B-51572, MARCH 4, 1946, 25 COMP. GEN. 615

B-51572: Mar 4, 1946

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- WHO EXERCISED A COMMAND ABOVE THAT RELATED TO HIS GRADE WHILE THE BATTALION WAS STATIONED IN THE UNITED KINGDOM ESTABLISHING AND MAINTAINING COMMUNICATIONS FOR AN AIR COMMAND ENGAGED IN FIGHTING THE ENEMY IS TO BE REGARDED AS "SERVING WITH TROOPS OPERATING AGAINST AN ENEMY" WITHIN THE MEANING OF SECTION 7 OF THE ACT OF APRIL 26. EVEN THOUGH THE UNITED KINGDOM WAS EXCLUDED FROM THE CAMPAIGNS AND BATTLE AREAS BY WAR DEPARTMENT GENERAL ORDERS NO. 75. THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF MARCH 24. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. WAS IN COMMAND OF THAT BATTALION. IS MADE OF THE APPOINTMENT OF CAPT. THIS HQ AS READS: "EFFECTIVE 15 JAN 1944" IS AMENDED TO READ: EFFECTIVE 8 JAN 1944.

B-51572, MARCH 4, 1946, 25 COMP. GEN. 615

PAY - HIGHER COMMAND IN TIME OF WAR AN ARMY OFFICER ASSIGNED TO A SIGNAL BATTALION OF THE SIGNAL CORPS-- A COMBATANT ARM OF THE ARMY--- WHO EXERCISED A COMMAND ABOVE THAT RELATED TO HIS GRADE WHILE THE BATTALION WAS STATIONED IN THE UNITED KINGDOM ESTABLISHING AND MAINTAINING COMMUNICATIONS FOR AN AIR COMMAND ENGAGED IN FIGHTING THE ENEMY IS TO BE REGARDED AS "SERVING WITH TROOPS OPERATING AGAINST AN ENEMY" WITHIN THE MEANING OF SECTION 7 OF THE ACT OF APRIL 26, 1898, SO AS TO BE ENTITLED THEREUNDER TO THE PAY AND ALLOWANCES OF THE GRADE APPROPRIATE TO THE HIGHER COMMAND SO EXERCISED, EVEN THOUGH THE UNITED KINGDOM WAS EXCLUDED FROM THE CAMPAIGNS AND BATTLE AREAS BY WAR DEPARTMENT GENERAL ORDERS NO. 75. IN VIEW OF THE EXPRESS DELEGATION OF AUTHORITY TO CERTAIN ARMY COMMANDERS TO DESIGNATE "BY DIRECTION OF THE PRESIDENT" A JUNIOR OF SEVERAL OFFICERS OF THE SAME GRADE WITHIN A COMMAND AS COMMANDER THEREOF WITHOUT REGARD TO RELATIVE SENIORITY, WRITTEN ORDERS AMENDED TO SHOW THE DATE OF PRIOR VERBAL ORDERS AS THE EFFECTIVE DATE A JUNIOR OFFICER RECEIVED SUCH A DESIGNATION MAY BE CONSIDERED AS "ORDERS ISSUED BY COMPETENT AUTHORITY" WITHIN THE MEANING OF SECTION 7 OF THE ACT OF APRIL 26, 1898, AUTHORIZING THE PAY AND ALLOWANCES OF A HIGHER GRADE FOR EXERCISING A HIGHER COMMAND IN TIME OF WAR, EVEN THOUGH SUCH AMENDING ORDERS DID NOT CONTAIN THE STATEMENT "BY DIRECTION OF THE PRESIDENT.' THE PROVISION IN PARAGRAPH 3 (B) 2 (A) OF SECTION 1, WAR DEPARTMENT TECHNICAL MANUAL 14-501, THAT "ADVANCEMENT OF PAY PERIOD MAY NEVER GO BEYOND THE PAY PERIOD NEXT HIGHER TO THAT CORRESPONDING TO THE OFFICER'S GRADE" HAS REFERENCE TO AUTOMATIC ADVANCEMENTS IN PAY PERIODS BY REASON OF LENGTH OF SERVICE AS PRESCRIBED BY THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AND HAS NO APPLICATION TO THE PAYMENT TO AN ARMY OFFICER, PURSUANT TO SECTION 7 OF THE ACT OF APRIL 26, 1898, OF THE PAY AND ALLOWANCES OF THE APPROPRIATE HIGHER PAY PERIOD INCIDENT TO THE EXERCISE OF HIGHER COMMAND IN TIME OF WAR.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR C. M. ANDREWS, U.S. ARMY, MARCH 4, 1946:

