B-179229, MAR 8, 1974

B-179229: Mar 8, 1974

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WHO WAS ENTITLED TO BE PROMOTED FROM LIEUTENANT TO CAPTAIN BY REASON OF HAVING COMPLETED THE REQUISITE YEARS OF SERVICE FOR MANDATORY CONSIDERATION FOR SUCH PROMOTION. WHOSE PROMOTION WAS NOT ACCOMPLISHED AND FORMALLY ANNOUNCED UNTIL SOMETIME LATER. IS NOT ENTITLED TO THE PAY AND ALLOWANCES OF A CAPTAIN UNTIL THE DATE THE PROMOTION WAS ANNOUNCED IN THE FORMAL ORDER. GRANADOS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15. THE RECORD SHOWS THAT YOU WERE PROMOTED FROM FIRST LIEUTENANT TO CAPTAIN IN THE UNITED STATES ARMY RESERVE EFFECTIVE AUGUST 23. PROVIDES IN PERTINENT PART: "(A) AN OFFICER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR ARMY RESERVE WHO IS PROMOTED AS A RESERVE IS CONSIDERED TO HAVE ACCEPTED HIS PROMOTION ON THE DATE OF THE ORDER ANNOUNCING IT.

B-179229, MAR 8, 1974

ARMY RESERVE OFFICER, WHO WAS ENTITLED TO BE PROMOTED FROM LIEUTENANT TO CAPTAIN BY REASON OF HAVING COMPLETED THE REQUISITE YEARS OF SERVICE FOR MANDATORY CONSIDERATION FOR SUCH PROMOTION, BUT WHOSE PROMOTION WAS NOT ACCOMPLISHED AND FORMALLY ANNOUNCED UNTIL SOMETIME LATER, IS NOT ENTITLED TO THE PAY AND ALLOWANCES OF A CAPTAIN UNTIL THE DATE THE PROMOTION WAS ANNOUNCED IN THE FORMAL ORDER. CITING 26 COMP. GEN. 475 (1947) AND 29 COMP. GEN. 188 (1949).

TO CAPT. ANTONIO F. GRANADOS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1973, REQUESTING REVIEW OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED FEBRUARY 6, 1973, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY OF A FIRST LIEUTENANT AND THAT OF A CAPTAIN FOR THE PERIOD MAY 30, 1969, TO AUGUST 23, 1970, INCIDENT TO THE DELAY IN YOUR PROMOTION TO THE GRADE OF CAPTAIN.

THE RECORD SHOWS THAT YOU WERE PROMOTED FROM FIRST LIEUTENANT TO CAPTAIN IN THE UNITED STATES ARMY RESERVE EFFECTIVE AUGUST 23, 1970, PURSUANT TO ORDERS ISSUED BY THE DEPARTMENT OF THE ARMY DATED DECEMBER 15, 1970. THE ORDERS ALSO STATED THAT YOUR TIME IN GRADE TO THE NEXT HIGHER GRADE WOULD BE COMPUTED FROM MAY 30, 1969, THE DATE YOU APPARENTLY COMPLETED THE REQUIRED SERVICE FOR MANDATORY CONSIDERATION FOR PROMOTION.

SECTION 3394 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART:

"(A) AN OFFICER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR ARMY RESERVE WHO IS PROMOTED AS A RESERVE IS CONSIDERED TO HAVE ACCEPTED HIS PROMOTION ON THE DATE OF THE ORDER ANNOUNCING IT, UNLESS HE EXPRESSLY DECLINES THE PROMOTION. HE IS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THAT DATE, UNLESS ENTITLED TO THEM FROM AN EARLIER DATE UNDER ANOTHER PROVISION OF LAW."

UNDER THE STATUTORY PROVISION QUOTED ABOVE THE PAY OF THE GRADE TO WHICH AN OFFICER IS PROMOTED BEGINS ON THE DATE OF THE FORMAL ANNOUNCEMENT OF SUCH PROMOTION WHICH IN YOUR CASE WAS DECEMBER 15, 1970, UNLESS AUTHORIZED PAY FROM AN EARLIER DATE BY SOME OTHER PROVISION OF LAW, REGARDLESS OF THE FACT THAT HE MAY HAVE BEEN ELIGIBLE FOR THE PROMOTION AT AN EARLIER DATE. SEE 26 COMP. GEN. 475 (1947); 29 ID. 188 (1949).

IN THIS REGARD SECTION 3363 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART:

"(D) A PROMOTION UNDER THIS CHAPTER (CHAPTER 337 OF TITLE 10, UNITED STATES CODE) MAY BE EFFECTIVE BEFORE, ON, OR AFTER THE DATE ON WHICH IT IS MADE. THE OFFICER CONCERNED IS ENTITLED TO PAY, ALLOWANCES, AND ANY OTHER BENEFITS PROVIDED BY LAW FOR THE GRADE TO WHICH HE IS PROMOTED FROM THE EFFECTIVE DATE OF THE PROMOTION."

THE EFFECTIVE DATE OF YOUR PROMOTION IS SHOWN IN THE FORMAL ANNOUNCEMENT AS AUGUST 23, 1970, AND IT WOULD APPEAR THAT YOU HAVE BEEN PAID AS A CAPTAIN FROM THAT DATE. OUR OFFICE IS NOT AWARE OF ANY OTHER PROVISION OF LAW WHICH WOULD ENTITLE YOU TO THE PAY OF THE HIGHER GRADE TO WHICH YOU WERE PROMOTED (CAPTAIN) OTHER THAN THE EFFECTIVE DATE IN THE ORDERS ANNOUNCING SUCH PROMOTION.

IN YOUR REQUEST FOR REVIEW YOU TAKE ISSUE WITH THE APPLICATION OF A CASE CITED IN THE FEBRUARY 6 SETTLEMENT. THAT CASE, ROBERTSON V. SICHEL, 127 U.S. 507 (1888) STANDS FOR THE PROPOSITION THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTS OF ITS AGENTS. ITS APPLICATION IN THE PRESENT SITUATION IS THAT THE STATUTES HEREIN DISCUSSED PRESCRIBE WHEN THE EFFECTIVE DATE OF YOUR PROMOTION CAN BE AND THAT DATE CANNOT BE ALTERED BY THE FACT THAT THERE MAY HAVE BEEN ADMINISTRATIVE ERROR WHICH DELAYED CONSIDERATION OF YOUR PROMOTION.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN A FIRST LIEUTENANT AND CAPTAIN FOR THE PERIOD MAY 30, 1969, TO AUGUST 23, 1970, IS SUSTAINED.