B-165451, DECEMBER 17, 1968, 48 COMP. GEN. 416

B-165451: Dec 17, 1968

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PAY - REDUCTION - PAY BASED ON GRADE HELD ALTHOUGH THE REDUCTION OF A PETTY OFFICER FROM FIRST CLASS E-6 TO SECOND CLASS E-5 FOR INCOMPETENCY TO PERFORM THE DUTIES OF THE HIGHER GRADE WAS BASED ON TWO SPECIAL EVALUATIONS RATHER THAN ON THE REQUIRED WAIVER OF THE CONDITION PRECEDENT TO A REDUCTION. " THE MEMBER IS NOT ENTITLED UPON ADVANCEMENT TO E-6 TO THE RATE OF PAY OF THAT GRADE FOR THE PERIOD OF REDUCTION IN THE ABSENCE OF A CORRECTION OF RECORDS PURSUANT TO 10 U.S.C. 1552. REDUCTION ORDERS ISSUED BY COMPETENT AUTHORITY ARE VALID EVEN THOUGH NOT ISSUED IN STRICT CONFORMITY WITH ADMINISTRATIVE REGULATIONS AND. UNDER 37 U.S.C. 204 (A) THE MEMBER IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF GRADE E-5 WHILE SERVING IN THAT GRADE.

B-165451, DECEMBER 17, 1968, 48 COMP. GEN. 416

PAY - REDUCTION - PAY BASED ON GRADE HELD ALTHOUGH THE REDUCTION OF A PETTY OFFICER FROM FIRST CLASS E-6 TO SECOND CLASS E-5 FOR INCOMPETENCY TO PERFORM THE DUTIES OF THE HIGHER GRADE WAS BASED ON TWO SPECIAL EVALUATIONS RATHER THAN ON THE REQUIRED WAIVER OF THE CONDITION PRECEDENT TO A REDUCTION--- "THE EVALUATION OF A MEMBER FOR AT LEAST TWO CONSECUTIVE MARKING PERIODS," THE MEMBER IS NOT ENTITLED UPON ADVANCEMENT TO E-6 TO THE RATE OF PAY OF THAT GRADE FOR THE PERIOD OF REDUCTION IN THE ABSENCE OF A CORRECTION OF RECORDS PURSUANT TO 10 U.S.C. 1552. REDUCTION ORDERS ISSUED BY COMPETENT AUTHORITY ARE VALID EVEN THOUGH NOT ISSUED IN STRICT CONFORMITY WITH ADMINISTRATIVE REGULATIONS AND, THEREFORE, UNDER 37 U.S.C. 204 (A) THE MEMBER IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF GRADE E-5 WHILE SERVING IN THAT GRADE, UNLESS HIS RECORD WARRANTS CORRECTION.

TO THE SECRETARY OF THE NAVY, DECEMBER 17, 1968:

REFERENCE IS MADE TO LETTER OF OCTOBER 14, 1968, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION AS TO THE ENTITLEMENT OF CLAUDE E. YOCUM, RMI, U.S. NAVY, TO THE BASIC PAY OF GRADE E-6 DURING THE PERIOD JUNE 16, 1966, TO FEBRUARY 29, 1968. THE REQUEST WAS ASSIGNED NO. SS-N-1021 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY SAYS THAT ON JUNE 16, 1966, PETTY OFFICER YOCUM WAS ADMINISTRATIVELY REDUCED IN RATE BY HIS COMMANDING OFFICER FROM PETTY OFFICER FIRST CLASS (PAY GRADE E-6) TO PETTY OFFICER SECOND CLASS (PAY GRADE E-5) UNDER AUTHORITY OF ARTICLE C-7211 (3) (A), BUREAU OF NAVAL PERSONNEL MANUAL, ON THE GROUNDS THAT HE WAS NOT QUALIFIED BY REASON OF INCOMPETENCY TO PERFORM THE DUTIES OF HIS RATE.

THE ASSISTANT SECRETARY POINTS OUT THAT THE CITED ARTICLE SPECIFIES AS A CONDITION PRECEDENT TO SUCH ADMINISTRATIVE REDUCTION FOR INCOMPETENT PERFORMANCE OF DUTY THAT THE MEMBER CONCERNED MUST BE EVALUATED "FOR AT LEAST TWO CONSECUTIVE MARKING PERIODS," UNLESS A WAIVER OF THAT REQUIREMENT HAS BEEN GRANTED BY THE CHIEF OF NAVAL PERSONNEL. FOR THE PURPOSE OF THAT ARTICLE,"TWO CONSECUTIVE MARKING PERIODS" IS DEFINED AS "TWO REGULAR ANNUAL OR SEMIANNUAL EVALUATION PERIODS OR ONE ANNUAL OR SEMI -ANNUAL EVALUATION PERIOD AND ONE SPECIAL EVALUATION PERIOD OF AT LEAST THREE MONTHS.'

THE UNDER SECRETARY SAYS THAT THE MEMBER RECEIVED A SPECIAL EVALUATION PERIOD NOVEMBER 16, 1965, TO MARCH 14, 1966; THAT HIS NEXT EVALUATION, WHILE TERMED A REGULAR EVALUATION, ACTUALLY COVERED THE PERIOD MARCH 15, 1966, TO JUNE 16, 1966; AND THAT, ALTHOUGH NO WAIVER OF THE REGULATORY REQUIREMENT WAS OBTAINED FROM THE CHIEF OF NAVAL PERSONNEL, THE MEMBER WAS REDUCED IN RATE ON JUNE 16, 1966. ON MARCH 1, 1968, THE CHIEF OF NAVAL PERSONNEL, NOTING THE FAILURE TO COMPLY WITH THE REGULATION, AUTHORIZED THE MEMBER'S ADVANCEMENT TO PETTY OFFICER FIRST CLASS (E-6), AS OF THAT DATE.

