B-148541, NOV. 5, 1962

B-148541, NOV. 5, 1962

TO DR. HOWARD LAITIN:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1962, CONCERNING YOUR COUNTERCLAIM FOR THE DIFFERENCE IN THE PAY AND ALLOWANCES OF A SPECIALIST SECOND CLASS AND THAT OF A FIRST LIEUTENANT, UNITED STATES ARMY RESERVE, FOR THE PERIOD JANUARY 19 THROUGH 27, 1957.

WE ADVISED YOU IN OUR LETTER OF JUNE 21, 1962, B-148541, CONCERNING YOUR NONENTITLEMENT TO THE PAY AND ALLOWANCES CLAIMED, BASED ON OUR CONCLUSION THAT WHILE YOUR COMMISSIONED STATUS IN THE RESERVES BECAME EFFECTIVE ON THE DATE YOU TOOK OATH AS A FIRST LIEUTENANT, APPARENTLY ON JANUARY 19, 1957, YOU WERE NOT ENTITLED TO PAY AND ALLOWANCES OF THAT GRADE PRIOR TO JANUARY 28, 1957, THE EFFECTIVE DATE OF YOUR ACTIVE DUTY, AS SPECIFIED IN YOUR ORDERS OF JANUARY 15, 1957.

YOU EXPRESS THE BELIEF THAT SINCE YOU OFFICIALLY AND NECESSARILY COMPLIED WITH ORDERS IN NOVEMBER 1956, AND ON JANUARY 19, 1957, YOU ACCEPTED AN APPOINTMENT AS A FIRST LIEUTENANT, YOU ARE ENTITLED TO THE AMOUNT CLAIMED UNDER PARAGRAPH 3A, ARMY REGULATIONS 35-1705 WHICH WAS QUOTED BY YOU AND READS AS FOLLOWS:

"GENERAL. MEMBERS ON ACTIVE DUTY, OR PARTICIPATING IN FULL-TIME TRAINING, TRAINING DUTY WITH PAY OR OTHER FULL-TIME DUTY, WILL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED, OR IN WHICH DISTRIBUTED, PURSUANT TO PARAGRAPH 4, IN ACCORDANCE WITH CUMULATIVE YEARS OF SERVICE.'

THE ORDERS WITH WHICH YOU STATE YOU COMPLIED IN NOVEMBER 1956 WERE ADDRESSED TO YOU IN YOUR THEN CAPACITY OF AN ENLISTED MAN AND RELATED TO THE PERFORMANCE OF DUTY IN THAT STATUS, APPARENTLY AT FORT DIX, NEW JERSEY. UPON REPORTING FOR DUTY AT THAT PLACE, SUCH ORDERS WERE FULLY EXECUTED AS FAR AS THE REGULATIONS WERE CONCERNED WHICH PROVIDED THAT THE PAY STATUS OF A RESERVE MEMBER BEGINS ON THE DAY THAT HE "OFFICIALLY AND NECESSARILY COMPLIES WITH THE ORDER CALLING HIM TO ACTIVE DUTY.' SUCH ORDERS HAVE NO BEARING ON YOUR CLAIM SINCE THEY RELATED TO THE COMMENCEMENT OF YOUR PAY AS AN ENLISTED MAN. THE ORDERS WHICH GOVERNED YOUR RIGHT TO THE PAY AND ALLOWANCES OF AN OFFICER UNDER SUCH REGULATIONS WERE THE ORDERS OF JANUARY 15, 1957, WHICH DIRECTED YOU TO REPORT FOR ACTIVE DUTY AS AN OFFICER EFFECTIVE JANUARY 28, 1957. ALTHOUGH YOU ACCEPTED AN APPOINTMENT AS AN OFFICER ON JANUARY 19, 1957, YOU WERE AN OFFICER ON INACTIVE DUTY UNTIL YOU COMPLIED WITH YOUR ACTIVE DUTY ORDERS ON JANUARY 28, 1957, AND COMMENCED TRAVEL TO YOUR FIRST DUTY STATION AS AN OFFICER AT FORT SAM HOUSTON, TEXAS.

WHILE IT APPEARS THAT YOU SHOULD HAVE BEEN DISCHARGED AS AN ENLISTED MAN BEFORE YOU BECAME AN OFFICER, SINCE SUCH DISCHARGE WAS NOT ISSUED UNTIL JANUARY 27, 1957, RETENTION OF THE PAY RECEIVED BY YOU FROM JANUARY 19 TO 27, 1957, HAS NOT BEEN QUESTIONED BECAUSE IT APPEARED THAT YOU SERVED IN THE DE FACTO STATUS OF AN ENLISTED MAN DURING THAT TIME. WHILE IT IS DOUBTFUL THAT ANY LEGAL RIGHT TO PAY ACCRUED FOR THE DUTY PERFORMED AS AN ENLISTED MAN DURING THAT PERIOD DUE TO THE FACT THAT YOU WERE AN OFFICER IN AN INACTIVE DUTY STATUS AT THAT TIME, RETENTION OF THE PAY RECEIVED IS REGARDED AS PROPER UNDER THE DE FACTO RULE. A DE FACTO STATUS PERMITS ONLY RETENTION OF AMOUNTS PREVIOUSLY PAID. SUCH A STATUS CANNOT FORM THE BASIS FOR A PAYMENT OF PAY AND ALLOWANCES. YOU, OF COURSE, WERE NOT REQUIRED TO PERFORM THE ACTIVE DUTIES OF AN OFFICER AT ANY TIME PRIOR TO JANUARY 28 AND IT IS CLEAR THAT NO RIGHT TO THE PAY AND ALLOWANCES OF AN OFFICER ACCRUED TO YOU UNTIL YOU ENTERED ON ACTIVE DUTY AS AN OFFICER.

CONCERNING YOUR REQUEST FOR INFORMATION AS TO THE STEPS YOU SHOULD TAKE TO OBTAIN WHAT YOU REGARD AS "AN ADEQUATE CONSIDERATION OF THIS MATTER," YOU ARE ADVISED THAT YOUR CONTENTIONS HAVE RECEIVED CAREFUL AND EXHAUSTIVE CONSIDERATION. THE DECISIONS OF THIS OFFICE ARE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT (31 U.S.C. 71, 74) AND NO FURTHER CONSIDERATION WILL BE GIVEN THE MATTER UNLESS YOU HAVE ADDITIONAL INFORMATION NOT HERETOFORE CONSIDERED. IN THE ABSENCE OF SUCH INFORMATION, YOU ARE AGAIN REQUESTED TO REMIT THE AMOUNT OF YOUR INDEBTEDNESS TO THE GOVERNMENT, $99, WITHOUT FURTHER DELAY. IN VIEW OF THE TIME WHICH HAS ELAPSED SINCE YOU WERE INFORMED OF YOUR INDEBTEDNESS, THE MATTER WILL BE REFERRED TO THE APPROPRIATE UNITED STATES DISTRICT ATTORNEY FOR COLLECTION ACTION, IF PAYMENT IS NOT MADE WITHIN 30 DAYS.