B-106161, NOV 29, 1951

B-106161, NOV 29, 1951

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL JAMES H. COMINGS, F.C., DISBURSING OFFICER, DEPT OF THE ARMY:

BY FIRST INDORSEMENT DATED OCTOBER 18, 1951, THE CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF OCTOBER 2, 1951, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF CAPTAIN FABIAN G. FRANCIS, ARMY OF THE UNITED STATES, RETIRED, IN THE AMOUNT OF $37.40, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A CAPTAIN AND THE RETIRED PAY OF A FIRST LIEUTENANT FOR THE MONTH OF JUNE, 1951.

EXTRACT COPY OF PARAGRAPH 57 OF SPECIAL ORDERS NO. 193, DEPARTMENT OF THE ARMY, DATED OCTOBER 4, 1950, ATTACHED TO THE VOUCHER, READS AS FOLLOWS:

"1ST LT FABIAN G. FRANCIS 01534969 MSC AUS HAVING BEEN DETERMINED TO BE PERM UNFIT FOR DY BY REASON OF PHYS DISABILITY OF 100 PERCENT INCURRED WHILE SERVING ON AD HIS RET FR ACTIVE SVC 31 OCT 1950 WITH GRADE AND RET PAY OF CAPT AS PROV BY SECS 402 409 AND 415 ACT CONGRESS APPROVED 12 OCT 1949 (PL 351 81ST CONG AS AMENDED) IS ANNOUNCED. HE IS REL FR ASG MEDICAL HOLDING DET PATIENTS WALTER REED AH, WASHINGTON, D.C. 31 OCT 1950 AND IS RETIRED AT VETERANS' ADMINISTRATION HOSP, MONTROSE, NY. PCS TDN."

ALSO ATTACHED TO THE VOUCHER IS A COPY OF LETTER ORDERS DATED OCTOBER 31, 1950, FROM THE COMMANDING OFFICER, MEDICAL HOLDING DETACHMENT, SIGNED "FOR THE COMMANDING OFFICER" BY CAPTAIN NOAH BURGESS, MEDICAL SERVICE CORPS, ASSISTANT COMMANDING OFFICER, MEDICAL HOLDING DETACHMENT, WHICH READS AS FOLLOWS:

"1. BY DIRECTION OF THE PRESIDENT, YOU ARE TEMPORARILY PROMOTED EFFECTIVE THIS DATE TO THE GRADE OF CAPTAIN IN THE ARMY OF THE UNITED STATES. (SEE IV, DA CIR 83, 1949).

"2. NEITHER AN ACCEPTANCE NOR AN OATH OF OFFICE IS NECESSARY AS THIS PROMOTION WILL BE REGARDED AS HAVING BEEN ACCEPTED ON THIS DATE UNLESS IT IS DECLINED IN WRITING."

WHILE IT IS NOT EXPRESSLY STATED THEREIN, IT DOES NOT APPEAR THAT DEPARTMENT OF THE ARMY CIRCULAR NO. 83, DATED JUNE 15, 1949, CITED AS AUTHORITY FOR SUCH PURPORTED TEMPORARY APPOINTMENT, WAS INTENDED TO APPLY TO OFFICERS WHO WERE BEING GRANTED RETIREMENT PAY. MOREOVER, BY ITS TERMS, THE CIRCULAR WAS TO BE EFFECTIVE ONLY UNTIL JUNE 15, 1950, UNLESS SOONER RESCINDED OR SUPERSEDED. HOWEVER, EVEN ASSUMING THAT IT WAS INTENDED TO APPLY TO OFFICERS WHO WERE BEING GRANTED RETIREMENT PAY AND THAT ITS EFFECTIVE DATE WAS EXTENDED TO OR BEYOND OCTOBER 31, 1950, THE DATE OF SUCH LETTER ORDERS; AND THAT CAPTAIN BURGESS WAS PROPERLY AUTHORIZED TO SIGN SUCH ORDERS SO AS TO EFFECT A VALID PROMOTION, SUCH A PROMOTION COULD NOT OPERATE TO AUTHORIZE CAPTAIN FRANCIS TO HAVE HIS RETIRED PAY COMPUTED ON THE PAY OF SUCH HIGHER GRADE SINCE IT WAS EFFECTED SUBSEQUENT TO THE ANNOUNCEMENT OF HIS RETIREMENT. SEE DECISION OF FEBRUARY 28, 1942, 21 COMP. GEN. 826, CASE OF JAMES G. BOYES. ACCORDINGLY, THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETAINED IN THIS OFFICE, PAYMENT THEREON NOT BEING AUTHORIZED.