B-28580, OCTOBER 7, 1942, 22 COMP. GEN. 328

B-28580: Oct 7, 1942

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WAS ORDERED TO ACTIVE DUTY AS A COLONEL. SUCH ORDERS WERE SUBSEQUENTLY AMENDED TO SHOW HIS RANK AS MAJOR GENERAL EFFECTIVE FROM THE EFFECTIVE DATE OF THE ORIGINAL ORDERS. THE OFFICER IS NOT ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF THE HIGHER GRADE PRIOR TO THE DATE OF THE AMENDING ORDERS. AS FOLLOWS: ATTACHED HERETO IS A VOUCHER IN FAVOR OF MAJOR GENERAL JAMES E. GENERAL FECHET WAS PLACED ON ACTIVE DUTY WITH THE RANK OF COLONEL EFFECTIVE MARCH 15. WAS AMENDED TO PLACE HIM ON ACTIVE DUTY WITH THE RANK OF MAJOR GENERAL EFFECTIVE MARCH 15. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER GENERAL FECHET IS ENTITLED TO THE PAY OF MAJOR GENERAL DURING THE PERIOD IN QUESTION DUE TO THE FACT THAT HIS ORIGINAL ORDERS PLACED HIM ON ACTIVE DUTY AS A COLONEL.

B-28580, OCTOBER 7, 1942, 22 COMP. GEN. 328

PAY - ACTIVE DUTY - RETIRED ARMY OFFICERS WHERE A RETIRED ARMY OFFICER, WHO HAD BEEN RETIRED AS A COLONEL, AFTER HAVING SERVED AS CHIEF OF THE AIR CORPS, WITH THE RANK, PAY, AND ALLOWANCES OF A MAJOR GENERAL AS AUTHORIZED BY SECTION 4C OF THE NATIONAL DEFENSE ACT, WAS ORDERED TO ACTIVE DUTY AS A COLONEL, AND SUCH ORDERS WERE SUBSEQUENTLY AMENDED TO SHOW HIS RANK AS MAJOR GENERAL EFFECTIVE FROM THE EFFECTIVE DATE OF THE ORIGINAL ORDERS, THE OFFICER IS NOT ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF THE HIGHER GRADE PRIOR TO THE DATE OF THE AMENDING ORDERS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. CARL WITCHER, U.S. ARMY, OCTOBER 7, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 15, 1942 (RECEIVED BY ENDORSEMENT OF AUGUST 27, 1942), AS FOLLOWS:

ATTACHED HERETO IS A VOUCHER IN FAVOR OF MAJOR GENERAL JAMES E. FECHET, U.S. ARMY RETIRED, IN THE AMOUNT OF $958.32, COVERING THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN A COLONEL AND MAJOR GENERAL ON ACTIVE DUTY FOR THE PERIOD MARCH 15, 1942 TO JULY 22, 1942, WHICH HAS BEEN PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

BY PARAGRAPH 1, SPECIAL ORDERS 62, DATED MARCH 10, 1942, GENERAL FECHET WAS PLACED ON ACTIVE DUTY WITH THE RANK OF COLONEL EFFECTIVE MARCH 15, 1942. BY LETTER ORDERS, DATED JULY 23, 1942, THE ORDER OF MARCH 10, 1942, WAS AMENDED TO PLACE HIM ON ACTIVE DUTY WITH THE RANK OF MAJOR GENERAL EFFECTIVE MARCH 15, 1942.

THE UNDERSIGNED IS IN DOUBT AS TO WHETHER GENERAL FECHET IS ENTITLED TO THE PAY OF MAJOR GENERAL DURING THE PERIOD IN QUESTION DUE TO THE FACT THAT HIS ORIGINAL ORDERS PLACED HIM ON ACTIVE DUTY AS A COLONEL, AND YOUR DECISION IN THE MATTER IS RESPECTFULLY REQUESTED.

PARAGRAPH 1, SPECIAL ORDERS NO. 62, DATED WAR DEPARTMENT, WASHINGTON, D.C., MARCH 10, 1942, IS AS FOLLOWS:

1. DP MAJ GEN JAMES E. FECHET 101139 USA RET IS PLACED ON AD WITH RANK OF COL THE RANK HELD UPON RETIREMENT EFFECTIVE 15 MAR 1942 IS THEN ASGD TO HQ ARMY AIR FORCES, WASHINGTON, DC. WP FR HIS HOME, LAGUNA BEACH, CALIF., TO WASHINGTON, DC. MAJ GEN FECHET WILL RANK AS COL FR 30 SEPT 1939. TDN FD 1402 P 1-06, 15-06 A 10410-2.

LETTER ORDERS OF JULY 23, 1942, FROM THE ADJUTANT GENERAL'S OFFICE ARE AS FOLLOWS:

SUBJECT: AMENDMENT OF ORDERS

THRU: COMMANDING GENERAL, ARMY AIR FORCES.

TO: MAJOR GENERAL JAMES E. FECHET 101139, USA.

