B-119517, MAR. 4, 1957

B-119517, MAR. 4, 1957

TO MR. SHELBY K. JETT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1956, IN EFFECT REQUESTING A REVIEW OF OUR SETTLEMENT DATED FEBRUARY 17, 1954, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND A CAPTAIN FOR 60 DAYS OF UNUSED LEAVE, AS OF OCTOBER 8, 1947, THE DATE OF YOUR RELEASE FROM ACTIVE DUTY IN THE ARMY OF THE UNITED STATES.

YOU REFER TO YOUR "CLAIM, CASE NO. IM-79269 CERTIFIED ON 15 NOVEMBER 1954 FOR THE AMOUNT OF $52.22," REPRESENTING DIFFERENCE IN PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND A CAPTAIN FOR THE PERIOD FROM APRIL 7 THROUGH MAY 2, 1953, WHILE YOU WERE ON ACTIVE DUTY FOR TRAINING AND SAY THAT YOU SHOULD ALSO HAVE BEEN PAID AT THE CORRECT RATE FOR THE 60 DAYS OF ACCRUED LEAVE AND FOR YOUR PERIOD OF SERVICE FROM DECEMBER 10, 1948, TO JANUARY 6, 1950.

THE RECORDS SHOW THAT YOU WERE APPOINTED SECOND LIEUTENANT, ARMY OF THE UNITED STATES, ON APRIL 23, 1943, THE APPOINTMENT BEING ACCEPTED BY YOU ON THE SAME DAY, AND THAT YOU WERE PROMOTED TO FIRST LIEUTENANT ON JANUARY 8, 1946. YOU WERE RELEASED FROM ACTIVE DUTY AS OF OCTOBER 8, 1947, BY SPECIAL ORDERS NO. 227, HEADQUARTERS, FORT MCPHERSON, GEORGIA, WHICH SPECIFIED THAT YOUR TEMPORARY ARMY OF THE UNITED STATES APPOINTMENT WOULD CONTINUE. BY A COMMUNICATION DATED OCTOBER 8, 1947, HEADQUARTERS, FORT MCPHERSON, YOU WERE INFORMED THAT YOU WERE TENDERED AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS, ARMY OF THE UNITED STATES, EFFECTIVE THAT DATE, IN THE GRADE OF CAPTAIN, IT BEING DEFINITELY PROVIDED IN THE COMMUNICATION THAT "YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SPECIFICALLY SO DIRECTED BY COMPETENT ORDERS.' NOTATION ON THE COMMUNICATION OF OCTOBER 8, 1947, INDICATES THAT THE APPOINTMENT, WHICH WAS MADE UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WAS ACCEPTED ON THE SAME DATE. BY A COMMUNICATION DATED NOVEMBER 26, 1952, YOU WERE INFORMED THAT YOU HAD BEEN APPOINTED FOR AN INDEFINITE TERM IN THE OFFICERS' RESERVE CORPS AS A RESERVE COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES, EFFECTIVE THAT DATE, IN THE GRADE OF CAPTAIN. THIS APPOINTMENT, WHICH WAS MADE UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND UNDER THE ARMED FORCES RESERVE ACT OF 1952, WAS ACCEPTED BY YOU ON DECEMBER 9, 1952.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES:

"ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY, AND ALLOWANCES, APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE * * *.'

IN SECTION 2 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, THE TERM "DISCHARGE" WAS DEFINED AS MEANING, IN THE CASE OF COMMISSIONED OFFICERS,"SEPARATION OR RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS.'

THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, PROVIDES 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 SUCH HIGHER GRADE UPON THE DATE THE ORDER IS ISSUED ANNOUNCING IT, UNLESS HE EXPRESSLY DECLINES IT, AND THAT HE 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. THESE STATUTORY PROVISIONS ARE NOT APPLICABLE IN YOUR CASE, HOWEVER, BECAUSE YOU WERE NOT PROMOTED TO A HIGHER GRADE ON OCTOBER 8, 1947, BUT WERE GIVEN AN ORIGINAL APPOINTMENT IN THE OFFICERS' RESERVE CORPS UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WITH THE DEFINITE PROVISION THAT "YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNLESS SPECIFICALLY SO DIRECTED BY COMPETENT ORDERS.' ACCORDINGLY, THE PAY AND ALLOWANCES APPLICABLE TO YOU ON OCTOBER 8, 1947, WITHIN THE MEANING OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, WERE THOSE OF A FIRST LIEUTENANT AND NOT THOSE OF A CAPTAIN.

SINCE THE INDEFINITE TERM APPOINTMENT IN THE UNITED STATES ARMY RESERVE IN THE GRADE OF CAPTAIN, WHICH WAS ACCEPTED BY YOU ON DECEMBER 9, 1952, WAS IN FULL FORCE AND EFFECT DURING THE PERIOD OF YOUR ACTIVE DUTY FOR TRAINING AS A MEMBER OF THE UNITED STATES ARMY RESERVE FROM APRIL 7, 1953, TO MAY 2, 1953, INCLUSIVE, YOU WERE ENTITLED TO ACTIVE DUTY PAY FOR THAT PERIOD AS A CAPTAIN.

YOUR CLAIM FOR DIFFERENCE BETWEEN PAY AND ALLOWANCES AS A CAPTAIN AND FIRST LIEUTENANT BELIEVED TO BE DUE YOU FOR THE PERIOD FROM DECEMBER 10, 1948, TO JANUARY 6, 1950, HAS NOT HERETOFORE RECEIVED CONSIDERATION BY OUR CLAIMS DIVISION AND CONSTITUTES A NEW CLAIM. IN ORDER TO RECEIVE CONSIDERATION, IT IS SUGGESTED THAT YOU FURNISH OUR CLAIMS DIVISION ALL THE DETAILS, INCLUDING THE SPECIFIC PERIOD OR PERIODS OF ACTIVE DUTY INVOLVED, CERTIFIED COPY OF THE ORDERS WHICH MAY HAVE BEEN ISSUED TO YOU, THE PLACE WHERE THE DUTY WAS PERFORMED AND THE ORGANIZATION. THIS INFORMATION MAY HASTEN THE DISPOSITION OF YOUR CLAIM.