B-104336, SEPTEMBER 28, 1951, 31 COMP. GEN. 118

B-104336, SEPTEMBER 28, 1951, 31 COMP. GEN. 118

PAY - PROMOTIONS - GRADE REDETERMINATIONS UNDER MISSING PERSONS ACT A REDETERMINATION OF GRADE OF AN ARMY ENLISTED MAN UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, PROMOTING HIM TO THE GRADE OF FIRST SERGEANT WHILE IN A MISSING IN ACTION STATUS MAY NOT OPERATE TO ENTITLE HIM TO THE PAY OF SUCH HIGHER GRADE UNDER A REENLISTMENT CONTRACT IN THE GRADE OF PRIVATE FIRST CLASS VOLUNTARILY ENTERED INTO SUBSEQUENT TO THE DATE HE WAS RETURNED TO MILITARY CONTROL.

ASSISTANT COMPTROLLER GENERAL YATES TO JACINTO DELA CRUZ, SEPTEMBER 28, 1951:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 23, 1951, WITH ENCLOSURES REQUESTING REVIEW OF SETTLEMENT OF THIS OFFICE DATED MARCH 1, 1951, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AUTHORIZED FOR A FIRST SERGEANT AND THAT AUTHORIZED FOR A PRIVATE FIRST CLASS FOR THE PERIOD FROM AUGUST 1, 1945, TO JUNE 30, 1946, WHILE SERVING IN THE ARMY OF THE UNITED STATES.

IT APPEARS FROM THE RECORD THAT DURING THE PERIOD HERE INVOLVED YOU WERE DISCHARGED FROM THE PHILIPPINE SCOUTS, ARMY OF THE UNITED STATES, ON AUGUST 1, 1945, IN THE GRADE OF PRIVATE FIRST CLASS; THAT YOU WERE DISCHARGED ON JUNE 30, 1946, AND THAT YOU ENLISTED IN THE PHILIPPINE SCOUTS, REGULAR ARMY ON JULY 1, 1946. IT SEEMS TO BE YOUR CONTENTION THAT THE CLAIM IS PAYABLE UNDER THE AUTHORITY OF A " REDETERMINATION OF GRADES" WHICH APPARENTLY ISSUED ON SEPTEMBER 4, 1947, AT HEADQUARTERS, PHILIPPINES -1RYUKYUS COMMAND, APO 707, MADE UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED. THE SAID REDETERMINATION READS, IN PERTINENT PART, AS FOLLOWS:

1. ON THE BASIS OF EVIDENCE NOT AVAILABLE WHEN ORIGINAL DETERMINATION WAS MADE, THE GRADES OF JACINTO DELA CRUZ, ASN 6735141, NOW ON DUTY WITH YOUR ORGANIZATION, DURING THE PERIOD COVERED BY THE MISSING PERSONS ACT, WERE REDETERMINED ON 4 SEPTEMBER 1947 AS FOLLOWS:

CHART

GRADE FROM TO PFC

1 DEC 41 5 JAN 45 SGT

6 JAN 45 12 JAN 45 ST SGT

13 JAN 45 30 JUL 45

STATUS FROM TO DUTY

BELEAGUERED MIA 6 JAN 45 30

JUL 45

AS STATED ABOVE, THE RECORD INDICATES THAT YOU ENLISTED IN THE ARMY OF THE UNITED STATES ON AUGUST 1, 1945, IN THE GRADE OF PRIVATE FIRST CLASS AND SERVED IN SUCH GRADE UNTIL THE DATE OF YOUR DISCHARGE ON JUNE 30, 1946. THE ABOVE-QUOTED REDETERMINATION OF GRADES HELD BY YOU DURING A PERIOD COVERED BY THE MISSING PERSONS ACT IN A PRIOR ENLISTMENT CANNOT BE CONSIDERED AS AFFECTING YOUR GRADES OR STATUS IN YOUR ENLISTMENT ENTERED INTO ON AUGUST 1, 1945. YOUR ENLISTMENT ON AUGUST 1, 1945, UNQUESTIONABLY WAS A VOLUNTARY CONTRACT ENTERED INTO BETWEEN YOU AND THE UNITED STATES BY WHICH YOU WERE TO BE PAID THEREAFTER THE PAY AND ALLOWANCES OF THE GRADE IN WHICH YOU ENLISTED (PRIVATE FIRST CLASS) UNLESS AND UNTIL SUBSEQUENTLY APPOINTED OR REDUCED TO A DIFFERENT GRADE.

WITH RESPECT TO THE EFFECTIVE DATE OF A PROMOTION OF ENLISTED MEN OF THE ARMY, PARAGRAPH 2A OF ARMY REGULATIONS 615-5, DATED JUNE 30, 1943, AS CHANGED BY CHANGE NO. 1, DATED MARCH 30, 1944, READS AS FOLLOWS:

2. EFFECTIVE DATE.--- A. THE EFFECTIVE DATE OF AN APPOINTMENT IS THE DATE OF THE INSTRUMENT OF APPOINTMENT, UNLESS SUCH INSTRUMENT IS CONFIRMATORY OF ORAL ORDERS PREVIOUSLY ISSUED. WHERE AN APPOINTMENT IS MADE BY THE ORAL ORDERS OF AN OFFICER HAVING AUTHORITY TO MAKE APPOINTMENTS, SUCH ORDERS, WHEN LATER CONFIRMED IN WRITING, HAVE THE FORCE OF WRITTEN ORDERS. IN SUCH A CASE, THE DATE SHOWN IN THE WRITTEN ORDERS CANNOT BE EARLIER THAN THE DATE ON WHICH THE ORAL APPOINTMENT, CONFIRMED BY THE WRITTEN INSTRUMENT, WAS ACTUALLY MADE. SEE MS. COMP. GEN. B-39358, 12 FEBRUARY 1944.

UNDER THE PROVISIONS OF THE FOREGOING AND PRIOR ARMY REGULATIONS, AND THE UNIFORM HOLDINGS OF THE ACCOUNTING OFFICERS AND THE JUDGE ADVOCATE GENERAL OF THE ARMY, THE PROMOTION OF AN ENLISTED MAN DOES NOT BECOME EFFECTIVE UNTIL AN ORDER OF PROMOTION IS PUBLISHED. SEE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY 1912-1940, PAGE 95, AND HIS OPINION DATED NOVEMBER 1, 1946 (5 BULL. JAG 373): 3 COMP. GEN. 261. IN THE ABSENCE OF A CONTEMPORANEOUS ORDER OF PROMOTION ISSUED ON OR AFTER AUGUST 1, 1945, AND PRIOR TO JUNE 30, 1946, APPOINTING YOU TO THE GRADE OF FIRST SERGEANT, THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF YOUR CLAIM FOR THE PAY OF A FIRST SERGEANT FOR ANY PART OF THAT PERIOD. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND FOR THE REASONS STATED HEREIN THE ABOVE-MENTIONED SETTLEMENT DATED MARCH 1, 1951, IS SUSTAINED.