BY DIRECTION OF THE PRESIDENT, PARAGRAPH 1, SPECIAL ORDERS 62, WAR DEPARTMENT, 1942, PERTAINING TO MAJOR GENERAL JAMES E. FECHET 101139, UNITED STATES ARMY, RETIRED, IS AMENDED TO READ AS FOLLOWS: MAJOR GENERAL JAMES E. FECHET 101139, UNITED STATES ARMY, RETIRED, IS PLACED ON ACTIVE DUTY EFFECTIVE MARCH 15, 1942, AND IS THEN ASSIGNED TO HEADQUARTERS, ARMY AIR FORCES, WASHINGTON, D.C. HE WILL PROCEED FROM HIS HOME, LAGUNA BEACH, CALIFORNIA, TO WASHINGTON, D.C., AND REPORT FOR DUTY. MAJOR GENERAL FECHET WILL RANK FROM MARCH 15, 1938. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. FD 1401 P 1-06, 15-06 A 10410-2.

BY ORDER OF THE SECRETARY OF WAR:

(S) J. A. ULIO,

J. A. ULIO,

MAJOR GENERAL,

THE ADJUTANT GENERAL.

THE ARMY REGISTER SHOWS THAT GENERAL FECHET WAS APPOINTED SECOND LIEUTENANT JULY 25, 1900, AND ACCEPTED AUGUST 10, 1900; HE WAS SUCCESSIVELY PROMOTED, BECOMING A LIEUTENANT COLONEL JULY 1, 1920. HE WAS APPOINTED ASSISTANT TO THE CHIEF OF AIR SERVICE, WITH THE RANK OF BRIGADIER GENERAL, APRIL 25, 1927, AND ACCEPTED APRIL 25, 1927. HE WAS APPOINTED CHIEF OF AIR CORPS, WITH THE RANK OF MAJOR GENERAL, DECEMBER 14, 1927, AND ACCEPTED DECEMBER 20, 1927. HE WAS PROMOTED TO COLONEL JULY 17, 1929. HE WAS RELIEVED AS MAJOR GENERAL, CHIEF OF AIR CORPS, DECEMBER 19, 1931. HE WAS RETIRED AT HIS OWN REQUEST AFTER 30 YEARS' SERVICE, WITH THE RANK OF MAJOR GENERAL, ON DECEMBER 31, 1931.

GENERAL FECHET'S APPOINTMENTS AS ASSISTANT TO THE CHIEF OF AIR SERVICE, AND AS CHIEF OF AIR CORPS, AND HIS RETIREMENT WITH RANK OF MAJOR GENERAL WERE IN ACCORDANCE WITH SECTION 4C OF THE NATIONAL DEFENSE ACT, ADDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 762, AS FOLLOWS:

* * * EXCEPT AS OTHERWISE HEREIN PRESCRIBED, CHIEFS AND ASSISTANTS TO THE CHIEFS OF THE SEVERAL BRANCHES SHALL HEREAFTER BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FOR A PERIOD OF FOUR YEARS, AND SUCH APPOINTMENTS SHALL NOT CREATE VACANCIES. * * * ANY OFFICER WHO SHALL HAVE SERVED FOUR YEARS AS CHIEF OF A BRANCH, AND WHO MAY SUBSEQUENTLY BE RETIRED SHALL BE RETIRED WITH THE RANK, PAY AND ALLOWANCES AUTHORIZED BY LAW FOR THE GRADE HELD BY HIM AS SUCH CHIEF. * * * SEE TITLE 10 U.S.C. SECTIONS 6 AND 1026.

SECTION 13-A OF THE SAME ACT, 41 STAT. 768 (10 U.S.C. 291), PROVIDES THAT THE AIR CORPS SHALL CONSIST OF, AMONG OTHERS,"ONE CHIEF OF THE AIR CORPS, WITH THE RANK OF MAJOR GENERAL.' UPON TERMINATION OF HIS SERVICE AS CHIEF OF AIR CORPS, DECEMBER 19, 1931 (OR POSSIBLY DECEMBER 13, 1931, 12 COMP. GEN. 641; 37 OP. ATTY. GEN. 282) GENERAL FECHET REVERTED TO THE RANK OF COLONEL. HE WAS RETIRED AS A COLONEL WITH THE RANK, PAY, AND ALLOWANCES OF A MAJOR GENERAL. BUT HIS OFFICE REMAINED THAT OF COLONEL. SEE WOOD V. UNITED STATES, 15 C.1CLS. 151, 107 U.S. 414.

AS GENERAL FECHET HELD THE OFFICE OF COLONEL IT WAS COMPETENT TO CALL HIM TO ACTIVE DUTY IN THAT GRADE. THIS WAS DONE BY THE ORDERS OF MARCH 10, 1942, SUPRA. RIGHTS TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A COLONEL VESTED IN GENERAL FECHET UPON HIS REPORTING FOR DUTY UNDER SUCH ORDERS. LATER ORDERS CAN HAVE NO RETROACTIVE OPERATION TO CHANGE THE RIGHTS THUS VESTED. THE ORDERS OF JULY 23, 1942, ARE EFFECTIVE ONLY FROM THE DATE ISSUED.

ACCORDINGLY, GENERAL FECHET HAS BEEN PROPERLY CREDITED WITH THE ACTIVE DUTY PAY AND ALLOWANCES OF A COLONEL DURING THE PERIOD OF HIS CLAIM, AND YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE SUBJECT VOUCHER, REPRESENTING ADDITIONAL PAY AND ALLOWANCES FOR SUCH PERIOD. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.