARMY COMMAND, WHICH READS AS FOLLOWS:

"1. IT IS RECOGNIZED THAT IN ACCORDANCE WITH CURRENT REGULATIONS THAT AUTHORITY DOES NOT EXIST TO PERMIT WARRANT OFFICERS TO PARTICIPATE IN THE USAR SCHOOL PROGRAM AS A STUDENT. FURTHER, THERE ARE NO SPACES IN TD 60- 909 FOR WARRANT OFFICERS TO BE ASSIGNED TO A STAFF OR FACULTY POSITION.

"2. RECOMMEND THAT TD 60-909 BE CHANGED OR AUTHORITY GRANTED FOR WARRANT OFFICERS TO BE UTILIZED AS INSTRUCTORS FOR MOS TRAINING IN USAR SCHOOLS.' IN THIS CONNECTION PARAGRAPH 2 OF LETTER DATED JUNE 8, 1965, FROM HEADQUARTERS, VIII U.S. ARMY CORPS, TO COMMANDANT, 4166TH ARSU LUBBOCK USAR SCHOOL READS AS FOLLOWS:

"2. ON 6 NOVEMBER 1963, THIS HEADQUARTERS FORWARDED WAIVER REQUEST FOR CWO DEVENPORT TO USCONARC, THROUGH FOURTH US ARMY. ALTHOUGH BOTH THIS HEADQUARTERS AND FOURTH US ARMY RECOMMENDED APPROVAL, THE REQUEST WAS DENIED BY USCONARC BY 2D INDORSEMENT, NOVEMBER (NO DATE) 1963, WHICH READ IN PART "THERE ARE NO PROVISIONS IN EXISTING REGULATIONS AUTHORIZING WARRANT OFFICERS AS INSTRUCTORS IN USAR SCHOOLS.' BASED ON THIS DENIAL, THE REQUEST FOR WAIVER SUBMITTED BY CWO MCCARTY WAS RETURNED WITHOUT ACTION BY THIS HEADQUARTERS.'

THE RECORD ALSO CONTAINS STATEMENTS BY LIEUTENANT ORDIE R. JONES, QM. USAR; LIEUTENANT COLONEL CLARENCE V. DAVIS, 4222 USAR, LOGISTICAL COMMAND; AND COLONEL CHARLES B. CROOK, COMMANDING OFFICER OF THE 4222D LOGISTICAL COMMAND, TO THE EFFECT THAT RESPONSIBLE OFFICIALS ASSURED THE OFFICERS AND WARRANT OFFICERS ASSIGNED AS INSTRUCTORS AT THE MOS SCHOOL THAT A WAIVER WOULD BE OBTAINED AND THEY WOULD RECEIVE PAY AND RETIREMENT POINTS IN SOME WAY. HOWEVER, BY FIRST INDORSEMENT DATED JUNE 22, 1965, TO THE COMMANDING GENERAL, VIII U.S. ARMY CORPS, COLONEL BROCKMEYER, COMMANDANT 4166TH ARSU LUBBOCK USAR SCHOOL, STATED IN PERTINENT PART AS FOLLOWS:

"3. I SENT LT. COL. ELLIOTT, ASST. COMMANDANT AND MAJOR LIVELY, S 3 AMARILLO IN NOVEMBER 1963 TO EXPLAIN TO ALL THOSE WHO WERE INSTRUCTING FOR RETIREMENT POINTS IN THE MOS SCHOOL THAT THEY WERE NOT BEING PAID AND WE COULD SEE NO WAY FOR THEM TO RECEIVE PAY OR POINTS IN THE FUTURE. THE COMMANDING OFFICER, NEW MEXICO AND WESTTEXAS SECTOR, WAS ALSO IN AMARILLO AT THIS SAME TRAINING ASSEMBLY. HE MET WITH THESE OFFICERS AND WARRANT OFFICERS AND STATED THAT COL. ELLIOTT'S STATEMENTS REFERENCE PAY AND POINTS WERE CORRECT, BUT HE BELIEVED THERE WOULD BE A CHANGE OF REGULATIONS AND THAT HE WOULD APPRECIATE EACH INSTRUCTOR CONTINUING AS AT PRESENT. IN DUE COURSE OF TIME ONE (1) CAPTAIN AND ONE (1) 1ST LT. WERE ASSIGNED, BUT THE WARRANT OFFICERS WERE NOT, AS THERE ARE NO PROVISIONS IN EXISTING REGULATIONS AUTHORIZING WARRANT OFFICERS AS INSTRUCTORS OR ANY OTHER CAPACITY IN USAR SCHOOLS.

