B-100308, DECEMBER 3, 1954, 34 COMP. GEN. 273

B-100308, DECEMBER 3, 1954, 34 COMP. GEN. 273

NATIONAL GUARD - ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY - FEDERAL RECOGNITION REQUIREMENT AN OFFICER IN THE ILLINOIS NATIONAL GUARD WHO VOLUNTARILY RELINQUISHES HIS FEDERALLY RECOGNIZED COMMISSION AS COLONEL UPON THE ACCEPTANCE OF A COMMISSION AS BRIGADIER GENERAL IS NOT ENTITLED TO FEDERAL PAY FOR ARMORY DRILL AND PERFORMANCE OF ADMINISTRATIVE FUNCTIONS AS A COLONEL FOR THE PERIOD SUBSEQUENT TO HIS PROMOTION IN WHICH NO DUTIES WERE PERFORMED AS A COLONEL.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE ARMY, DECEMBER 3, 1954:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1954, REQUESTING DECISION AS TO WHETHER, IN VIEW OF THE FACTS AND CIRCUMSTANCES PRESENTED IN AN ATTACHED STATEMENT, BRIGADIER GENERAL JULIUS KLEIN MAY BE CONSIDERED TO HAVE BEEN PROPERLY PAID ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY AS A COLONEL IN THE ILLINOIS NATIONAL GUARD DURING THE PERIOD FEBRUARY 16, 1948, TO NOVEMBER 9, 1949, AND, IF THE ANSWER IS IN THE NEGATIVE, WHETHER THE OFFICER HAD A DE FACTO STATUS DURING THAT PERIOD WHICH WOULD ENTITLE HIM TO RETAIN PAYMENTS OF ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY RECEIVED FOR DUTY PERFORMED SUBSEQUENT TO HIS PROMOTION ON FEBRUARY 16, 1948, FROM COLONEL, QUARTERMASTER CORPS, TO BRIGADIER GENERAL, AND PRIOR TO HIS FEDERAL RECOGNITION ON NOVEMBER 10, 1949, AS A BRIGADIER GENERAL.

THE REPORTED FACTS ARE THE PRIOR TO FEBRUARY 16, 1948, THE OFFICER PERFORMED DUTY AS A FEDERALLY RECOGNIZED COLONEL WITH DUTY ASSIGNMENT AS GROUP COMMANDER, 623RD QUARTERMASTER GROUP. BY SPECIAL ORDERS NO. 37, ISSUED ON FEBRUARY 16, 1948, BY THE ADJUTANT GENERAL, STATE OF ILLINOIS, HE WAS PROMOTED TO BRIGADIER GENERAL WITH DUTY ASSIGNMENT OF COMMANDER, 109TH ANTIAIRCRAFT ARTILLERY BRIGADE. FEDERAL RECOGNITION IN THE GRADE OF BRIGADIER GENERAL WAS NOT GRANTED UNTIL NOVEMBER 10, 1949. IT IS ADMINISTRATIVELY REPORTED THAT DURING THE PERIOD MARCH 8, 1948, TO AUGUST 31, 1949, THE OFFICER RECEIVED PAYMENTS OF ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY AS A COLONEL TOTALING $2,204.76. EXCEPTIONS WERE TAKEN TO SUCH PAYMENTS FOR THE REASON THAT THE PAYEE CEASED TO FUNCTION AS A COLONEL, QUARTERMASTER CORPS, ON AND AFTER THE DATE OF HIS TRANSFER TO THE 109TH ANTIAIRCRAFT ARTILLERY BRIGADE IN THE GRADE OF BRIGADIER GENERAL.

IN 30 COMP. GEN. 199--- THE DECISION CITED IN THE STATEMENT ACCOMPANYING YOUR LETTER--- IT WAS HELD, QUOTING THE SYLLABUS:

A FEDERALLY RECOGNIZED NATIONAL GUARD ENGINEER OFFICER WHO TRANSFERRED TO THE AIR FORCE NATIONAL GUARD AND ASSUMED THE DUTIES OF THE AIR FORCE POSITION, ALTHOUGH NOT AT THAT TIME FEDERALLY RECOGNIZED AS AN AIR FORCE OFFICER, IS NOT ENTITLED TO FEDERAL PAY UNDER THE NATIONAL DEFENSE ACT, AS AMENDED, FOR ANY DRILLS OR FIELD TRAINING PERFORMED IN THE NEW POSITION PRIOR TO THE DATE HE WAS FEDERALLY RECOGNIZED AS AN OFFICER IN THE AIR FORCE NATIONAL GUARD.

