B-161187, MAY 3, 1967

B-161187, MAY 3, 1967

PRECIS-UNAVAILABLE

JOHN A. COLE:

REFERENCE IS MADE TO CORRESPONDENCE RECEIVED HERE MARCH 24, 1967, FROM THE UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, CONCERNING YOUR CLAIM FOR INACTIVE DUTY PAY WHILE ATTENDING TRAINING ASSEMBLIES WITH THE 382D ORDNANCE COMPANY (DAS), SAN JOSE, CALIFORNIA, DURING THE PERIOD AUGUST 8, 1962, TO JANUARY 6, 1963.

OUR RECORDS SHOW THAT A PORTION OF THIS CLAIM WAS THE SUBJECT OF A SETTLEMENT BY OUR CLAIMS DIVISION, DATED JULY 26, 1966, IN WHICH YOU WERE ADVISED THAT THERE WAS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM IN THE ABSENCE OF PROPER ASSIGNMENT ORDERS. YOU WERE ADVISED THAT THE RECORDS DID NOT SHOW UPON WHAT AUTHORITY YOU ATTENDED DRILLS WITH THE 382D ORDNANCE COMPANY (DAS), SAN JOSE, CALIFORNIA, DURING THE PERIOD IN QUESTION.

OUR RECORDS SHOW THAT WHEN YOU WERE RELEASED FROM ACTIVE DUTY AT FORT ORD, CALIFORNIA, IN MAY 1962, YOU WERE ASSIGNED TO THE VI U. S. ARMY CORPS ANNUAL TRAINING CONTROL GROUP, FORT BENJAMIN HARRISON, INDIANA. THE ORDERS INVOLVED LISTED YOUR HOME OF RECORD AS MARQUETTE, MICHIGAN. SINCE YOU WERE RELEASED FROM ACTIVE DUTY IN CALIFORNIA AND YOU APPARENTLY PLANNED TO REMAIN THERE, IT IS INDICATED THAT YOU ADVISED THE VI U. S. ARMY CORPS OF YOUR NEW PERMANENT ADDRESS IN CALIFORNIA ON OR ABOUT JUNE 1, 1962. AFTER YOU RECEIVED A LETTER FROM HEADQUARTERS, VI U. S. ARMY CORPS, ADVISING YOU OF YOUR RESERVE COMMITMENT THERE, YOU SENT THAT HEADQUARTERS ANOTHER CHANGE OF ADDRESS FORM. YOU STATE THAT THE U. S. ARMY RESERVE CENTER, SAN JOSE, CALIFORNIA, ADVISED YOU THAT YOU COULD ATTEND MEETINGS WITH THE 382D ORDNANCE COMPANY, IN THAT CITY, AND THAT ORDERS WOULD BE ISSUED ASSIGNING YOU TO THAT UNIT WHEN YOUR 201 FILE ARRIVED AT XV U. S. ARMY HEADQUARTERS. IT APPEARS THAT YOU PERFORMED DRILLS WITH THIS UNIT BETWEEN AUGUST 8, 1962, AND JANUARY 6, 1963, AFTER WHICH THE 382D ORDNANCE COMPANY WAS DEACTIVATED.

ON FEBRUARY 1, 1963, SPECIAL ORDERS NO. 23 WERE ISSUED BY HEADQUARTERS, VI U. S. ARMY CORPS, BATTLE CREEK, MICHIGAN, THE CORPS AREA TO WHICH YOU WERE INITIALLY ASSIGNED, REASSIGNING YOU TO THE XV ARMY CORPS ANNUAL TRAINING CONTROL GROUP, EFFECTIVE OCTOBER 16, 1962, ON THE BASIS OF VERBAL ORDERS SAID TO HAVE BEEN ISSUED ON THE SAME DATE. THOSE ORDERS WERE AMENDED BY SPECIAL ORDERS NO. 184, DATED SEPTEMBER 20, 1966, SAME HEADQUARTERS, TO SHOW AUGUST 6, 1962, AS THE EFFECTIVE DATE OF YOUR TRANSFER. IT IS INDICATED THAT SUCH ORDERS WERE BASED ON VERBAL ORDERS OF AUGUST 6, 1962.

