B-60997, APR 2, 1947

B-60997: Apr 2, 1947

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THERE WAS RECEIVED YOUR LETTER OF DECEMBER 14. REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. IT APPEARS THAT THE ENLISTED MAN WAS REDUCED FROM STAFF SERGEANT TO PRIVATE. BY THE SAME ORDER HE WAS PROMOTED FROM PRIVATE TO SERGEANT. IT WAS DIRECTED THAT ORDERS BE ISSUED REAPPOINTING THE SOLDIER TO HIS FORMER GRADE OF STAFF SERGEANT. EFFECTIVE THE DATE SUCH ORDERS WERE ISSUED. IN ACCORDANCE WITH THAT LETTER THERE WAS ISSUED SPECIAL ORDERS NO. 137. IS APTD S/SGT (TEMP). FROM THE ADJUTANT GENERAL'S OFFICE THE COMMANDING OFFICER AT FORT HAMILTON WAS ADVISED AS FOLLOWS: "1.ATTENTION IS INVITED TO THE ATTACHED COPIES OF LETTERS DATED 10 JUNE 1946 AND 13 JUNE 1946 PROMOTING SUBJECT ENLISTED MAN TO THE GRADE OF STAFF SERGEANT. "2.

B-60997, APR 2, 1947

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL E. A. MUTH, F.D.; U.S. ARMY:

THROUGH CHIEF OF FINANCE, WAR DEPARTMENT

COLONEL MUTH:

BY INDORSEMENT FROM THE CHIEF OF FINANCE DATED JANUARY 13, 1947, THERE WAS RECEIVED YOUR LETTER OF DECEMBER 14, 1946 (FILE EAM/HSR/RL), REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF KENNETH PHILLIPS, ARMY SERIAL NO. 6808479, STAFF SERGEANT, ARMY OF THE UNITED STATES.

IT APPEARS THAT THE ENLISTED MAN WAS REDUCED FROM STAFF SERGEANT TO PRIVATE, FOR INEFFICIENCY PER COMPANY ORDER NO. 11, DATED MARCH 1, 1944, FIFTH ORDNANCE MEDIUM MAINTENANCE COMPANY, AND BY THE SAME ORDER HE WAS PROMOTED FROM PRIVATE TO SERGEANT. BY LETTER DATED JUNE 10, 1946, THE ADJUTANT GENERAL'S OFFICE ADVISED THE COMMANDING OFFICER, FORT HAMILTON, BROOKLYN, NEW YORK, THAT IT HAD BEEN ADMINISTRATIVELY DETERMINED THAT THE GRADE OF STAFF SERGEANT TAKEN FROM THE SOLDIER ON MARCH 1, 1944, SHOULD BE RESTORED, AND IT WAS DIRECTED THAT ORDERS BE ISSUED REAPPOINTING THE SOLDIER TO HIS FORMER GRADE OF STAFF SERGEANT, EFFECTIVE THE DATE SUCH ORDERS WERE ISSUED. IN ACCORDANCE WITH THAT LETTER THERE WAS ISSUED SPECIAL ORDERS NO. 137, DATED JUNE 12, 1946, HEADQUARTERS, FORT HAMILTON, BROOKLYN, NEW YORK, WHICH PROVIDED IN PART THAT:

"10. SGT KENNETH H. PHILLIPS, RA-6808479, DET 3, 4200 SCU, NYPE, FT. HAMILTON, NY, IS APTD S/SGT (TEMP). LETTER TAG SUBJECT REDUCTION OF ENLISTED MEN DATED 10 JUNE 1946."

THEREAFTER, BY LETTER DATED SEPTEMBER 16, 1946, FROM THE ADJUTANT GENERAL'S OFFICE THE COMMANDING OFFICER AT FORT HAMILTON WAS ADVISED AS FOLLOWS:

"1.ATTENTION IS INVITED TO THE ATTACHED COPIES OF LETTERS DATED 10 JUNE 1946 AND 13 JUNE 1946 PROMOTING SUBJECT ENLISTED MAN TO THE GRADE OF STAFF SERGEANT.

