B-160303, NOVEMBER 25, 1966, 46 COMP. GEN. 437

B-160303: Nov 25, 1966

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EVEN THOUGH THERE IS LACK OF EVIDENCE OF DUTY PERFORMANCE BY THE MEMBER IN THE CHIEF WARRANT OFFICER. ON THE BASIS THAT THE RECORD CORRECTION AMOUNTS TO A RESCISSION OF THE EARLIER FINDING OF SATISFACTORY SERVICE IN THE GRADE OF SECOND LIEUTENANT AND THE SUBSTITUTION OF THE FINDING THAT THE HIGHEST GRADE HELD SATISFACTORILY BY THE MEMBER WAS CHIEF WARRANT OFFICER. THE MEMBER IS ENTITLED TO AN ADJUSTMENT PAYMENT IN RETIRED PAY. 1966: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27. TOMLIN WAS DISCHARGED ON NOVEMBER 30. THAT HE WAS APPOINTED WARRANT OFFICER. IT IS STATED THAT HE WAS PROMOTED TO CHIEF WARRANT OFFICER. THAT HE WAS RELEASED FROM ACTIVE DUTY AS A CHIEF WARRANT OFFICER.

B-160303, NOVEMBER 25, 1966, 46 COMP. GEN. 437

MILITARY PERSONNEL - RECORD CORRECTION - RETIRED PAY - RESTORATION TO ENLISTED GRADE THE CORRECTION UNDER 10 U.S.C. 1552 OF THE RECORDS OF A MEMBER OF THE ARMY OF THE UNITED STATES WHO HAD ATTAINED THE GRADE OF CHIEF WARRANT OFFICER, W-4, PRIOR TO PLACEMENT ON THE RETIRED LIST IN THE GRADE OF SECOND LIEUTENANT PURSUANT TO FORMULA 3 OF 10 U.S.C. 1401, TO PLACE HIM ON THE RETIRED LIST IN THE GRADE OF CHIEF WARRANT OFFICER, W 4, UNDER 10 U.S.C. 1331 IN ORDER TO PROVIDE HIM WITH THE GREATEST AMOUNT OF RETIRED PAY, GOVERNS THE RIGHTS OF THE MEMBER, EVEN THOUGH THERE IS LACK OF EVIDENCE OF DUTY PERFORMANCE BY THE MEMBER IN THE CHIEF WARRANT OFFICER, W -4, GRADE. THEREFORE, ON THE BASIS THAT THE RECORD CORRECTION AMOUNTS TO A RESCISSION OF THE EARLIER FINDING OF SATISFACTORY SERVICE IN THE GRADE OF SECOND LIEUTENANT AND THE SUBSTITUTION OF THE FINDING THAT THE HIGHEST GRADE HELD SATISFACTORILY BY THE MEMBER WAS CHIEF WARRANT OFFICER, W-4, THE MEMBER IS ENTITLED TO AN ADJUSTMENT PAYMENT IN RETIRED PAY.

TO LIEUTENANT COLONEL FRANK BERRISH, DEPARTMENT OF THE ARMY, NOVEMBER 25, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1966 (ASSIGNED D.O. NUMBER A-932 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER STATED IN FAVOR OF MERRILL TOMLIN, 0 243 458, RETIRED, IN THE AMOUNT OF $1,975.27, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A SECOND LIEUTENANT AND THAT OF A CHIEF WARRANT OFFICER, W-4, WITH OVER 30 YEARS' SERVICE FOR BASIC PAY PURPOSES, COVERING THE PERIOD OCTOBER 1, 1965, TO AUGUST 31, 1966.

YOU REPORT THAT AFTER SERVING IN VARIOUS NATIONAL GUARD AND RESERVE CAPACITIES, INCLUDING THAT OF SECOND LIEUTENANT, NATIONAL GUARD OF THE UNITED STATES, COMMENCING JUNE 23, 1924, MR. TOMLIN WAS DISCHARGED ON NOVEMBER 30, 1949, IN THE GRADE OF MASTER SERGEANT, AND THAT HE WAS APPOINTED WARRANT OFFICER, JUNIOR GRADE, NATIONAL GUARD OF THE UNITED STATES, ON DECEMBER 1, 1949, AND ENTERED ON ACTIVE DUTY ON SEPTEMBER 11, 1950. IT IS STATED THAT HE WAS PROMOTED TO CHIEF WARRANT OFFICER, W-2, ON APRIL 1, 1953, AND THAT HE WAS RELEASED FROM ACTIVE DUTY AS A CHIEF WARRANT OFFICER, W-2, ON SEPTEMBER 30, 1965, AND PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST UNDER 10 U.S.C. 1331, EFFECTIVE OCTOBER 1, 1965. ALSO, THE REPORT SHOWS THAT HE "ATTAINED" THE GRADE OF CHIEF WARRANT OFFICER, W-4, NATIONAL GUARD OF THE UNITED STATES, ON SEPTEMBER 1, 1955. THE RETIREMENT ORDERS OF SEPTEMBER 27, 1965 (PARAGRAPH 164, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 258, TC 438), LIST HIM AS A CHIEF WARRANT OFFICER, W-4, AND PLACE HIM ON THE RETIRED LIST IN THE GRADE OF SECOND LIEUTENANT.

