B-144301, NOV. 22, 1960

B-144301: Nov 22, 1960

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0452564: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6. ANNOUNCEMENT WAS MADE OF CHANGES IN YOUR TEMPORARY DATES OF RANK AND ARMY OF THE UNITED STATES PROMOTION ELIGIBILITY DATES AS FIRST LIEUTENANT TO DECEMBER 16. " BUT THAT YOUR PAY AND ALLOWANCES WERE EFFECTIVE ONLY FROM DATE OF PUBLICATION OF THE PERTINENT PROMOTION ORDERS. YOUR ATTENTION WAS INVITED TO AR 15-185. THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS HAS ADVISED US INFORMALLY THAT SUCH AN APPLICATION WAS RECEIVED FROM YOU ON NOVEMBER 2. IS NOT PROPERLY FOR APPLICATION IN YOUR CASE. 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.

B-144301, NOV. 22, 1960

TO MAJOR WILLIAM GOODE, AUS, 0452564:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6, 1960, REQUESTING REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 30, 1960, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A FIRST LIEUTENANT AND THE PAY OF A CAPTAIN FOR THE PERIOD DECEMBER 30, 1950, THROUGH JULY 30, 1951, AND ALSO THE DIFFERENCE BETWEEN THE PAY OF A CAPTAIN AND THE PAY OF A MAJOR FOR THE PERIOD JULY 31, 1958, THROUGH MARCH 30, 1960.

PARAGRAPH 11, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 153, DATED JULY 31, 1951, ANNOUNCED YOUR TEMPORARY PROMOTION, FROM FIRST LIEUTENANT TO CAPTAIN, IN THE ARMY OF THE UNITED STATES, UNDER THE PROVISIONS OF SUBSECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 907, WITH DATE OF RANK JULY 31, 1951. PARAGRAPH 14, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 64, DATED MARCH 31, 1960, ANNOUNCED YOUR TEMPORARY PROMOTION, FROM CAPTAIN TO MAJOR, IN THE ARMY OF THE UNITED STATES, UNDER THE PROVISIONS OF 10 U.S.C. 3442 AND 3447, WITH DATE OF RANK AND PROMOTION ELIGIBILITY DATE AS AUGUST 28, 1958. BY PARAGRAPH 80, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 63, DATED MARCH 30, 1960, ANNOUNCEMENT WAS MADE OF CHANGES IN YOUR TEMPORARY DATES OF RANK AND ARMY OF THE UNITED STATES PROMOTION ELIGIBILITY DATES AS FIRST LIEUTENANT TO DECEMBER 16, 1946, AND AS CAPTAIN TO DECEMBER 30, 1950. THE OFFICE OF THE ADJUTANT GENERAL, BY LETTER DATED APRIL 12, 1960, ADVISED YOU THAT ORDERS HAD BEEN ISSUED PROMOTING YOU TO THE TEMPORARY GRADE OF MAJOR WITH DATE OF RANK "28 AUGUST 1958," BUT THAT YOUR PAY AND ALLOWANCES WERE EFFECTIVE ONLY FROM DATE OF PUBLICATION OF THE PERTINENT PROMOTION ORDERS. IN THIS CONNECTION, YOUR ATTENTION WAS INVITED TO AR 15-185, DATED JULY 18, 1955.

PARAGRAPH 6, SECTION III, OF AR 15-185, DATED JULY 18, 1955, PROVIDES THAT APPLICATION FOR CORRECTION OF MILITARY RECORDS BY THE SECRETARY OF THE ARMY, ACTING THROUGH THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, SHOULD BE SUBMITTED ON DD FORM 149 (APPLICATION FOR CORRECTION OF MILITARY OR NAVAL RECORDS) OR EXACT FACSIMILE THEREOF, AND SHOULD BE ADDRESSED TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C. THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS HAS ADVISED US INFORMALLY THAT SUCH AN APPLICATION WAS RECEIVED FROM YOU ON NOVEMBER 2, 1960, BUT THAT NO ACTION HAS BEEN TAKEN ON YOUR APPLICATION. HENCE, OUR DECISION DATED JULY 7, 1954, B-117367, 34 COMP. GEN. 7, RELATIVE TO AMOUNTS TO BE PAID AS A RESULT OF THE CORRECTION OF MILITARY OR NAVAL RECORDS, IS NOT PROPERLY FOR APPLICATION IN YOUR CASE.

THE ACT OF OCTOBER 14, 1942, 56 STAT. 787 (10 U.S.C. 558), IN EFFECT ON JULY 31, 1951, ROVIDED:

"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. * * *"

THE PROVISIONS OF THAT ACT WERE REPEALED BY SECTION 53B OF THE ACT OF AUGUST 10, 1956, 70A STAT. 673, AND REENACTED IN SECTIONS 3312, 3394, AND 3451 OF TITLE 10, U.S.C. UNDER THOSE STATUTORY PROVISIONS- - IN THE ABSENCE OF SOME OTHER PROVISION OF LAW AUTHORIZING SUCH PAY FROM AN EARLIER DATE--- THE PAY OF THE GRADE TO WHICH AN OFFICER OF THE ARMY OF THE UNITED STATES IS PROMOTED BEGINS ON THE DATE OF THE ANNOUNCEMENT OF SUCH PROMOTION, REGARDLESS OF THE FACT THAT HE MAY HAVE BEEN ELIGIBLE FOR THE PROMOTION AT AN EARLIER DATE. SEE 26 COMP. GEN. 475; 29 COMP. GEN. 188 AND 211. COMPARE 35 COMP. GEN. 649, WHERE AN OFFICER IN THE MARINE CORPS RESERVE WAS HELD TO BE ENTITLED TO THE PAY OF THE HIGHER GRADE TO WHICH PROMOTED IN THE MARINE CORPS RESERVE UNDER A SPECIFIC PROVISION OF LAW CONFERRING SUCH A RIGHT FROM AN EARLIER DATE.

APPARENTLY YOU HAVE BEEN PAID AS A CAPTAIN FROM JULY 31, 1951, AND AS A MAJOR FROM MARCH 31, 1960, THE DATES OF THE ORDERS ANNOUNCING YOUR TEMPORARY PROMOTIONS TO THOSE GRADES. WE KNOW OF NO PROVISIONS OF LAW AUTHORIZING SUCH PAY FROM AN EARLIER DATE IN THE CASE OF TEMPORARY PROMOTIONS IN THE ARMY OF THE UNITED STATES, WHETHER ON THE BASIS OF DATE OF RANK OR OTHERWISE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

THE ENCLOSURES WITH YOUR CLAIM ARE REQUIRED TO BE RETAINED AS A PART OF THE PERMANENT RECORDS OF OUR OFFICE.

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