THE ASSISTANT SECRETARY SAYS, HOWEVER, THAT DOUBT EXISTS AS TO WHETHER THE PRESENT RECORD IS SUCH AS TO AUTHORIZE THE APPROPRIATE ADJUSTMENT OF PETTY OFFICER YOCUM'S PAY FOR THE PERIOD JUNE 16, 1966, TO FEBRUARY 29, 1968, IN THE ABSENCE OF ANY CORRECTION OF HIS RECORD BY THE SECRETARY OF THE NAVY ACTING THROUGH THE BOARD FOR CORRECTION OF NAVAL RECORDS.

IT LONG HAS BEEN HELD THAT THE MERE FACT THAT ORDERS ISSUED BY COMPETENT AUTHORITY REDUCING AN ENLISTED MAN IN GRADE ARE NOT ISSUED IN STRICT CONFORMITY WITH ADMINISTRATIVE REGULATIONS DOES NOT INVALIDATE SUCH ORDERS. 15 COMP. GEN. 935. ALSO, IT IS WELL SETTLED THAT AN ENLISTED MAN IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THE GRADE ACTUALLY HELD BY HIM. 15 COMP. GEN. 935; 36 ID. 137; 41 ID. 703.

ARTICLE C-7211 (3) (B), BUREAU OF NAVAL PERSONNEL MANUAL, PROVIDES THAT SUBJECT TO THE REQUIREMENTS IN SUBPARAGRAPH (A) (MENTIONED ABOVE), COMMANDING OFFICERS ARE AUTHORIZED TO EFFECT REDUCTION IN GRADE (ONE GRADE ONLY) OF PERSONNEL IN PAY GRADE E-6 OR BELOW BY MAKING A SERVICE RECORD ENTRY SHOWING THE REASON WHY THE MEMBER IS NOT QUALIFIED FOR THE RATE FROM WHICH REDUCED. THE REASONS FOR REDUCTIONS SET FORTH IN SUBPARAGRAPH (A) INCLUDE INCOMPETENCE.

WHILE THE COMMANDING OFFICER DID NOT FOLLOW EXACTLY THE PROVISIONS OF THE REGULATION RELATING TO THE EVALUATION PERIODS TO BE USED IN MAKING HIS DETERMINATION THAT THE MEMBER WAS NOT QUALIFIED FOR THE HIGHER RATE, THAT DETERMINATION WAS BASED ON CONSECUTIVE MARKING PERIODS AND THE ENTRY IN THE MEMBER'S PAY RECORD EFFECTING THE REDUCTION WAS MADE BY COMPETENT AUTHORITY. ALSO, THE MEMBER ACTUALLY SERVED IN THE LOWER RATE FOR THE PERIOD JUNE 16, 1966, TO FEBRUARY 29, 1968, AND 37 U.S.C. 204 (A) PROVIDES THAT MEMBERS ON ACTIVE DUTY ARE ENTITLED TO THE PAY OF GRADE TO WHICH ASSIGNED.

WHILE THE COURTS HAVE AWARDED BACK PAY IN CASES INVOLVING DISCHARGE OF MILITARY MEMBERS WHERE PRESCRIBED PROCEDURES WERE NOT FULLY COMPLIED WITH, IN THOSE CASES THERE WAS INVOLVED THE STIGMA ATTACHED TO THE TYPE OF DISCHARGE AND ITS ADVERSE EFFECT ON THE MEMBER RETURNING TO CIVILIAN LIFE. SEE FOR EXAMPLE, CLACKUM V UNITED STATES, 148 CT. CL. 404 (1960), ID. 161 CT. CL. 34 (1963). WE ARE NOT AWARE OF ANY COURT DECISION AWARDING BACK PAY TO AN ENLISTED MAN REDUCED IN GRADE BY REASON OF INEFFICIENCY. BACK PAY FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE REINSTATED OR RESTORED BY CORRECTIVE PERSONNEL ACTION TO A POSITION FROM WHICH THEIR REMOVAL WAS UNJUSTIFIED OR UNWARRANTED IS AUTHORIZED BY STATUTE. SEE 5 U.S.C. 5591, ET SEQ. NO SUCH STATUTORY AUTHORIZATION HAS BEEN ENACTED WITH RESPECT TO ENLISTED MEN WHO ARE DETERMINED TO HAVE BEEN ERRONEOUSLY REDUCED IN GRADE.

IN THE CIRCUMSTANCES, WE BELIEVE THE MATTER IS TOO DOUBTFUL FOR US TO CONCLUDE, ON THE PRESENT RECORD, THAT YOCUM IS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FOR THE PERIOD INVOLVED. SEE B 70185, DATED MARCH 22, 1948.

SECTION 1552, TITLE 10, U.S.C. PROVIDES THAT THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES AND THE MEMBER BECOMES ENTITLED TO ALL THE BENEFITS DUE ON THE BASIS OF THE FACTS AS SHOWN IN THE CORRECTION. 42 COMP. GEN. 582.

IF IT IS BELIEVED THAT THE FAILURE TO COMPLY WITH THE REGULATIONS WHEN THE MEMBER'S RATE WAS REDUCED CONSTITUTES AN ERROR OR INJUSTICE CONTEMPLATED BY 10 U.S.C. 1552, AN APPROPRIATE CORRECTION OF THE RECORDS COULD AFFORD A BASIS FOR THE PAYMENT IN QUESTION.