THIS OFFICE HAS HELD THAT IN ORDER FOR AN INACTIVE RESERVE MEMBER TO RECEIVE PAY FOR ATTENDANCE AT TRAINING ASSEMBLIES HIS CLAIM MUST BE BASED ON WRITTEN ORDERS ISSUED CONTEMPORANEOUSLY WITH THE DUTY, OR IF THE CLAIM IS BASED ON VERBAL ORDERS THEY MUST BE SUBSEQUENTLY CONFIRMED IN WRITING WITHIN A REASONABLE TIME THEREAFTER. SEE 43 COMP. GEN. 281.

IT APPEARS REASONABLY CLEAR THAT IF THE VERBAL ORDERS OF AUGUST 6, 1962, ACTUALLY HAD BEEN ISSUED THE ORDERS OF FEBRUARY 1, 1963, WOULD HAVE BEEN BASED ON SUCH VERBAL ORDERS. THE ORDERS OF FEBRUARY 1, 1963, WERE NOT ISSUED UNTIL NEARLY SIX MONTHS AFTER YOU BEGAN ATTENDING TRAINING ASSEMBLIES WITH THE 382D ORDNANCE COMPANY AT SAN JOSE. EVEN IF THOSE ORDERS COULD BE REGARDED AS VALIDLY EFFECTING THE TRANSFER DIRECTED THEREIN AS OF OCTOBER 16, 1962, THEY WOULD FURNISH NO AUTHORITY FOR THE PAYMENT OF ANY PART OF YOUR CLAIM, SINCE THEY DID NOT ASSIGN YOU TO THE RESERVE UNIT AT SAN JOSE.

THE ONLY ORDERS WHICH PURPORT TO ASSIGN YOU TO THE 382D ORDNANCE COMPANY AT SAN JOSE ARE RESERVE SPECIAL ORDERS NO. 146, NOVEMBER 8, 1966, HEADQUARTERS, XV U. S. ARMY CORPS, PARAGRAPH 2 OF WHICH EFFECTED SUCH ASSIGNMENT FOR THE PERIOD AUGUST 7 TO OCTOBER 18, 1962. SUCH ASSIGNMENT IS STATED TO BE FOR RECORD PURPOSES ONLY.

THE RULE IS WELL ESTABLISHED THAT RETROACTIVE ORDERS ARE WITHOUT EFFECT TO EITHER INCREASE OR DECREASE VESTED RIGHTS OF GOVERNMENT PERSONNEL. SEE, 23 COMP. GEN. 713, 24 ID. 439 AND 43 ID. 281. SINCE IT APPEARS CLEAR THAT THE ORDERS OF NOVEMBER 8, 1966, ARE RETROACTIVE IN SCOPE, AND NO OTHER ORDERS ASSIGNED YOU TO THE RESERVE UNIT WHERE YOU ATTENDED TRAINING ASSEMBLIES, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION ON JULY 16, 1966, IS SUSTAINED.

IT IS NOTED THAT YOU EXECUTED DD FORM 149 ON AUGUST 9, 1966, REQUESTING THAT THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS CORRECT YOUR RECORD IN A MANNER WHICH WILL PERMIT THE PAYMENT OF YOUR CLAIM. FOR REASONS NOT DISCLOSED THAT FORM WAS FORWARDED TO THIS OFFICE WITH OTHER PAPERS RELATING TO YOUR CLAIM. SUCH FORM IS RETURNED HEREWITH FOR SUCH FURTHER USE AS YOU MAY WISH. THE CORRECTION BOARD HAS AUTHORITY TO MAKE THE INDICATED CHANGE IF IT BELIEVES THAT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.