B-39358, FEB 12, 1944

B-39358: Feb 12, 1944

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IN WHICH YOUR REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THERE IS FORWARDED WITH YOUR LETTER AN EXTRACT FROM SPECIAL ORDERS NO. 129. IS HEREBY CONFIRMED AND MADE A MATTER OF RECORD: TO GRADE OF EFFECTIVE T/5 STANLEY R. SGT 27 JULY "5. * * * * * THE MATTER OF APPOINTMENT AND REDUCTION OF NONCOMMISSIONED OFFICERS OF THE ARMY IS ONE OF REGULATIONS. 3 COMP.GEN. 261. ARMY REGULATIONS PERTINENT TO THE PRESENT QUESTION ARE QUOTED BELOW. OR EXPRESSED WISHES OF THE COMMANDING OFFICER WILL BE CONSIDERED AS HAVING THE FORCE OF ORDERS. VERBAL ORDERS OR INSTRUCTIONS INVOLVING DIRECTLY OR INDIRECTLY THE EXPENDITURE OF PUBLIC MONEY WILL BE REDUCED TO WRITING.". THE EFFECTIVE DATE OF AN APPOINTMENT IS THE DATE OF THE INSTRUMENT OF APPOINTMENT.

B-39358, FEB 12, 1944

PRECIS-UNAVAILABLE

W. G. TOLLEFSON, CAPTAIN, FINANCE DEPARTMENT:

WAR DEPARTMENT.

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 1, 1943, IN WHICH YOUR REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF STANLEY R. LIVINGSTON, SERGEANT, SERVICE COMPANY, 172D INFANTRY, AND REPRESENTING THE DIFFERENCE BETWEEN PAY OF A TECHNICIAN, FIFTH GRADE, AND PAY OF A SERGEANT FOR THE PERIOD FROM JULY 27, 1943, TO AUGUST 13, 1943.

THERE IS FORWARDED WITH YOUR LETTER AN EXTRACT FROM SPECIAL ORDERS NO. 129, HEADQUARTERS 172D INFANTRY, DATED AUGUST 14, 1943, AS FOLLOWS:

"4. VO CO PROMOTING THE FOLLOWING NAMED EM TO GR INDICATED, IS HEREBY CONFIRMED AND MADE A MATTER OF RECORD:

TO GRADE OF EFFECTIVE T/5 STANLEY R. LIVINGSTON 20152294 SERV CO. SGT 27 JULY "5. * * * * *

THE MATTER OF APPOINTMENT AND REDUCTION OF NONCOMMISSIONED OFFICERS OF THE ARMY IS ONE OF REGULATIONS. 3 COMP.GEN. 261. ARMY REGULATIONS PERTINENT TO THE PRESENT QUESTION ARE QUOTED BELOW.

PARAGRAPH 15, AR 310-50, PROVIDES:

"ORAL ORDERS.-- THE ORAL ORDERS, INSTRUCTIONS, OR EXPRESSED WISHES OF THE COMMANDING OFFICER WILL BE CONSIDERED AS HAVING THE FORCE OF ORDERS, BUT VERBAL ORDERS OR INSTRUCTIONS INVOLVING DIRECTLY OR INDIRECTLY THE EXPENDITURE OF PUBLIC MONEY WILL BE REDUCED TO WRITING."

PARAGRAPH 2A, AR 615-5, RELATIVE TO THE APPOINTMENT OF NONCOMMISSIONED OFFICERS AND PRIVATES, FIRST CLASS, PROVIDES:

"EFFECTIVE DATE.-- A. THE EFFECTIVE DATE OF AN APPOINTMENT IS THE DATE OF THE INSTRUMENT OF APPOINTMENT. APPOINTMENTS WILL NOT BE ANTEDATED."

PARAGRAPH 6A, AR 615-5, PROVIDES:

"WHO MAY APPOINT.-- A. EXCEPT AS PRESCRIBED IN B, C, D, E, AND F BELOW THE APPOINTING AUTHORITY FOR NONCOMMISSIONED OFFICERS AND PRIVATES, FIRST CLASS, IS SHOWN BELOW:

TABLE OMITTED

1. EXCEPT DETACHED UNITS AS INDICATED."

LIVINGSTON WAS APPOINTED SERGEANT ON JULY 27, 1943, BY THE ORAL ORDERS OF AN OFFICER HAVING AUTHORITY TO MAKE SUCH APPOINTMENT. PARAGRAPH 6, ABOVE. THESE ORAL ORDERS, LATER CONFIRMED IN WRITING, HAVE THE FORCE OF WRITTEN ORDERS. PARAGRAPH 15, AR 310-50, SUPRA.

THE "DATE OF THE INSTRUMENT OF APPOINTMENT" REFERRED TO IN PARAGRAPH 2A, AR 615-5, AS THE EFFECTIVE DATE OF APPOINTMENT APPARENTLY HAS REFERENCE ONLY TO THOSE CASES WHERE NO OTHER EFFECTIVE DATE IS MENTIONED; OTHERWISE AN ORDER OF APPOINTMENT EXPRESSLY MADE EFFECTIVE FROM A DATE SUBSEQUENT TO THE DATE OF THE INSTRUMENT WOULD BECOME OPERATIVE AT A DATE EARLIER THAN CONTEMPLATED BY THE ORDERS. IT REASONABLY APPEARS THAT SAID PARAGRAPH, MEANS THAT THE EFFECTIVE DATE OF AN APPOINTMENT IS THE DATE THEREOF AS SHOWN IN A WRITTEN INSTRUMENT, AND THAT SUCH DATE CANNOT BE EARLIER THAN THE DATE ON WHICH A VERBAL APPOINTMENT, CONFIRMED BY THE WRITTEN INSTRUMENT, WAS ACTUALLY MADE.

LIVINGSTON'S ORAL APPOINTMENT, ACTUALLY MADE ON JULY 27, 1943, WAS CONFIRMED WITHIN A REASONABLE TIME, AND HE IS ENTITLED TO PAY OF THE GRADE TO WHICH APPOINTED FROM THAT DATE.

PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.