B-128203, MAR. 5, 1957

B-128203, MAR. 5, 1957

TO MR. ADRIANO C. GABRIEL:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1956, REQUESTING RECONSIDERATION OF THAT PART OF OUR DECISION TO YOU DATED AUGUST 27, 1956, B-128203, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A MASTER SERGEANT AND THAT OF A CORPORAL FOR THE PERIOD FEBRUARY 11, 1945, TO OCTOBER 31, 1945.

YOU CONTEND THAT WHEN YOU WERE RETURNED TO MILITARY CONTROL YOU INSISTED THAT THE ARMY ENLIST YOU IN THE GRADE OF MASTER SERGEANT, BUT SINCE THE RECORDS AT THAT TIME SHOWED YOUR PREVIOUS GRADE AS CORPORAL, YOU WERE FORCED TO ENLIST IN THAT GRADE. YOU EXPRESS THE OPINION THAT THE REDETERMINATION OF YOUR GRADES FOR THE PERIOD PRIOR TO FEBRUARY 11, 1945, WHILE YOU WERE IN A MISSING STATUS, SHOULD EXTEND TO SUBSEQUENT ENLISTMENTS NOT COVERED BY THE MISSING PERSONS ACT.

AS STATED IN OUR DECISION OF AUGUST 27, 1956, THE DEPARTMENT OF THE ARMY REPORTED THAT YOU WERE IN A CASUALTY STATUS WITHIN THE MEANING OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C., APP., 1001, DURING THE PERIOD AUGUST 1, 1942, TO FEBRUARY 10, 1945, AND THAT YOU WERE RETURNED TO MILITARY CONTROL ON FEBRUARY 11, 1945. IT WAS POINTED OUT IN THE DECISION THAT THE REDETERMINATION OF GRADES HELD BY YOU (WHICH WAS MADE ON AUGUST 25, 1947, SHOWING THAT YOU HELD THE GRADE OF MASTER SERGEANT DURING THE PERIOD AUGUST 1, 1942, TO FEBRUARY 10, 1945) DURING THE PERIOD COVERED BY THE MISSING PERSONS ACT IN A PRIOR ENLISTMENT CANNOT BE CONSIDERED AS AFFECTING YOUR PAY GRADE OR STATUS IN YOUR ENLISTMENT ENTERED INTO ON FEBRUARY 11, 1945, BUT MUST BE LIMITED TO THE PERIOD YOU WERE IN A CASUALTY STATUS UNDER THE MISSING PERSONS ACT DURING THE ENLISTMENT PERIOD IN WHICH YOU WERE SERVING PRIOR TO FEBRUARY 11, 1945. WE ALSO SAID THAT YOUR ENLISTMENT ON FEBRUARY 11, 1945, IN THE GRADE OF CORPORAL, UNQUESTIONABLY WAS A VOLUNTARY CONTRACT ENTERED INTO BETWEEN YOU AND THE UNITED STATES BY WHICH YOU WERE TO BE PAID THEREAFTER THE PAY AND ALLOWANCE OF THE GRADE IN WHICH YOU ENLISTED UNLESS AND UNTIL SUBSEQUENTLY PROMOTED OR REDUCED TO A DIFFERENT GRADE. WE CONCLUDE THAT SINCE THE RECORD SHOWED THAT YOU WERE PAID AS A PRIVATE, FIRST CLASS, FROM FEBRUARY 11 TO 24, 1945, AND AS A CORPORAL FROM FEBRUARY 25 TO OCTOBER 31, 1945, AND SINCE YOU HELD THE GRADE OF CORPORAL AT LEAST DURING THE PERIOD FEBRUARY 25, 1945, TO OCTOBER 31, 1945, YOU WERE ENTITLED ONLY TO THE PAY OF A CORPORAL FOR THAT PERIOD. 31 COMP. GEN. 118.

AS STATED ABOVE, SINCE YOUR ENLISTMENT ON FEBRUARY 11, 1945, WAS IN THE GRADE OF CORPORAL AND SINCE YOU HELD THAT GRADE AT LEAST DURING THE PERIOD FEBRUARY 25, 1945, TO OCTOBER 31, 1945, YOU WERE ENTITLED ONLY TO THE PAY OF A CORPORAL FOR THAT PERIOD, NOTWITHSTANDING THE ABSENCE OF OFFICIAL RECORDS AT THAT TIME, AS YOU NOW ALLEGE, OR YOUR EFFORTS TO ENLIST IN A HIGHER GRADE. ALSO, SINCE THE DEPARTMENT OF THE ARMY, UNDER THE MISSING PERSONS ACT, DETERMINED THAT YOU WERE IN A CASUALTY STATUS FROM AUGUST 1, 1942, TO FEBRUARY 10, 1945, THERE IS NO AUTHORITY TO EXTEND THAT DETERMINATION TO COVER ANY SUBSEQUENT PERIODS. CF. MORENO V. UNITED STATES, 118 C.CLS. 30, CERTIORARI DENIED, 342 U.S. 814.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM FOR THE PERIOD FEBRUARY 11, 1945, TO OCTOBER 31, 1945, MUST BE AFFIRMED.