IT WILL BE NOTED THAT EFFECTIVE FEBRUARY 16, 1948, GENERAL KLEIN ACCEPTED HIS COMMISSION AS BRIGADIER GENERAL AND ASSUMED HIS DUTIES AS SUCH IN A DIFFERENT ARM OF THE SERVICE, NAMELY, ANTIAIRCRAFT ARTILLERY, AND UNDER NATIONAL GUARD REGULATION NO. 20, PARAGRAPH 22B, HE WAS REQUIRED TO OBTAIN FEDERAL RECOGNITION IN THAT GRADE AND ARM OF SERVICE TO QUALIFY FOR FEDERAL PAY.

IT IS THE VIEW OF THE NATIONAL GUARD BUREAU THAT THE OFFICER SHOULD BE ALLOWED TO RETAIN FEDERAL PAY AS A COLONEL IN THE QUARTERMASTER CORPS FOR THE PERIOD FEBRUARY 16, 1948, TO NOVEMBER 9, 1949, EVEN THOUGH HE DID IN FACT RELINQUISH HIS GRADE OF COLONEL WHEN HE ACCEPTED HIS COMMISSION AND BEGAN TO FUNCTION AS A BRIGADIER GENERAL IN THE ANTIAIRCRAFT ARTILLERY, SINCE THE BUREAU WAS THE ONLY AGENCY AUTHORIZED UNDER THE PROVISIONS OF NGR-20, PARAGRAPH 29, TO WITHDRAW FEDERAL RECOGNITION. HOWEVER, THE MATTER OF WITHDRAWAL OF FEDERAL RECOGNITION IS NOT AT ISSUE SINCE THE OFFICER DID NOT EVEN ASSUME TO ACT AS COLONEL IN THE QUARTERMASTER CORPS, HAVING ACCEPTED HIS STATE COMMISSION AS A BRIGADIER GENERAL, AND FOR THE SAME REASON HE CANNOT BE CONSIDERED AS HAVING A DE FACTO STATUS AS COLONEL.

WHILE IT IS THE VIEW OF THE NATIONAL GUARD BUREAU THAT SECTION 501 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 826, REQUIRES THAT GENERAL KLEIN BE ALLOWED PAY FOR HIS ADMINISTRATIVE FUNCTIONS DURING THE PERIOD FEBRUARY 16, 1948, TO NOVEMBER 9, 1949, INCLUSIVE, IT APPEARS THAT SUCH VIEW IS BASED ON THE PREMISES THAT GENERAL KLEIN WAS, DURING THAT TIME, FEDERALLY RECOGNIZED AS A COLONEL. BUT, SINCE GENERAL KLEIN VOLUNTARILY RELINQUISHED HIS COMMISSION AS COLONEL UPON ACCEPTING HIS COMMISSION AS BRIGADIER GENERAL, IT DOES NOT APPEAR THAT SECTION 501 (C) OF THE CAREER COMPENSATION ACT OF 1949 GRANTS HIM ANY RIGHT TO PAY FOR THE PERFORMANCE OF ADMINISTRATIVE FUNCTIONS AS A COLONEL, A RANK NOT HELD BY HIM DURING THAT PERIOD. SEE 30 COMP. GEN. 199, AND DECISION OF NOVEMBER 25, 1952, B- 110553, TO LIEUTENANT COLONEL N. B. HILL, FINANCE CORPS, DEPARTMENT OF THE ARMY.

THE DISCUSSION WHICH ACCOMPANIED YOUR LETTER HAS RECEIVED CAREFUL CONSIDERATION, BUT APPARENTLY THE LONG-STANDING DECISIONS OF THIS OFFICE HAVE BEEN OVERLOOKED OR THEIR EFFECT FOR PURPOSES OF PAY MISCONSTRUED. SEE SPECIFICALLY DECISION OF OCTOBER 8, 1935, 15 COMP. GEN. 280.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT BRIGADIER GENERAL KLEIN WAS NOT ENTITLED TO PAY FOR ARMORY DRILL AND PERFORMANCE OF ADMINISTRATIVE FUNCTIONS AS A COLONEL IN THE ILLINOIS NATIONAL GUARD DURING THE PERIOD FEBRUARY 16, 1948, TO NOVEMBER 9, 1949, INCLUSIVE, AND THE AMOUNTS SO PAID SHOULD BE RECOVERED.