B-118045, JUNE 29, 1954, 33 COMP. GEN. 612

B-118045, JUNE 29, 1954, 33 COMP. GEN. 612

PAY - PROMOTIONS - EFFECTIVE DATE - RESERVE ARMY OFFICER PROMOTED BY LETTER OF APPOINTMENT WHILE ON ACTIVE DUTY FOR TRAINING A LETTER OF APPOINTMENT OF A RESERVE ARMY OFFICER TO A HIGHER GRADE IS AN "ORDER" ANNOUNCING A PROMOTION WITHIN THE MEANING OF THE ACT OF OCTOBER 14, 1942, AND THEREFORE AN OFFICER ORDERED TO ACTIVE DUTY FOR TRAINING AS A LIEUTENANT COLONEL, ARMY RESERVE, WHO BY LETTER OF APPOINTMENT WHILE ON SUCH DUTY WAS PROMOTED TO A COLONEL IN THE ARMY RESERVE EFFECTIVE THE DATE OF THE LETTER IS ENTITLED TO THE PAY OF THE HIGHER GRADE FOR ACTIVE DUTY TRAINING PERFORMED ON AND AFTER THE DATE OF SAID LETTER, HOWEVER A NEW OATH OF OFFICE IS REQUIRED UNLESS THE OFFICER'S SERVICE HAS BEEN CONTINUOUS FROM THE DATE OF TAKING AN EARLIER OATH.

ACTING COMPTROLLER GENERAL WEITZEL TO COLONEL F. E. BARR, DEPARTMENT OF THE ARMY, JUNE 29, 1954:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1953, REQUESTING AN ADVANCE DECISION ON AN ENCLOSED VOUCHER STATED IN FAVOR OF COLONEL EDWARD M. BROWDER, JR., FOR THE DIFFERENCE BETWEEN THE PAY OF A LIEUTENANT COLONEL AND THAT OF A COLONEL FOR THE PERIOD FROM OCTOBER 19, 1953, THROUGH OCTOBER 26, 1953, DURING WHICH HE WAS ON ACTIVE DUTY FOR TRAINING. YOUR LETTER WAS FORWARDED BY FIRST ENDORSEMENT FROM OFFICE CHIEF OF FINANCE, DATED DECEMBER 14, 1953, STATING SEVERAL MATTERS GIVING RISE TO DOUBT RESPECTING THE PROPRIETY OF THE PROPOSED PAYMENT, AS FOLLOWS:

INASMUCH AS THE OFFICER'S PROMOTION WAS EFFECTED BY AN APPOINTMENT, DOUBT EXISTS AS TO WHETHER (A) THE LETTER OF APPOINTMENT MAY BE CONSIDERED AN ORDER ANNOUNCING A PROMOTION WITHIN THE MEANING OF THE ACT OF 14 OCTOBER 1942 SO AS TO ENTITLE HIM TO THE PAY OF A COLONEL FROM THE DATE OF THE LETTER OF APPOINTMENT; (B) PAY IN THE HIGHER GRADE COMMENCES ON THE DATE OF ACCEPTANCE OF THE APPOINTMENT; OR (C) IN VIEW OF DECISION RENDERED BY YOUR OFFICE ON 10 OCTOBER 1946 (26 COMP. GEN. 245), THE OFFICER MUST SPECIFICALLY BE CALLED TO ACTIVE DUTY IN THE HIGHER GRADE IN ORDER TO BECOME ENTITLED TO PAY IN THAT GRADE.

IT APPEARS FROM THE INFORMATION WHICH HAS BEEN SUBMITTED THAT BY ORDERS DATED OCTOBER 7, 1953, THE OFFICER WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD OCTOBER 12 TO 26, 1953, IN THE RANK OF LIEUTENANT COLONEL, UNITED STATES ARMY RESERVE; THAT BY LETTER OF APPOINTMENT DATED OCTOBER 15, 1953, HE WAS APPOINTED A COLONEL EFFECTIVE THAT DATE IN THE ARMY RESERVE UNDER THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481; THAT HE ACCEPTED SUCH APPOINTMENT BY EXECUTING THE OATH OF OFFICE ON OCTOBER 19, 1953; AND THAT HE ACTUALLY SERVED ON ACTIVE DUTY FOR TRAINING FROM OCTOBER 12 TO OCTOBER 26, 1953.

THE ACT OF OCTOBER 14, 1942, 56 STAT. 787 (10 U.S.C. 558), PROVIDES AS FOLLOWS:

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 HIGHER GRADE UPON THE DATE OF THE ORDER ANNOUNCING IT UNLESS HE SHALL EXPRESSLY DECLINE SUCH PROMOTION, AND 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. NO SUCH OFFICER WHO SHALL HAVE SUBSCRIBED TO THE OATH OF OFFICE REQUIRED BY SECTION 1757, REVISED STATUTES, SHALL BE REQUIRED TO REVIEW SUCH OATH OR TO TAKE A NEW OATH UPON HIS PROMOTION TO A HIGHER GRADE, IF HIS SERVICE AFTER THE TAKING OF SUCH AN OATH SHALL HAVE BEEN CONTINUOUS.