BY ENDORSEMENT DATED JULY 31, 1945, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF MARCH 24, 1945, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, SUBMITTED THEREWITH, STATED IN FAVOR OF MAJOR BERTRAND C. FOWLER, SIGNAL CORPS, HEADQUARTERS, 932ND SIGNAL BATTALION, SEPARATE ( TACTICAL AIR COMMAND), FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THOSE AUTHORIZED FOR A LIEUTENANT COLONEL AND THOSE AUTHORIZED FOR A CAPTAIN FOR THE PERIOD JANUARY 8, 1944, THROUGH OCTOBER 14, 1944, DURING WHICH TIME THE OFFICER, THEN A CAPTAIN, WAS IN COMMAND OF THAT BATTALION.

PARAGRAPH 2, SPECIAL ORDERS NO. 6, DATED JANUARY 15, 1944, HEADQUARTERS IX AIR SUPPORT COMMAND, READS AS FOLLOWS:

2. DP, ANNOUNCEMENT, IS MADE OF THE APPOINTMENT OF CAPT. BERTRAND C. FOWLER, 10475095, SIG C. AS COMMANDING OFFICER OF 932ND SIGNAL BATTALION ( ASC), EFFECTIVE 15 JAN 1944.

BY ORDER OF COLONEL CRUMRINE:

PARAGRAPH 3, SPECIAL ORDERS NO. 7, DATED JANUARY 17, 1944, ISSUED BY THE SAME HEADQUARTERS, PROVIDED:

3. SO MUCH OF PAR. 2, SO NO. 6, THIS HQ AS READS: "EFFECTIVE 15 JAN 1944" IS AMENDED TO READ: EFFECTIVE 8 JAN 1944.

BY ORDER OF COLONEL CRUMRINE:

IN CONNECTION WITH THE ABOVE-QUOTED ORDERS THERE HAS BEEN FURNISHED THE FOLLOWING CERTIFICATE:

HEADQUARTERS

XIX TACTICAL AIR COMMAND ( REAR)

APO 141, U.S. ARMY, 10 MARCH 1945.

CERTIFICATE

1. CAPTAIN BERTRAND C. FOWLER, 10475095, SIG C, WAS PLACED IN COMMAND OF THE 932ND SIGNAL BATTALION ON THE 8 JANUARY 1944 BY VERBAL ORDER OF COLONEL CLARENCE E. CRUMRINE, COMMANDING OFFICER OF THE IX AIR SUPPORT COMMAND, AND THIS WAS LATER CONFIRMED AND MADE A MATTER OF RECORD BY IX AIR SUPPORT COMMAND SPECIAL ORDERS 6 AND 7, DATED 15 AND 17TH OF JANUARY 1944 RESPECTIVELY. SEE INCLS 3 AND 4.

2. THE UNDERSIGNED WAS ASSISTANT CHIEF OF STAFF, A-1, AT THE TIME, AND HAD COMPLETE KNOWLEDGE OF THIS ASSIGNMENT.

3.AS SHOWN BY INCL 1, LT. COLONEL GUY N. CHURCH, 10161806, SIG C, WAS RELIEVED OF COMMAND OF THE 932 SIGNAL BATTALION ON THE 8TH OF JANUARY 1944.

(S) ROBERT C. BYERS,

ROBERT C. BYERS,

LT COL, AC, AC OF S, A-1.