"2. THE SECRETARY OF WAR DIRECTS THAT CORRECTIVE ORDERS BE ISSUED TO PROMOTE KENNETH PHILLIPS, 6808479 TO HIS FORMER GRADE OF STAFF SERGEANT EFFECTIVE 1 MARCH 1944.

"3. UPON PROMULGATION OF THE CORRECTED ORDERS, IT IS SUGGESTED THAT VOUCHERS COVERING ANY LOSS OF PAY INCURRED BY PHILLIPS BE SUBMITTED AS A BASIS FOR A REQUEST TO THE COMPTROLLER GENERAL FOR AN ADVANCE DECISION IN THE PREMISES. COPIES OF THE CORRECTED ORDERS SHOULD BE ATTACHED THERETO AND THE ATTENTION OF THE COMPTROLLER GENERAL INVITED TO THE FACT THAT THE WAR DEPARTMENT HAS DETERMINED IN VIEW OF THE CIRCUMSTANCES THAT THE COMMANDING OFFICER OF THE UNIT INVOLVED WAS NOT A COMPETENT AUTHORITY TO ISSUE THE PURPORTED REDUCTION ORDERS, WHICH FOR THAT REASON ARE NOT MERELY IRREGULAR BUT IN FACT VOID.

"4. IT IS DESIRED THAT THIS OFFICE BE FURNISHED A COPY OF ACTION TAKEN."

SPECIAL ORDERS NO. 209, DATED SEPTEMBER 20, 1946, HEADQUARTERS, FORT HAMILTON, BROOKLYN, NEW YORK, PROVIDES:

"6. PAR 10, SO 137, THIS HQ., DATED 12 JUNE 1946, APPOINTING SGT KENNETH H. PHILLIPS, RA-6808479, DET #3, 4200 SCU, NYPE, FT HAMILTON, NY, TO GRADE OF S/SGT (TEMP) IS AMENDED TO READ, 'SGT KENNETH H. PHILLIPS, RA-6808479, DET #3, 4200 SCU, NYPE, FT HAMILTON, NY, IS APTD S/SGT (TEMP), EFFECTIVE 1 MARCH 1944, AUTHORITY: LETTER THE ADJUTANT GENERAL'S OFFICE, WASHINGTON 25, DC, AGPE-I 201 PHILLIPS, KENNETH (6 FEB 46), SUBJECT: REDUCTION OF ENLISTED MAN, DATED 16 SEPTEMBER 1946.'

"7. SO MUCH OF PAR 25, SO 259, THIS HQ., DATED 22 OCTOBER 1945 WHICH READS:

NAME & SERIAL NO. DATE RE-ENL ASGD TO DATE OF RANK SGT KENNETH PHILLIPS, 6808479 5 OCT 45 9201 TSU-TC MP 1 MAR 44

DET #33

NAME & SERIAL NO. DATE RE-ENL ASGD TO DATE OF RANK IS AMENDED TO READ: 'S/SGT KENNETH PHILLIPS, 5 OCT 45 9201 TSC-TC,MP 1 MAR 44'" 6808479 DET #33

THE VOUCHER SUBMITTED IS STATED AS FOR THE DIFFERENCE BETWEEN THE PAY OF A SERGEANT WITH OVER TWELVE YEARS' SERVICE AND THE PAY OF A STAFF SERGEANT WITH OVER TWELVE YEARS' SERVICE FOR THE PERIOD FROM MARCH 1 TO APRIL 22, 1944, AND THE DIFFERENCE BETWEEN THE PAY OF A SERGEANT WITH OVER FIFTEEN YEARS' SERVICE AND THE PAY OF A STAFF SERGEANT WITH OVER FIFTEEN YEARS' SERVICE FOR THE PERIOD FROM APRIL 23, 1944, TO JUNE 12, 1946, INCLUDING THE DIFFERENCE IN FOREIGN SERVICE PAY FOR THE PERIOD FROM MARCH 1, 1944, TO JUNE 2, 1945, AND THE DIFFERENCE BETWEEN CLASS F DEDUCTIONS OF $22 PER MONTH AND MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR THE PERIOD FROM MARCH 1, 1944, TO JANUARY 8, 1946.

