B-77465, NOVEMBER 4, 1949, 29 COMP. GEN. 211

B-77465, NOVEMBER 4, 1949, 29 COMP. GEN. 211

PAY - PROMOTIONS - EFFECTIVE DATE - FORMAL ANNOUNCEMENT REQUIREMENT REGULAR ARMY OFFICERS WHO ARE PROMOTED UPON COMPLETION OF THE REQUISITE YEARS OF SERVICE UNDER ANY OF THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947 ARE NOT ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE UNTIL THE DATE OF THE FORMAL ORDER ANNOUNCING THE PROMOTION--- WHICH DATE IS ESTABLISHED GENERALLY BY THE ACT OF OCTOBER 14, 1942, AS THE EFFECTIVE DATE FOR INCREASING THE PAY AND ALLOWANCES OF ARMY OFFICERS ADVANCED IN RANK--- EVEN THOUGH SUCH ANNOUNCEMENT ORDER MAY NOT BE ISSUED UNTIL AFTER THE DATE OF COMPLETION OF THE REQUIRED SERVICE OR THE ACCEPTANCE OF THE PROMOTION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, NOVEMBER 4, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1948, WITH ENCLOSURE, WHEREIN YOU REQUEST DECISION ON SEVERAL QUESTIONS THAT INVOLVE, AND ARE INCLUDED IN, THE BROADER QUESTION WHICH MAY BE STATED AS FOLLOWS: ON WHAT DATE ARE OFFICERS OF THE REGULAR ARMY WHO ARE PROMOTED TO A HIGHER GRADE UNDER THE PROVISIONS OF TITLE V OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 883, ET SEQ., ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE?

THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, 10 U.S.C. 558, PROVIDES AS FOLLOWS:

THAT EVERY OFFICER OF THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, PROMOTED TO A HIGHER GRADE AT ANY TIME AFTER DECEMBER 7, 1941, SHALL BE DEEMED FOR ALL PURPOSES TO HAVE ACCEPTED HIS PROMOTION TO HIGHER GRADE UPON THE DATE OF THE ORDER ANNOUNCING IT UNLESS HE SHALL EXPRESSLY DECLINE SUCH PROMOTION, AND SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM SUCH DATE UNLESS HE IS ENTITLED UNDER SOME OTHER PROVISION OF LAW TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM AN EARLIER DATE. NO SUCH OFFICER WHO SHALL HAVE SUBSCRIBED TO THE OATH OF OFFICE REQUIRED BY SECTION 1757, REVISED STATUTES, SHALL BE REQUIRED TO RENEW SUCH OATH OR TO TAKE A NEW OATH UPON HIS PROMOTION TO A HIGHER GRADE, IF HIS SERVICE AFTER THE TAKING OF SUCH AN OATH SHALL HAVE BEEN CONTINUOUS.

VARIOUS PROVISIONS ARE MADE IN TITLE V OF THE OFFICER PERSONNEL ACT OF 1947 FOR THE PROMOTION OF OFFICERS OF THE REGULAR ARMY. FOR EXAMPLE, SEE SECTION 509 (B) OF SUCH ACT (61 STAT. 894), WHICH PROVIDES AS FOLLOWS:

(B) IRRESPECTIVE OF THE EXISTENCE OF ANY VACANCIES, EACH PROMOTION LIST OFFICER IN PERMANENT GRADE OF FIRST LIEUTENANT, CAPTAIN, AND MAJOR SHALL BE CONSIDERED BY A SELECTION BOARD FOR PROMOTION TO THE PERMANENT GRADE OF CAPTAIN, MAJOR, AND LIEUTENANT COLONEL, SUFFICIENTLY IN ADVANCE OF THE DATE ON WHICH HE COMPLETES SEVEN, FOURTEEN, AND TWENTY-ONE YEARS' SERVICE, RESPECTIVELY, SO THAT SUCH OFFICER, IF RECOMMENDED BY THE SELECTION BOARD, MAY BE PROMOTED TO AND APPOINTED IN SUCH GRADE ON THE DATE ON WHICH HE COMPLETES SUCH LENGTH OF SERVICE ("YEARS' ERVICE" AS USED IN THIS SECTION MEANS AND INCLUDES ALL SERVICE CREDITABLE FOR PROMOTION PURPOSES). HOWEVER, NOWHERE IN THE SAID TITLE V HAS THERE BEEN FOUND ANY PROVISION EXPRESSLY FIXING THE EFFECTIVE DATE, FOR PAY AND ALLOWANCE PURPOSES, OF PROMOTIONS MADE THEREUNDER, NOR HAS THERE BEEN FOUND ANY OTHER SPECIFIC STATUTORY PROVISION, OTHER THAN THE ACT OF OCTOBER 14, 1942, SUPRA, WHICH FIXES THE EFFECTIVE DATE OF PROMOTIONS OF OFFICERS OF THE REGULAR ARMY FOR SUCH PURPOSES. IN DECISION OF OCTOBER 17, 1949, B-68785, 29 COMP. GEN. 188, TO COLONEL C. B. LENOW, FINANCE DEPARTMENT, UNITED STATES ARMY, IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 14, 1942, FIXING THE DATE FOR COMMENCEMENT OF HIGHER PAY BECAUSE OF THE PROMOTION OF ARMY OFFICERS AS THE DATE OF THE ORDER ANNOUNCING THE PROMOTION, AN ARMY OFFICER WHO, UNDER SECTION 3 OF THE ACT OF JULY 31, 1935, AS AMENDED, WAS ENTITLED TO BE IMMEDIATELY PROMOTED FROM CAPTAIN TO MAJOR BY REASON OF HAVING COMPLETED 17 YEARS' SERVICE, BUT WHOSE PROMOTION WAS NOT ACCOMPLISHED AND FORMALLY ANNOUNCED UNTIL SOMETIME LATER, IS NOT ENTITLED TO THE PAY AND ALLOWANCES OF A MAJOR UNTIL THE DATE THE PROMOTION WAS ANNOUNCED BY FORMAL ORDER.

IN THE SAID DECISION IT WAS STATED THAT: THIS STATUTE (ACT OF OCTOBER 14, 1942, SUPRA,) IS SPECIFIC IN PROVIDING THAT EVERY OFFICER OF THE ARMY SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE OF THE ORDER ANNOUNCING THE PROMOTION TO A HIGHER GRADE, UNLESS HE IS ENTITLED "UNDER SOME OTHER PROVISION OF LAW" TO RECEIVE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM AN EARLIER DATE AND, BEING INCONSISTENT WITH AND CONTRARY TO THE EARLIER PRACTICE WHICH WAS PREDICATED UPON THE NON-EXISTENCE OF A STATUTORY PROVISION FIXING SUCH DATE, IT NECESSARILY HAS THE LEGAL EFFECT OF SUPERSEDING THAT PRACTICE, EXCEPT WHERE SOME OTHER PROVISION OF LAW FIXES A DIFFERENT DATE FOR PAY PURPOSES.

ACCORDINGLY, IN ANSWER TO YOUR QUESTIONS, YOU ARE ADVISED THAT OFFICERS OF THE REGULAR ARMY PROMOTED UNDER ANY OF THE PROVISIONS CONTAINED IN TITLE V OF OFFICER PERSONNEL ACT OF 1947, SUPRA, ARE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE OF THE ORDER ANNOUNCING THEIR PROMOTION EVEN THOUGH SUCH DATE MAY BE LATER THAN THE DATE OF COMPLETION OF THE REQUISITE YEARS OF SERVICE FOR PROMOTION OR THE DATE OF ACCEPTANCE OF THE PROMOTION.