THE ENCLOSURES ACCOMPANYING YOUR LETTER DISCLOSE THAT FROM JANUARY 8, 1944, THE DATE ON WHICH MAJOR FOWLER WAS ASSIGNED COMMAND OF THE 932ND SIGNAL BATTALION, UNTIL JUNE 30, 1944, THAT ORGANIZATION WAS STATIONED IN THE UNITED KINGDOM AND, THEREAFTER, DURING THE PERIOD CLAIMED IT WAS STATIONED IN FRANCE; THAT DURING THE ENTIRE PERIOD FOR WHICH THE PAY OF THE HIGHER GRADE IS CLAIMED THE PRIMARY DUTY OF THE BATTALION WAS TO ESTABLISH AND MAINTAIN COMMUNICATIONS FOR THE XIX TACTICAL AIR COMMAND, THEN ENGAGED IN FIGHTING THE ENEMY; AND THAT DURING THE ENTIRE PERIOD MAJOR FOWLER, THEN A CAPTAIN, WAS JUNIOR IN RANK TO OTHER CAPTAINS PRESENT WITH THE ORGANIZATION AND AVAILABLE TO EXERCISE THE FUNCTION OF ITS COMMAND.

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 * * *.

THE QUESTIONS INVOLVED ARE STATED IN YOUR LETTER AS FOLLOWS:

MAJOR FOWLER CLAIMS THE DIFFERENCE IN PAY BETWEEN A CAPTAIN AND A LIEUTENANT COLONEL, OVER 14 YEARS SERVICE, FOR THE PERIOD FROM 8 JANUARY 1944 TO 30 JUNE 1944, INCLUSIVE FOR SERVICES IN THE UNITED KINGDOM AND 1 JULY 1944 TO 14 OCTOBER 1944, INCLUSIVE FOR SERVICES ON THE CONTINENT, AS SHOWN IN ENCLOSURES 2, 11, AND 12, UNDER THE PROVISIONS OF PARAGRAPH 3, AR 35-1620, DATED 1 JANUARY 1930 AS INTERPRETED BY THE JUDGE ADVOCATE GENERAL AS BASED ON AN OPINION OF THE ATTORNEY GENERAL SHOWN IN THE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 1912-40, SECTION 1428, PARAGRAPH 5.

THE QUESTIONS IN ISSUE AS TO THE VALIDITY OF THE PROPOSED PAYMENT ARE AS FOLLOWS:

1. CAN THE WORDS "SERVICE WITH TROOPS OPERATING AGAINST AN ENEMY" AS INTERPRETED IN THE ABOVE MENTIONED OPINION OF ATTORNEY GENERAL, BE CONSTRUED AS BEING THE SAME AS "COMMAND OF TROOPS AGAINST THE ENEMY," FOR THE PERIOD OF THE ENCLOSED CLAIM SPENT IN THE UNITED KINGDOM, PARTICULARLY WHEN GENERAL ORDER NUMBER 75, WAR DEPARTMENT, DATED 29 OCTOBER 1943 STATES THAT THE LAND AREAS OF THE UNITED KINGDOM FOR THE PERIOD COVERED WERE NOT IN A BATTLE ZONE? IS THIS DECISION SUFFICIENT AUTHORITY FOR PAYMENT OF THE ENCLOSED CLAIM?

2. IS SPECIAL ORDER NO. 6 ( ENCLOSURE NO. 7) AS AMENDED BY PARAGRAPH 6, SPECIAL ORDER NO. 7 ( ENCLOSURE NO. 8,) HEADQUARTERS, IX AIR SUPPORT COMMAND, A LEGALLY CONSTITUTED ORDER INASMUCH AS THE AMENDMENT IS NOT CONFIRMATION OF VERBAL ORDERS OF THE COMMANDING OFFICER AND HENCE THE EFFECTIVE DATE IS IN VIOLATION OF PARAGRAPHS 14 AND 15, AR 310-50? ATTENTION IS INVITED TO THAT PART OF THE ORDER WHICH READS "BY DIRECTION OF THE PRESIDENT.'