WITH REFERENCE TO THE AUTHORITY TO TERMINATE AN APPOINTMENT, PARAGRAPH 13(C) OF ARMY REGULATIONS 615-5, DATED JUNE 30, 1943, PROVIDES:

"C. AUTHORITY COMPETENT TO APPOINT-- THE AUTHORITY COMPETENT TO APPOINT MAY TERMINATE AN APPOINTMENT--

"(2) IN GRADES OTHER THAN THAT OF PRIVATE, FIRST CLASS, INCLUDING TECHNICIAN GRADES, FOR MISCONDUCT OR INEFFICIENCY AS PROVIDED IN PARAGRAPH 15."

PARAGRAPH 15 OF THE SAID REGULATIONS PROVIDES:

"MISCONDUCT OR INEFFICIENCY.-- A. GENERAL-- THE MISCONDUCT OR INEFFICIENCY BELIEVED TO MAKE TERMINATION OF APPOINTMENT NECESSARY WILL BE REPORTED BY THE IMMEDIATE COMMANDING OFFICER OF THE NONCOMMISSIONED OFFICER CONCERNED THROUGH MILITARY CHANNELS TO THE APPOINTING AUTHORITY, WHO WILL CAREFULLY AND EXPEDITIOUSLY EXAMINE INTO THE FACTS IN THE CASE, THROUGH A BOARD OF OFFICERS, OR BY OTHER SIMILAR METHODS IF HE SO ELECTS, TO DETERMINE THE FACTS IN CONNECTION WITH THE ALLEGED INEFFICIENCY OR MISCONDUCT AND WHETHER OR NOT THERE IS JUST CAUSE FOR THE TERMINATION OF THE APPOINTMENT."

WITH RESPECT TO THE AUTHORITY TO APPOINT NONCOMMISSIONED OFFICERS, PARAGRAPH 6D OF ARMY REGULATIONS 615-5, PROVIDES:

"D. COMMANDING OFFICERS OF SERVICE COMMAND SIGNAL SERVICE COMPANIES, SIGNAL SERVICE COMPANIES (AVIATION), AND ORDNANCE SERVICE COMPANIES WILL APPOINT NONCOMMISSIONED OFFICERS AND PRIVATES, FIRST CLASS, IN THEIR UNITS."

IN VIEW OF THE FOREGOING REGULATIONS, IT IS NOT APPARENT FROM THE RECORD BEFORE THIS OFFICE THAT THE COMMANDING OFFICER OF THE FIFTH ORDNANCE MEDIUM MAINTENANCE COMPANY DID NOT HAVE AUTHORITY TO TERMINATE THE ENLISTED MAN'S APPOINTMENT TO THE GRADE OF STAFF SERGEANT, AND THE BASIS FOR THE ADMINISTRATIVE DETERMINATION THAT THE COMMANDING OFFICER OF THE INVOLVED UNIT WAS WITHOUT AUTHORITY TO ISSUE THE REDUCTION ORDERS IS NOT STATED. MOREOVER, THERE IS NO INDICATION THAT AT ANY TIME DURING THE PERIOD FROM MARCH 1, 1944, TO JUNE 12, 1946, PHILLIPS PERFORMED THE DUTIES OF STAFF SERGEANT OR THAT HE WAS CONSIDERED ADMINISTRATIVELY AS AN ENLISTED MAN OF THAT GRADE. ACCORDINGLY, ON THE PRESENT RECORD PAYMENT ON THE VOUCHER SUBMITTED IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED IN THE FILES OF THIS OFFICE.