B-27275, AUGUST 10, 1942, 22 COMP. GEN. 133

B-27275: Aug 10, 1942

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PAY - HIGHER COMMAND IN TIME OF WAR AN ARMY OFFICER WHO IS ASSIGNED TO AN ORGANIZATION UNDER ORDERS DETAILING HIM TO COMMAND THEREOF AND UPON WHOM. THE COMMAND WOULD HAVE AUTOMATICALLY DEVOLVED. BY REASON OF HIS BEING THE SENIOR OFFICER PRESENT IS NOT ENTITLED TO PAY OF A HIGHER RANK UNDER SECTION 7 OF THE ACT OF APRIL 26. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPTAIN ROBERT M. IS AS FOLLOWS: 2. IS RELIEVED FROM ASSIGNMENT TO BATTERY D. IS ASSIGNED TO HQ. THE NECESSARY TRANSFER OF FUNDS AND PROPERTY WILL BE EXPEDITED. WAS DETAILED TO AND IN COMMAND OF HEADQUARTERS BATTERY AND AMMUNITION TRAIN. THERE WAS NO SENIOR OFFICER OF APPROPRIATE GRADE AVAILABLE TO SERVE AS BATTERY COMMANDER OF THAT ORGANIZATION.

B-27275, AUGUST 10, 1942, 22 COMP. GEN. 133

PAY - HIGHER COMMAND IN TIME OF WAR AN ARMY OFFICER WHO IS ASSIGNED TO AN ORGANIZATION UNDER ORDERS DETAILING HIM TO COMMAND THEREOF AND UPON WHOM, AFTER ASSIGNMENT, THE COMMAND WOULD HAVE AUTOMATICALLY DEVOLVED, WITHOUT THE NECESSITY FOR THE ISSUANCE OF ORDERS, BY REASON OF HIS BEING THE SENIOR OFFICER PRESENT IS NOT ENTITLED TO PAY OF A HIGHER RANK UNDER SECTION 7 OF THE ACT OF APRIL 26, 1898, WHICH PROVIDES THAT IN TIME OF WAR AN OFFICER SERVING WITH TROOPS OPERATING AGAINST AN ENEMY WHO SHALL EXERCISE, UNDER ASSIGNMENT BY COMPETENT AUTHORITY, A COMMAND ABOVE THAT PERTAINING TO HIS GRADE SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO COL. HERBERT BALDWIN, U.S. ARMY, AUGUST 10, 1942:

THERE HAS BEEN RECEIVED BY SECOND ENDORSEMENT OF JULY 6, 1942, YOUR LETTER OF MAY 21, 1942, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPTAIN ROBERT M. JAAP, SERIAL NO. 10-347112, SIXTY-FOURTH COAST ARTILLERY (AA), IN THE AMOUNT OF $157.50, COVERING THE DIFFERENCE IN PAY BE THAT AUTHORIZED FOR A FIRST LIEUTENANT AND THAT AUTHORIZED FOR A CAPTAIN WITH THE SAME LENGTH OF SERVICE FOR THE PERIOD DECEMBER 7, 1941, TO APRIL 21, 1942.

PARAGRAPH 2, SPECIAL ORDERS NO. 91, HEADQUARTERS SIXTY-FOURTH COAST ARTILLERY (AA), FORT SHAFTER, T.H., DATED SEPTEMBER 8, 1941, IS AS FOLLOWS:

2. ST LIEUTENANT ROBERT M. JAPP (0-347112), 64TH CA ( AA), IS RELIEVED FROM ASSIGNMENT TO BATTERY D, 64TH CA ( AA), AND IS ASSIGNED TO HQ. BATTERY AND AMMUNITION TRAIN, ST BN. 64TH CA ( AA), AND DETAILED TO COMMAND HQ. BATTERY AND AMMUNITION TRAIN, ST BN. THE NECESSARY TRANSFER OF FUNDS AND PROPERTY WILL BE EXPEDITED.

THERE HAS BEEN FURNISHED ALSO A CERTIFICATE DATED MAY 14, 1942, AS FOLLOWS:

CERTIFICATE

I CERTIFY THAT ROBERT M. JAAP (0-347112), 64TH COAST ARTILLERY ( AA), WAS DETAILED TO AND IN COMMAND OF HEADQUARTERS BATTERY AND AMMUNITION TRAIN, ST BATTALION, 64TH COAST ARTILLERY ( AA), FORT SHAFTER, T.H., FROM DECEMBER 7, 1941 TO APRIL 21, 1942, IN THE GRADE OF FIRST LIEUTENANT.