3. CAN ADDITIONAL PAY FOR EXERCISING COMMAND ABOVE THAT RELATIVE TO GRADE (I.E., CAPTAIN TO LIEUTENANT COLONEL) BE CONSTRUED AS A "JUMP" FROM THE THIRD TO THE FIFTH PAY PERIOD, WHICH WOULD BE IN CONTRAVENTION TO THE PAY READJUSTMENT ACT OF 1942 AS AMENDED BY ACT OF 2 DECEMBER 1942 AS SHOWN IN TECHNICAL MANUAL 14-501, SECTION I, PARAGRAPH 3B (2) (A/?

THE OPINION OF THE JUDGE ADVOCATE GENERAL REFERRED TO IN YOUR LETTER IS STATED IN LANGUAGE SUBSTANTIALLY SIMILAR TO THAT CONTAINED IN 22 OP. ATTY. GEN. 95, ET SEQ., WHICH FORMED THE BASIS FOR THE DECISION OF THE COURT OF CLAIMS IN FERRIS V. UNITED STATES, 57 C.1CLS. 566, TO THE EFFECT THAT TROOPS ASSEMBLED IN CAMPS OF INSTRUCTION IN THE UNITED STATES WERE TO BE CONSIDERED "AS OPERATING AGAINST AN ENEMY" WITHIN THE MEANING OF SECTION 7 OF THE ACT OF APRIL 26, 1898, SUPRA. HOWEVER, UPON APPEAL, THAT DECISION WAS REVERSED BY THE SUPREME COURT OF THE UNITED STATES ( UNITED STATES V. FERRIS, 265 U.S. 165), AND WITH RESPECT TO THE SAID ACT OF 1898, IT WAS STATED IN THE OPINION OF THE COURT THAT.

* * * THIS ACT WAS PASSED DURING THE SPANISH WAR AND THE COURT OF CLAIMS RESTED ITS CONCLUSION ON THE OPINION OF THE ATTORNEY GENERAL, 22 OPS. ATTY. GEN. 95, IN WHICH HE HELD THAT TROOPS ASSEMBLED IN CAMPS OF INSTRUCTION IN THE UNITED STATES WERE TO BE CONSIDERED AS OPERATING AGAINST AN ENEMY UNDER THE STATUTE. WE THINK THAT THE CONSTRUCTION IS SO AT VARIANCE WITH THE ORDINARY MEANING OF THE LANGUAGE THAT WE CAN NOT FOLLOW IT. IT CAN HARDLY BE SAID TO HAVE BECOME THE BASIS FOR A LONG EXECUTIVE CONSTRUCTION AND PRACTICE, BECAUSE THE SPANISH WAR WAS SOON OVER AND THE QUESTION OF ITS APPLICATION DID NOT ARISE UNTIL THE RECENT GREAT WAR. WE AGREE WITH THE OPINION OF THE PAYMASTER GENERAL IN 1898 IN THIS MATTER. HE SAID:

"AS YET, ALTHOUGH WAR HAS BEEN DECLARED TO EXIST BETWEEN SPAIN AND THE UNITED STATES, THERE ARE, IN MY OPINION, WITH THE EXCEPTION OF THE TROOPS EMBARKED FOR THE PHILIPPINE ISLANDS, NO TROOPS "OPERATING AGAINST AN ENEMY.' THERE IS, WITHIN OUR BORDERS, NO ENEMY, WITHIN THE MEANING OF THE LAW, FOR TROOPS TO OPERATE AGAINST. AN ARMY HAS BEEN CALLED TOGETHER, AND IS BEING DRILLED, DISCIPLINED, AND PREPARED TO OPERATE AGAINST AN ENEMY, BUT UNTIL THAT ARMY EMBARKS FOR A FOREIGN COUNTRY, OR UNTIL AN ENEMY APPEARS ON OUR SHORES, AND THE ARMY CONFRONTS IT, IT IS HELD THAT NO OFFICER CAN RECEIVE PAY OF A HIGHER GRADE BY VIRTUE OF ANYTHING IN THE ACT REFERRED TO.' APPLYING THE RULE THUS APPROVED BY THE SUPREME COURT, THE COURT OF CLAIMS, IN LANAGAN V. UNITED STATES, 61 C.1CLS. 504, HELD THAT AN ARTILLERY OFFICER ASSIGNED TO A HIGHER COMMAND WAS ENTITLED TO THE ADDITIONAL PAY AUTHORIZED BY SECTION 7, SUPRA, FROM JUNE 22, 1918, THE DATE HE EMBARKED FROM THE UNITED STATES WITH HIS BATTERY FOR FRANCE FOR SERVICE AGAINST A COUNTRY AT WAR WITH THE UNITED STATES, BUT NOT THERETOFORE.