"4. THE ONLY COMMITMENT MADE TO THE WARRANT OFFICERS CONCERNED WAS THE SAME AS THOSE MADE TO THE CAPT. AND 1ST LT., THAT THE 4166TH HEADQUARTERS WOULD TRY IN EVERY WAY TO GET THESE INSTRUCTORS ASSIGNED OR ATTACHED FOR PAY AND/OR POINTS. SUCCESS WAS GAINED FOR THE CAPTAIN AND THE 1ST LTD., BUT NOT FOR THE WARRANT OFFICERS.'

ASIDE FROM THE LEGALITY OF THE ORDERS OF SEPTEMBER 24, 1965, FOR PAY PURPOSES, IT APPEARS FROM THE ABOVE THAT THE OFFICERS AND WARRANT OFFICERS CONCERNED WERE ALERTED TO THE SITUATION AND THAT NO DEFINITE COMMITMENT WAS MADE THAT THEY WOULD RECEIVE PAY AND RETIREMENT POINTS WHILE INSTRUCTING AT THE SCHOOL. ALSO, IT APPEARS REASONABLY CLEAR THAT NO VERBAL ORDERS ACTUALLY WERE ISSUED ON OCTOBER 1, 1963, BY THE ORDER ISSUING AUTHORITY AT HEADQUARTERS, VIII UNITED STATES ARMY CORPS, COVERING THE ASSEMBLIES INVOLVED AND YOU HAVE NOT IDENTIFIED ANY OFFICER AT SUCH HEADQUARTERS WHO COULD HAVE COMMUNICATED SUCH ORDERS TO YOU.

PARAGRAPH 20-45B (1), ARMY REGULATIONS 37-104, CH. 75, JULY 24, 1963, IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDED THAT ATTENDANCE AT TRAINING ASSEMBLIES FOR PAY PURPOSES WOULD BE PURSUANT TO PROPERLY WRITTEN ORDERS, OR VERBAL ORDERS SUBSEQUENTLY CONFIRMED IN WRITING ASSIGNING THE MEMBER TO THE UNIT. THIS PROVISION IS CURRENTLY CONTAINED IN PARAGRAPH 30141C (1), ARMY REGULATIONS 37-104, FEBRUARY 1966.

IT IS WELL SETTLED THAT RETROACTIVE ORDERS GENERALLY ARE WITHOUT EFFECT TO INCREASE OR DECREASE THE VESTED PAY RIGHTS OF GOVERNMENT PERSONNEL. SEE 24 COMP. GEN. 439, 441. ALSO, IT HAS LONG BEEN THE RULE THAT VERBAL ORDERS MUST BE CONFIRMED IN WRITING WITHIN A REASONABLE TIME IN ORDER TO BE ACCEPTED FOR THE PURPOSE OF PAYMENT OF PAY AND ALLOWANCES. SEE 43 COMP. GEN. 281, 284. WHILE IT APPEARS THAT SHORTLY AFTER OCTOBER 1, 1963, ADMINISTRATIVE ACTION WAS TAKEN TO SECURE AUTHORITY TO ISSUE ORDERS, APPROXIMATELY TWO YEARS ELAPSED BEFORE SUCH AUTHORITY WAS OBTAINED. THAT AUTHORIZATION, CONTAINED IN 1ST INDORSEMENT OF SEPTEMBER 16, 1965, FROM HEADQUARTERS, 4TH U.S. ARMY, FORT SAM HOUSTON, TEXAS, REFERRED TO SUCH ORDERS AS "RETROACTIVE ORDERS.' IN SUCH CIRCUMSTANCES, THE ORDERS OF SEPTEMBER 24, 1965, PURPORTING TO CONFIRM VERBAL ORDERS WHICH ACTUALLY WERE NOT ISSUED, MAY NOT BE ACCEPTED AS VALID ORDERS FOR PAY PURPOSES. EVEN IF PROPER VERBAL ORDERS HAD BEEN ISSUED, THEY WERE NOT CONFIRMED WITHIN A REASONABLE TIME.

WHILE YOU MAY HAVE BEEN LED TO BELIEVE THAT YOU WOULD BE ENTITLED TO PAY AND RETIREMENT POINTS FOR DUTY PERFORMED DURING THE PERIOD INVOLVED, IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V. UNITED STATES, 148 U.S. 573 (1893); 19 COMP. GEN. 503 AND 22 ID. 221. MOREOVER, EVEN ASSUMING THE VALIDITY OF THE ORDERS OF SEPTEMBER 24, 1965, THERE WOULD APPEAR TO BE NO BASIS FOR AUTHORIZING PAY FOR THE TRAINING ASSEMBLIES IN QUESTION. AS INDICATED ABOVE, PARAGRAPH 6 OF THOSE ORDERS SPECIFICALLY STATES THAT ITS PURPOSE IS FOR "RESERVE DUTY TRAINING OR RETIREMENT POINTS ONLY.'

ACCORDINGLY, ON THE RECORD BEFORE US, THE SETTLEMENT OF SEPTEMBER 15, 1966, IS SUSTAINED.