JULY 27, 1921, 1 COMP. GEN. 37

JULY 27, 1921, 1 COMP. GEN. 37

PAY FOR EXERCISING HIGHER COMMAND - ARMY OFFICERS A LIEUTENANT COLONEL OF THE ARMY TEMPORARILY DETAILED BY ORDER OF THE COMMANDING GENERAL TO A REGIMENT OTHER THAN HIS OWN FOR THE PURPOSE OF COMMANDING IT, AND WHO IS THE SENIOR OFFICER ON DUTY THEREWITH, AUTOMATICALLY EXERCISES THE HIGHER COMMAND OF COLONEL OF THE REGIMENT TO WHICH DETAILED BY REASON OF SENIORITY, AND ANY ORDER PURPORTING TO PLACE HIM IN COMMAND OF THAT REGIMENT IS UNNECESSARY AND MAY NOT BE MADE THE BASIS OF A CLAIM FOR ADDITIONAL PAY FOR EXERCISING HIGHER COMMAND UNDER THE ACT OF APRIL 26, 1898, 30 STAT., 365.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 27, 1921:

CHARLES J. FERRIS, MAJOR, U.S.A., RETIRED, REQUESTED JULY 12, 1921, RECONSIDERATION OF THE ACTION OF THE GENERAL ACCOUNTING OFFICE, WAR DEPARTMENT DIVISION, IN DISALLOWING BY SETTLEMENT NO. 21331, DATED JULY 7, 1921, HIS CLAIM FOR THE DIFFERENCE IN PAY BETWEEN THE GRADES OF COLONEL AND LIEUTENANT COLONEL FROM AUGUST 27 TO SEPTEMBER 23, 1917, AND FROM SEPTEMBER 25, 1917, TO JANUARY 4, 1918, WHILE IN COMMAND OF THE 315TH FIELD ARTILLERY AS A LIEUTENANT COLONEL.

THE RECORD DISCLOSES THAT MAJ. FERRIS, THEN A LIEUTENANT COLONEL IN THE EMERGENCY FORCES, WAS DIRECTED BY PARAGRAPH 73, SPECIAL ORDERS, NO. 195, WAR DEPARTMENT, DATED AUGUST 22, 1917, TO PROCEED TO CAMP LEE, VA., AND REPORT UPON ARRIVAL TO THE COMMANDING GENERAL, 80TH DIVISION, FOR ASSIGNMENT TO A REGIMENT OF LIGHT ARTILLERY. UPON REPORTING HE WAS ASSIGNED TO THE 314TH FIELD ARTILLERY. ON AUGUST 27, FIVE DAYS AFTER REPORTING FOR DUTY, HE WAS PLACED IN COMMAND OF THE 315TH FIELD ARTILLERY BY VERBAL ORDERS OF THE COMMANDING GENERAL, 80TH DIVISION, THERE BEING NO COLONEL OR LIEUTENANT COLONEL ON DUTY WITH THE 315TH FIELD ARTILLERY AT THAT TIME. IN SEPTEMBER, 1917, LIEUT.COL. RUSSELL P. REEDER WAS ASSIGNED TO THE 315TH FIELD ARTILLERY, AND REPORTED FOR DUTY WITH THE REGIMENT ON SEPTEMBER 24. THE NEXT DAY REEDER WAS PLACED ON DETACHED DUTY FOR A THREE MONTHS' COURSE OF INSTRUCTION, AND FERRIS WAS AGAIN DIRECTED BY ORDER OF THE DIVISION COMMANDER TO TAKE COMMAND AND WAS CONTINUED IN COMMAND UNTIL JANUARY 7, 1918, WHEN HE WAS RELIEVED FROM THE 315TH FIELD ARTILLERY, AND ORDERED TO REPORT TO THE 314TH FIELD ARTILLERY FOR DUTY. DURING THE WHOLE OF THIS PERIOD THE REGIMENT WAS IN TRAINING FOR OVERSEAS SERVICE AT CAMP LEE, VA.

INASMUCH AS THE APPROPRIATE GRADE FOR THE COMMAND OF A REGIMENT IS THAT OF COLONEL, AND AS HE REMAINED PERMANENTLY ASSIGNED TO THE THREE HUNDRED AND FOURTEENTH FIELD ARTILLERY WHEN TEMPORARILY DETAILED TO THE COMMAND OF THE THREE HUNDRED AND FIFTEENTH FIELD ARTILLERY, CLAIMANT ASSERTS THAT HE IS ENTITLED TO THE DIFFERENCE IN PAY BETWEEN THE GRADES OF COLONEL AND LIEUTENANT COLONEL FOR THE PERIOD AUGUST 27 TO SEPTEMBER 23 AND FROM SEPTEMBER 25, 1917, TO JANUARY 4, 1918.

IT IS UNNECESSARY AT THIS TIME TO DECIDE WHETHER THE CLAIMANT EXERCISED THE HIGHER COMMAND CONTINUOUSLY FOR A PERIOD OF THREE MONTHS AS REQUIRED BY THE ACT OF MAY 26, 1900, 31 STAT., 211, AND PARAGRAPH 1267, ARMY REGULATIONS, 1913-1917, BEFORE THE RIGHT TO THE PAY OF THE HIGHER COMMAND ACCRUES WHEN ALL OF THE OTHER CONDITIONS PRECEDENT HAVE BEEN MET, OR WHETHER HE WAS OPERATING AGAINST AN ENEMY WITHIN THE MEANING OF THE CONTROLLING STATUTE, THE ACT OF APRIL 26, 1898, 30 STAT., 365. IT HAS BEEN HELD, 26 COMP. DEC., 1074, THAT AN OFFICER IS NOT ENTITLED TO THE PAY OF THE HIGHER COMMAND WHEN PERMANENTLY TRANSFERRED TO AN ORGANIZATION FOR THE PURPOSE OF COMMANDING IT AND WHERE HE WOULD HAVE COMMANDED BY VIRTUE OF SENIORITY AND IN ACCORDANCE WITH PARAGRAPH 267, ARMY REGULATIONS, HAD NO ORDERS TO TAKE COMMAND BEEN ISSUED. SEE ALSO UNITED STATES V. MITCHELL, 205 U.S., 161; HUMPHREYS V. UNITED STATES, 38 CT.CLS., 689; 10 COMP. DEC., 389.

THE SAME REASONS WHICH OPERATE AS AN INHIBITION TO THE ALLOWANCE OF THE PAY OF THE HIGHER GRADE TO AN OFFICER FOR A COMMAND EXERCISED BY REASON OF SENIORITY WHEN PERMANENTLY TRANSFERRED TO AN ORGANIZATION AND IS THE SENIOR OFFICER THEREWITH, ALSO OPERATES AS AN INHIBITION WHEN AN OFFICER IS TEMPORARILY DETAILED TO AN ORGANIZATION FOR THE PURPOSE OF COMMANDING AND IS THE SENIOR OFFICER ON DUTY THEREWITH. IN EITHER EVENT THE OFFICER IS "SERVING WITH TROOPS" AND ORDERS TO COMMAND, AS DISTINGUISHED FROM ORDERS OF DETAIL, ARE EQUALLY AS SUPERFLUOUS AND NONSTATUTORY IN THE ONE CASE AS IN THE OTHER. NO ORDERS TO COMMAND WHEN UNNECESSARY CAN MAKE A CASE WITHIN THE STATUTE.