WAR DEPARTMENT GENERAL ORDERS NO. 75, DATED OCTOBER 29, 1943, ENUMERATING THE BATTLES AND CAMPAIGNS OF THE UNITED STATES ARMY IN THE PRESENT WAR, EXPRESSLY EXCLUDE THEREFROM THE LAND AREAS OF THE UNITED KINGDOM. HOWEVER, SUCH PRIOR EXCLUSION OF THE LAND AREAS OF THE UNITED KINGDOM FROM THE "CAMPAIGNS AND BATTLES" OF THE ARMY DOES NOT PRECLUDE CONSIDERATION OF MILITARY SERVICE IN SUCH AREAS AS SERVICE "WITH TROOPS OPERATING AGAINST AN ENEMY" WITHIN THE MEANING OF THE SAID 1898 ACT. BY SECTION 2 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 4, THE SIGNAL CORPS IS DESIGNATED AS ONE OF THE COMBATANT ARMS OF THE ARMY, AND AS SHOWN BY THE ENCLOSURES SUBMITTED WITH THE VOUCHER IN THIS CASE, THE PRIMARY DUTY OF THE 932ND SIGNAL BATTALION WHILE MAJOR FOWLER WAS IN COMMAND THEREOF WAS TO ESTABLISH AND MAINTAIN COMMUNICATIONS FOR THE XIX TACTICAL AIR COMMAND THEN ENGAGED IN FIGHTING THE ENEMY. WHILE NOT ENGAGED IN A CAMPAIGN OR BATTLE AS CONTEMPLATED BY THE SAID GENERAL ORDERS, IT IS CONCLUDED, ON THE BASIS OF THE SAID DECISIONS, THAT THE OFFICER HERE INVOLVED WAS "SERVING WITH TROOPS OPERATING AGAINST ANY ENEMY," WITHIN THE MEANING OF THE STATUTE, DURING THE PERIOD HIS BATTALION WAS STATIONED IN THE UNITED KINGDOM AS WELL AS FOR THE PERIOD DURING WHICH IT WAS OPERATING IN FRANCE. QUESTION 1 IS ANSWERED ACCORDINGLY.

RESPECTING THE VALIDITY OF SPECIAL ORDERS NO. 6, AS AMENDED BY SPECIAL ORDERS NO. 7, TO CONFER UPON MAJOR FOWLER THE COMMAND OF THE SAID 932ND SIGNAL BATTALION EFFECTIVE JANUARY 8, 1944, THE CONCLUSIONS OF THE ADJUTANT GENERAL OF THE ARMY IN THE MATTER WERE EXPRESSED IN HIS ENDORSEMENT OF JUNE 25, 1945, TO THE CHIEF, RECEIPTS AND DISBURSEMENTS DIVISION, OFD, ASF, AS FOLLOWS:

