B-160275, DEC. 12, 1966

B-160275: Dec 12, 1966

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DEPARTMENT OF THE ARMY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 26. HE WAS TENDERED AN APPOINTMENT AS CAPTAIN. WAS ORDERED TO ACTIVE DUTY. THE ACTIVE DUTY ORDERS WERE ADDRESSED TO HIM AS A CAPTAIN AND THE LETTERS "USAR" FOLLOWED HIS NAME. AFTER HE REPORTED FOR DUTY THOSE ORDERS WERE AMENDED TO SHOW THAT HE WAS ORDERED TO ACTIVE DUTY AS A FIRST LIEUTENANT. HIS APPOINTMENT LETTER WAS "CORRECTED" TO SHOW APPOINTMENT AS A FIRST LIEUTENANT. THE JUDGE ADVOCATE GENERAL RENDERED AN OPINION THAT HIS TEMPORARY APPOINTMENT AS CAPTAIN AND THE CORRECTED APPOINTMENT AS FIRST LIEUTENANT WERE VOID AND SUGGESTED THAT THE DISBURSING OFFICER REQUEST A DECISION FROM THIS OFFICE ON THE QUESTION AS TO WHETHER MR.

B-160275, DEC. 12, 1966

TO FINANCE AND ACCOUNTING OFFICER, THROUGH OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 26, 1966, FORWARDED HERE BY LETTER OF OCTOBER 19, 1966, OF THE OFFICE OF THE CHIEF OF FINANCE, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF MR. PIERRE Y. BRUNET, TO PAY AND ALLOWANCES FOR THE PERIOD MARCH 7 THROUGH JULY 11, 1966. YOUR REQUEST HAS BEEN ALLOCATED D.O. NUMBER A 933 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT ON JANUARY 27, 1966, MR. BRUNET, A NON-DECLARANT ALIEN, APPLIED FOR AN APPOINTMENT AS RESERVE MAJOR IN THE VETERINARY CORPS AND REQUESTED ACTIVE DUTY. HE WAS TENDERED AN APPOINTMENT AS CAPTAIN, ARMY OF THE UNITED STATES, ON FEBRUARY 19, 1966, EXECUTED THE OATH OF OFFICE ON FEBRUARY 24, 1966, AND WAS ORDERED TO ACTIVE DUTY, EFFECTIVE MARCH 7, 1966. THE ACTIVE DUTY ORDERS WERE ADDRESSED TO HIM AS A CAPTAIN AND THE LETTERS "USAR" FOLLOWED HIS NAME. AFTER HE REPORTED FOR DUTY THOSE ORDERS WERE AMENDED TO SHOW THAT HE WAS ORDERED TO ACTIVE DUTY AS A FIRST LIEUTENANT, UNITED STATES ARMY RESERVE, AND HIS APPOINTMENT LETTER WAS "CORRECTED" TO SHOW APPOINTMENT AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES. AS A RESULT OF HIS COMPLAINT CONCERNING THE AMENDMENT OF HIS ORDERS, THE JUDGE ADVOCATE GENERAL RENDERED AN OPINION THAT HIS TEMPORARY APPOINTMENT AS CAPTAIN AND THE CORRECTED APPOINTMENT AS FIRST LIEUTENANT WERE VOID AND SUGGESTED THAT THE DISBURSING OFFICER REQUEST A DECISION FROM THIS OFFICE ON THE QUESTION AS TO WHETHER MR. BRUNET IS ENTITLED TO RETAIN THE AMOUNTS PAID TO HIM FROM MARCH 7, 1966, TO JULY 11, 1966, THE DATE HE WAS RELEASED FROM ACTIVE DUTY.

YOU SAY THAT THE OFFICER WAS PAID FOR THE PERIOD MARCH 7 TO MAY 31, 1966, INCLUSIVE; THAT HIS PAY FOR JUNE 1 TO 30, 1966, WAS COMPUTED BUT THE CHECK THEN PREPARED LATER WAS CANCELLED; AND THAT NO VOUCHER HAS BEEN OR WILL BE PREPARED FOR THE PERIOD JULY 1 TO 11, 1966.