IN DECISION OF OCTOBER 10, 1946, 26 COMP. GEN. 245, IT WAS HELD THAT A PERSON ON ACTIVE DUTY UNDER THE TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, MADE PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, 10 U.S.C. 484, COULD HOLD, CONCURRENTLY, AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS IN A HIGHER GRADE BUT WOULD NOT BE ENTITLED TO THE PAY, ALLOWANCES, RIGHTS, PRIVILEGES, ETC., OF THE HIGHER GRADE UNLESS HE SHOULD BE CALLED TO ACTIVE DUTY UNDER HIS COMMISSION IN THE OFFICERS' RESERVE CORPS. IN THE PRESENT CASE, THE OFFICER WAS ORDERED TO ACTIVE DUTY FOR TRAINING AS A LIEUTENANT COLONEL IN THE ARMY RESERVE AND RECEIVED THE PROMOTION AS A COLONEL IN THE ARMY RESERVE WHILE ON SUCH TRAINING. SINCE THE OFFICER WAS ON ACTIVE DUTY FOR TRAINING IN THE ARMY RESERVE AND HIS PROMOTION WAS IN THE ARMY RESERVE, IT WAS NOT NECESSARY FOR HIM TO RECEIVE ORDERS ADDRESSED TO HIM IN THE HIGHER GRADE CALLING HIM TO ACTIVE DUTY FOR TRAINING IN SUCH HIGHER GRADE TO BECOME ENTITLED TO THE PAY OF THAT GRADE WHILE PERFORMING ACTIVE DUTY FOR TRAINING UNDER COMPETENT ORDERS ON AND AFTER THE DATE OF THE SAID PROMOTION.

IN AN OPINION DATED FEBRUARY 2, 1953 ( JAGA 1952/9668, 3 DIG OPS NO. 1, RESERVE FORCES, SEC. 53.2), THE JUDGE ADVOCATE GENERAL OF THE ARMY CONCLUDED THAT A LETTER OF APPOINTMENT OF A RESERVE OFFICER TO A HIGHER GRADE IS AN "ORDER" ANNOUNCING A PROMOTION WITHIN THE MEANING OF THE ABOVE -QUOTED ACT OF OCTOBER 14, 1942, AND THAT, CONSEQUENTLY, SUCH A PROMOTION IS EFFECTIVE ON THE DATE THE LETTER OF APPOINTMENT IS ISSUED UNLESS THE OFFICER EXPRESSLY DECLINES TO ACCEPT IT. AND IN ANOTHER OPINION DATED MARCH 19, 1953 ( JAGA 1953/2719, 3 DIG OPS NO. 1, RESERVE FORCES, SEC. 53.9), THE JUDGE ADVOCATE GENERAL AGAIN CONCLUDED THAT A RESERVE OFFICER'S PROMOTION ANNOUNCED BY LETTER OF APPOINTMENT IS WITHIN THE PROVISIONS OF THE SAID ACT OF OCTOBER 14, 1942, AND STATED THAT " CONSEQUENTLY, NEITHER A NEW OATH OF OFFICE NOR OTHER EVIDENCE OF ACCEPTANCE OF THE APPOINTMENT TO THE HIGHER GRADE IS REQUIRED.' IT IS THE VIEW OF THIS OFFICE THAT SUCH CONCLUSIONS OF THE JUDGE ADVOCATE GENERAL ARE CORRECT (SUBJECT TO THE QUALIFICATION THAT THE STATUTE REQUIRES A NEW OATH IF THE SERVICE OF THE OFFICER AFTER TAKING AN EARLIER OATH SHALL NOT HAVE BEEN CONTINUOUS) AND THAT A PROMOTION SUCH AS THAT EFFECTED IN THE CASE OF COLONEL BROWDER SHOULD BE TREATED AS EFFECTIVE FOR PAY PURPOSES ON THE DATE OF THE "LETTER OF APPOINTMENT" BY WHICH IT WAS MADE.

ACCORDINGLY, IT IS CONCLUDED THAT COLONEL BROWDER IS ENTITLED TO THE DIFFERENCE BETWEEN THE PAY OF A LIEUTENANT COLONEL AND THAT OF A COLONEL FOR ACTIVE DUTY FOR TRAINING PERFORMED ON AND AFTER THE DATE OF THE LETTER APPOINTING HIM TO THE HIGHER RANK. PAYMENT TO THE OFFICER ON THAT BASIS IS AUTHORIZED, IF OTHERWISE CORRECT, AND THE VOUCHER RETURNED HEREWITH MAY BE MODIFIED TO INCLUDE THE PERIOD FROM OCTOBER 15 THROUGH OCTOBER 18, 1953.