1. AS IT APPEARS BY THE CERTIFICATE OF LIEUTENANT COLONEL ROBERT C. BYERS DATED 10 MARCH 1945 (INCL. 13 TO LTR. DATED 24 MAR 1945, TO THE COMP. GEN.) THAT MAJOR FOWLER WAS IN FACT DESIGNATED ON 8 JANUARY 1944 AS COMMANDING OFFICER OF THE 932ND SIGNAL BATTALION BY VERBAL ORDERS OF THE COMMANDING OFFICER, IX AIR SUPPORT COMMAND, AN AUTHORITY COMPETENT TO MAKE SUCH A DESIGNATION (SEE SEC. III, CIR. NO. 120, W.D., 1943; SIMILAR PROVISIONS NOW CONTAINED IN PAR. 2, C 9, 22 DEC. 1944, AR 600-20), IT IS THE OPINION OF THIS OFFICE THAT SPECIAL ORDERS NO. 7 DATED 17 JANUARY 1944, OF THE LAST-NAMED ORGANIZATION, MERELY AMENDED SPECIAL ORDERS NO. 6 DATED 15 JANUARY 1944, SAME ORGANIZATION, TO CONFORM WITH THE PREVIOUS VERBAL ORDER AND THAT SPECIAL ORDERS NO. 6, AS SO AMENDED, WERE, IN EFFECT, THOUGH NOT IN FORM, ONLY CONFIRMATORY OF THE PREEXISTING VERBAL DESIGNATION. ACCORDINGLY, IT IS THE OPINION OF THIS OFFICE THAT MAJOR FOWLER'S DESIGNATION WAS LEGALLY ACCOMPLISHED ON 8 JANUARY 1944 AND, THEREFORE, THAT SPECIAL ORDERS NO. 7 DID NOT CHANGE THE DATE UPON WHICH HE WAS TO ASSUME COMMAND TO A DATE PRIOR TO THE ACTUAL DESIGNATION.

2. IN VIEW OF THE ORIGINAL DESIGNATION BY COMPETENT AUTHORITY ON 8 JANUARY 1944 OF MAJOR FOWLER AS COMMANDER OF THE BATTALION IN QUESTION, AS ABOVE NOTED, IT IS THE FURTHER OPINION OF THIS OFFICE THAT THE FAILURE TO INSERT THE WORDS "BY DIRECTION OF THE PRESIDENT" IN THE CITED SPECIAL ORDERS NO. 7 DID NOT AFFECT THE VALIDITY OF SUCH DESIGNATION.

SECTION III, CIRCULAR NO. 120, WAR DEPARTMENT, 1943, CITED BY THE ADJUTANT GENERAL, IS AS FOLLOWS:

ASSIGNMENT OF JUNIOR OF TWO OR MORE OFFICERS OF SAME GRADE WITHIN A COMMAND TO COMMAND THEREOF.--- 1. UNDER AN APPROVED OPINION OF THE JUDGE ADVOCATE GENERAL THE POWERS CONFERRED UPON THE PRESIDENT BY ARTICLE OF WAR 119 MAY BE DELEGATED BY THE SECRETARY OF WAR, ACTING FOR THE PRESIDENT, TO APPROPRIATE COMMANDERS OF THE FIELD FORCES.

2. AUTHORITY IS GRANTED TO DIVISION, CORPS, AND ARMY COMMANDERS; TO WING, BOMBER, FIGHTER, AND AIR SUPPORT COMMAND, AND AIR FORCE COMMANDERS; TO COMMANDERS OF COMPARABLE UNITS OF THE FIELD FORCES; TO THE COMMANDING GENERALS, TROOP CARRIER, AIR TRANSPORT, ANTISUBMARINE, AND AIR SERVICE COMMANDS OF THE ARMY AIR FORCES; AND TO THEATER, DEFENSE COMMAND, SERVICE COMMAND, BASE COMMAND, AND DEPARTMENT COMMANDERS, TO DESIGNATE A JUNIOR OF SEVERAL OFFICERS OF THE SAME GRADE WITHIN A COMMAND AS COMMANDER THEREOF WITHOUT REGARD TO RELATIVE SENIORITY. WHEN AN OFFICER IS SO DESIGNATED THE FOLLOWING FORM WILL BE EMPLOYED IN ANNOUNCING HIS DESIGNATION IN SPECIAL ORDERS.

BY DIRECTION OF THE PRESIDENT ANNOUNCEMENT IS MADE OF THE APPOINTMENT OF- -------------------------------------------------------- ------------AS

( NAME, GRADE, SERIAL NUMBER, AND ARM OR SERVICE OF OFFICER) COMMANDING OFFICER (OR GENERAL) OF ---------------------------- EFFECTIVE ( DESIGNATION OF UNIT)- -------------------------------.