SUBSEQUENT TO YOUR SUBMISSION OF THE MATTER FOR OUR DECISION, THE CASE WAS RECONSIDERED BY THE JUDGE ADVOCATE GENERAL AND IN AN OPINION DATED NOVEMBER 4, 1966, JAGA 1966/4453, IT WAS POINTED OUT THAT BRUNET WAS NOT APPOINTED A RESERVE OFFICER DUE TO HIS NON-CITIZENSHIP STATUS (10 U.S.C. 591 (B) (, AND THE CONCLUSION WAS REACHED THAT HIS TEMPORARY APPOINTMENT AS CAPTAIN, ARMY OF THE UNITED STATES, ON FEBRUARY 19, 1966, WAS AND IS A VALID APPOINTMENT. SEE PARAGRAPH 11, AR 140-109. IT WAS ALSO HELD THAT THE ATTEMPTED AMENDMENT OF HIS ORDERS TO SHOW THAT HE WAS APPOINTED AND ORDERED TO ACTIVE DUTY AS A FIRST LIEUTENANT WAS VOID AND OF NO EFFECT SINCE HE NEVER HAD AN APPOINTMENT IN THE GRADE OF FIRST LIEUTENANT. THE OPINION OF NOVEMBER 4, 1966, WAS BASED ON ADDITIONAL INFORMATION SHOWING THAT THE PROVISIONS OF AR 140-109 HAD BEEN MADE SPECIFICALLY APPLICABLE TO VETERINARY REGISTRANTS. CONSEQUENTLY IT WAS CONCLUDED THAT HE REMAINS IN THE TEMPORARY GRADE OF CAPTAIN AND IS ENTITLED TO PAY OF THAT GRADE FROM MARCH 7, 1966, TO JULY 1966, LESS THOSE SUMS WHICH HAVE ALREADY BEEN PAID HIM.

WHILE LETTER ORDERS A-02-956, FEBRUARY 25, 1966, ORDERING CAPTAIN BRUNET TO ACTIVE DUTY, ERRONEOUSLY REFERRED TO HIM AS CAPTAIN, UNITED STATES ARMY RESERVE, AN OFFICE WHICH HE DID NOT AND COULD NOT LEGALLY HOLD, IT SEEMS REASONABLY CLEAR THAT IT WAS INTENDED TO ORDER HIM TO ACTIVE DUTY IN THE GRADE IN WHICH HE HAD BEEN APPOINTED AND WHICH HE HAD ACCEPTED, THAT IS, CAPTAIN, ARMY OF THE UNITED STATES. THE FACT THAT THE ORDERS INDICATED THAT HE WAS A MEMBER OF THE ARMY RESERVE INSTEAD OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, DID NOT IN ITSELF GIVE HIM THE RIGHT TO IGNORE OR REFUSE TO COMPLY WITH THE ORDERS WITHOUT BEING SUBJECT TO DISCIPLINARY ACTION, AND WE SEE NO REASON WHY SUCH LISTING--- POSSIBLY DUE TO INADVERTENCE--- SHOULD DEPRIVE HIM OF THE PAY AND ALLOWANCES WHICH ACCRUED AS A RESULT OF HIS ACTIVE DUTY AS A CAPTAIN. UNDER ALL THE CIRCUMSTANCES APPEARING IN THIS CASE AND SINCE CAPTAIN BURNET APPARENTLY DID NOT REGARD HIS ACTIVE DUTY ORDERS AS BEING QUESTIONABLE IN ANY WAY, WE CONCUR IN THE VIEWS EXPRESSED BY THE JUDGE ADVOCATE GENERAL. ACCORDINGLY, APPROPRIATE STEPS SHOULD BE TAKEN TO PAY CAPTAIN BURNET HIS PAY AND ALLOWANCES FOR THE PERIOD JUNE 1 TO JULY 11, 1966.