I FURTHER CERTIFY THAT FROM SEPTEMBER 8, 1941, UNTIL APRIL 21, 1942, THERE WAS NO SENIOR OFFICER OF APPROPRIATE GRADE AVAILABLE TO SERVE AS BATTERY COMMANDER OF THAT ORGANIZATION.

(S) H. LER. MULLER,

H. LER. MULLER,

COLONEL, 64TH C.A. ( AA),

COMMANDING.

SECTION 7 OF THE ACT OF APRIL 26, 1898, 30 STAT. 365, PROVIDES:

THAT IN TIME OF WAR EVERY OFFICER SERVING WITH TROOPS OPERATING AGAINST AN ENEMY WHO SHALL EXERCISE, UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY, A COMMAND ABOVE THAT PERTAINING TO HIS GRADE, SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE GRADE APPROPRIATE TO THE COMMAND SO EXERCISED: PROVIDED, THAT A RATE OF PAY EXCEEDING THAT OF A BRIGADIER GENERAL SHALL NOT BE PAID IN ANY CASE BY REASON OF SUCH ASSIGNMENT: * * *

BY ITS EXPRESS TERMS, THIS STATUTE IS OPERATIVE ONLY WHEN THE COMMAND EXERCISED IS "UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY," AND IT HAS BEEN HELD THAT THE ORDERS CONTEMPLATED BY THE ACT ARE ORDERS NECESSARY IN ORDER THAT THE HIGHER COMMAND MAY BE ASSUMED, AND WITHOUT WHICH THE ASSUMPTION OF SUCH COMMAND WOULD BE UNAUTHORIZED. THE ACT DOES NOT AUTHORIZE THE PAY OF A HIGHER RANK WHERE A COMMAND TEMPORARILY DEVOLVES UPON AN OFFICER WITHOUT A NECESSARY ORDER OF ASSIGNMENT. SEE HUMPHREYS V. UNITED STATES, 38 C.1CLS. 689; UNITED STATES V. MITCHELL, 205 U.S. 161.

PARAGRAPH 6A, ARMY REGULATIONS 600-20 PROVIDES:

IN THE EVENT OF THE DEATH, DISABILITY, OR TEMPORARY ABSENCE OF THE HEAD OR THE PERSON IN COMMAND OR IN CHARGE OF ANY ELEMENT OF THE WAR DEPARTMENT OR OF THE ARMY, THE NEXT SENIOR PRESENT AND ON DUTY THEREIN OR THEREWITH AND NOT INELIGIBLE UNDER THE PROVISIONS OF PARAGRAPH 3 AND 4, WHEREVER HE MAY BE STATIONED, WILL, EXCEPT AS OTHERWISE ORDERED OR REQUIRED, EXERCISE THE FUNCTIONS OF SUCH HEAD, OR PERSON IN COMMAND OR IN CHARGE, UNTIL RELIEVED BY PROPER AUTHORITY.

THE OFFICER'S ORDERS RELIEVED HIM FROM ASSIGNMENT WITH THE ORGANIZATION TO WHICH HE WAS THEN ATTACHED AND ASSIGNED HIM TO HEADQUARTERS BATTERY AND AMMUNITION TRAIN, FIRST BATTALION. THESE ORDERS CONSTITUTED A PERMANENT ASSIGNMENT TO THE LATTER ORGANIZATION, AND IT IS CERTIFIED THAT THERE WAS NO SENIOR OFFICER AVAILABLE TO SERVE AS COMMANDER THEREOF. BEING A MEMBER OF THE ORGANIZATION OVER WHICH HE EXERCISED COMMAND, AND BEING THE SENIOR OFFICER PRESENT IN SUCH ORGANIZATION, THAT PORTION OF HIS ORDERS DETAILING HIM TO COMMAND THE ORGANIZATION WAS SUPERFLUOUS AND UNNECESSARY. THE COMMAND DEVOLVED UPON HIM BY REASON OF THE FACT THAT HE WAS THE SENIOR OFFICER. SEE 26 COMP. DEC. 1074. ACCORDINGLY, THE COMMAND WAS NOT EXERCISED "UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY" WITHIN THE MEANING OF THE ACT OF APRIL 26, 1898, AND THEREFORE, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH WILL BE RETAINED IN THIS OFFICE.