( DATE)

3. THE ABOVE AUTHORITY WILL NOT BE UTILIZED IN THE CASE OF GENERAL OFFICERS WITHOUT PRIOR APPROVAL OF THE WAR DEPARTMENT IN EACH INSTANCE. THIS AUTHORITY WILL NOT BE UTILIZED TO ASSIGN COMMAND FUNCTIONS TO CHAPLAINS OR TO OFFICERS OF THE MEDICAL DEPARTMENT WHEN SUCH ASSIGNMENT INVOLVES TROOPS OTHER THAN THOSE OF THE MEDICAL DEPARTMENT, OR TO ASSIGN COMMAND FUNCTIONS, INVOLVING FLYING UNITS, CONTRARY TO THE PROVISIONS OF AR 95-60. IN VIEW OF SUCH EXPRESS DELEGATION OF AUTHORITY, INTER ALIA, TO THE COMMANDERS OF AIR SUPPORT COMMANDS, AND THE COMMENTS OF THE ADJUTANT GENERAL RESPECTING THE ORDERS IN THIS CASE, YOU ARE ADVISED, IN ANSWER TO YOUR SECOND QUESTION, THAT THE SAID SPECIAL ORDERS NO. 6, AS AMENDED, ISSUED BY THE COMMANDING OFFICER OF THE IX AIR SUPPORT COMMAND, PROPERLY MAY BE CONSIDERED AS "ORDERS ISSUED BY COMPETENT AUTHORITY" ASSIGNING THE COMMAND OF THE 932ND SIGNAL BATTALION TO CAPTAIN FOWLER EFFECTIVE JANUARY 8, 1944--- THE DATE HE WAS PLACED IN COMMAND OF THAT ORGANIZATION BY VERBAL ORDERS OF SUCH COMMANDING OFFICER.

PARAGRAPH 3 B (2) (A) OF SECTION 1, TECHNICAL MANUAL 14-501, STATING THAT " ADVANCEMENT OF PAY PERIOD MAY NEVER GO BEYOND THE PAY PERIOD NEXT HIGHER TO THAT CORRESPONDING TO THE OFFICER'S GRADE" CLEARLY HAS APPLICATION TO AUTOMATIC ADVANCEMENTS IN PAY PERIODS BY REASON OF THE COMPLETION OF THE NUMBER OF YEARS PRESCRIBED BY THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, AND HAS NO APPLICATION TO PAYMENT OF THE PAY OF THE APPROPRIATE HIGHER PAY PERIOD INCIDENT TO THE EXERCISE OF HIGHER COMMAND, AS IS HERE INVOLVED. IN THIS CONNECTION SEE PARAGRAPH 3B (1) OF SECTION 1 OF THE SAID MANUAL. QUESTION 3 IS ANSWERED IN THE NEGATIVE.

ON THE BASIS OF THE FACTS SUBMITTED, IT SUFFICIENTLY APPEARS THAT THE REQUIREMENTS OF THE SAID SECTION 7 OF THE 1898 ACT RESPECTING THE EXERCISE OF COMMAND IN TIME OF WAR OVER TROOPS OPERATING AGAINST AN ENEMY UNDER AN ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY HAVE BEEN MET BY THE OFFICER. ACCORDINGLY, IF EVIDENCE BE ATTACHED TO THE VOUCHER ESTABLISHING THAT THE TABLE OF ORGANIZATION GOVERNING THE COMPLEMENT OF THE 932ND SIGNAL BATTALION AUTHORIZED A LIEUTENANT COLONEL AS COMMANDING OFFICER DURING THE PERIOD INVOLVED, PAYMENT THEREON OF THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THE GRADES OF LIEUTENANT COLONEL AND CAPTAIN FOR THE PERIOD CLAIMED IS AUTHORIZED, IF OTHERWISE CORRECT.