IN MEMORANDUM FOR THE ADJUTANT GENERAL DATED APRIL 5, 1966, THE UNDER SECRETARY OF THE ARMY APPROVED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS UNDER 10 U.S.C. 1552, AND DIRECTED THAT MR. TOMLIN'S ARMY RECORDS BE CORRECTED TO SHOW THAT HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF CHIEF WARRANT OFFICER, W-4, EFFECTIVE OCTOBER 1, 1965, UNDER THE PROVISIONS OF 10 U.S.C. 1331.

FORMULA 3, 10 U.S.C. 1401, PROVIDES THAT THE RETIRED PAY OF A PERSON ENTITLED THERETO UNDER SECTION 1331 SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF THE "HIGHEST GRADE HELD SATISFACTORILY BY THE PERSON AT ANY TIME IN THE ARMED FORCES;, PRESUMABLY, A DETERMINATION WAS MADE BY APPROPRIATE ARMY AUTHORITY PRIOR TO CORRECTION OF HIS RECORDS THAT THE HIGHEST GRADE IN WHICH MR. TOMLIN SERVED SATISFACTORILY WAS THAT OF SECOND LIEUTENANT. SINCE THAT GRADE WAS THE HIGHEST GRADE TO WHICH HE WAS APPOINTED DURING HIS MILITARY CAREER (SEE 10 U.S.C. 3575), THE DETERMINATION THAT HE SERVED SATISFACTORILY IN THAT GRADE, SO LONG AS IT REMAINS UNCHANGED, FIXES ONE FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER THE FORMULA MENTIONED ABOVE. THE LAW DOES NOT PERMIT A DETERMINATION OF SATISFACTORY SERVICE IN THE GRADE OF SECOND LIEUTENANT AND A COMPUTATION OF HIS RETIRED PAY ON THE BASIS OF A LOWER GRADE. COMPARE FORMULA 4 OF 10 U.S.C. 1401.

THE CORRECTION BOARD'S ACTION APPEARS TO HAVE BEEN MADE ON THE BASIS OF ITS VIEW THAT THE ABOVE QUOTED PROVISIONS OF LAW "CLEARLY INTENDED THAT ONE SHOULD BE RETIRED WITH THE GREATEST AMOUNT OF RETIRED PAY;, NO INFORMATION HAS BEEN FURNISHED AS TO WHETHER MR. TOMLIN EVER PERFORMED ANY DUTY IN HIS W-4 STATUS; NEITHER DOES THE RECORD CONTAIN ANY EXPLANATION AS TO HOW HE COULD HAVE PERFORMED ANY SERVICE IN THAT CAPACITY WHICH COULD BE VIEWED AS SATISFACTORY WHEN IT APPEARS HE SERVED ON ACTIVE DUTY FROM SEPTEMBER 1, 1955 TO SEPTEMBER 30, 1965, AS A CHIEF WARRANT OFFICER, W-2. HOWEVER, UNLESS PROCURED BY FRAUD, IT IS NOT WITHIN THE AUTHORITY OF THIS OFFICE TO INQUIRE INTO, WEIGH, OR QUESTION THE REASONS WHICH INFLUENCED THE BOARD AND THE SECRETARY TO DETERMINE THAT THE CORRECTION WAS NECESSARY IN THIS CASE IN ORDER TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.

ON THE BASIS THAT THE CORRECTION MADE PURSUANT TO THE ACTION OF THE CORRECTION BOARD AMOUNTS TO A RESCISSION OF THE EARLIER FINDING OF SATISFACTORY SERVICE IN THE GRADE OF SECOND LIEUTENANT AND THE SUBSTITUTION OF A FINDING THAT THE HIGHEST GRADE HELD SATISFACTORILY BY HIM WAS CHIEF WARRANT OFFICER, W-4, AN ACTUAL CHANGE WAS MADE IN MR. TOMLIN'S RECORD AND HIS RIGHTS ARE GOVERNED BY THE CHANGED RECORD. COMP. GEN. 57. IN THE CIRCUMSTANCES AND SINCE WE FIND NO EVIDENCE OF FRAUD IN THIS CASE, PAYMENT ON THE VOUCHER RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.