B-119508, OCTOBER 28, 1954, 34 COMP. GEN. 202

B-119508, OCTOBER 28, 1954, 34 COMP. GEN. 202

PAY - HIGHER COMMAND PAY - COMPETENCY OF ORDERS ASSIGNING HIGHER COMMAND THE HIGHER COMMAND PAY PROVISIONS OF THE ACT OF APRIL 26, 1898, CONTEMPLATE THAT AN OFFICER WHO EXERCISES A HIGHER COMMAND DOES SO UNDER ORDERS ISSUED BY THE PRESIDENT, OR AT HIS DIRECTION AND, THEREFORE, AN OFFICER WHO EXERCISED A HIGHER COMMAND BY AUTHORITY OF A PERSON OTHER THAN THE PRESIDENT IS NOT ENTITLED TO ANY ADDITIONAL PAY.

ACTING COMPTROLLER GENERAL WEITZEL TO BRIGADIER GENERAL KEARIE L. BERRY, OCTOBER 28, 1954:

REFERENCE IS MADE TO YOUR COMMUNICATION OF FEBRUARY 15, 1954, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN THAT AUTHORIZED FOR A COLONEL AND THAT AUTHORIZED FOR A BRIGADIER GENERAL FOR THE PERIOD FEBRUARY 8, 1942, TO JANUARY 20, 1946, SUCH REQUEST BEING BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF STILLMAN V. UNITED STATES, C.1CLS. NO. 49597, DECIDED DECEMBER 1, 1953.

IT APPEARS THAT ON FEBRUARY 8, 1942, FOLLOWING THE RELIEF OF BRIGADIER GENERAL SEGUNDO, YOU WERE SERVING IN THE GRADE OF COLONEL AND AS THE SENIOR AMERICAN OFFICER ON DUTY WITH THE FIRST REGULAR DIVISION, PHILIPPINE ARMY, WERE ASSIGNED BY VERBAL ORDERS OF GENERAL WAINWRIGHT TO COMMAND THAT ORGANIZATION. IT FURTHER APPEARS THAT SUCH ASSIGNMENT WAS MADE WITH THE KNOWLEDGE AND APPROVAL OF GENERAL MACARTHUR AND WAS CONFIRMED IN WRITING LATER THE SAME DAY. HOWEVER, IT DOES NOT APPEAR THAT YOUR ASSIGNMENT WAS MADE BY THE PRESIDENT OR BY HIS DIRECTION. FROM THE DATE OF SUCH ASSIGNMENT YOU WERE IN AN ABSENT STATUS WITHIN THE CONTEMPLATION OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP., 1001, ET SEQ., UNTIL AUGUST 20, 1954, WHEN YOU WERE LIBERATED AS A PRISONER OF WAR BY THE RUSSIANS. YOUR STATUS FROM AUGUST 21, 1945, TO JANUARY 20, 1946, IS NOT CLEAR. HOWEVER, IT DOES NOT APPEAR THAT YOU RESUME COMMAND OF THE SAID ORGANIZATION AND IT IS INDICATED THAT YOU WERE HOSPITALIZED DURING AT LEAST A PART OF THAT PERIOD.

SECTION 7 OF THE ACT OF APRIL 25, 1898, 30 STAT. 365, 10 U.S.C. 694, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT IN TIME OF WAR EVERY OFFICER SERVING WITH TROOPS OPERATING AGAINST AN ENEMY WHO SHALL EXERCISE, UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY, A COMMAND ABOVE THAT PERTAINING TO HIS GRADE, SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE GRADE APPROPRIATE TO THE COMMAND SO EXERCISED * * *.

SECTION 9 OF THE MISSING PERSONS ACT, 56 STAT. 145, AS AMENDED, PROVIDES, IN PART, THAT:

* * * DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE * * *.

BY LETTER DATED MAY 8, 1947, YOUR CLAIM FOR INCREASED PAY FOR EXERCISING THE HIGHER COMMAND WAS DISALLOWED BY THE ARMY FINANCE CENTER BECAUSE YOUR ASSIGNMENT TO COMMAND WAS NOT BY ORDERS OF COMPETENT AUTHORITY, THE PRESIDENT NOT HAVING DELEGATED HIS AUTHORITY IN THAT RESPECT TO FIELD COMMANDERS UNTIL 1943. UNDER THE EXPRESS LANGUAGE OF THE QUOTED PROVISIONS OF SECTION 9 OF THE MISSING PERSONS ACT, SUCH DETERMINATION AS TO YOUR ENTITLEMENT TO PAY AND ALLOWANCES DURING YOUR MISSING STATUS PERIOD IS CONCLUSIVE, AND IN THE ABSENCE OF A REDETERMINATION BY THE DEPARTMENT OF THE ARMY, THIS OFFICE MAY NOT GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM FOR SUCH PERIOD.

SUBSEQUENTLY, THE CLAIMS DIVISION OF THIS OFFICE, BY SETTLEMENT DATED AUGUST 4, 1947, ALSO DISALLOWED YOUR CLAIM. YOU WERE THE SENIOR AMERICAN OFFICER ON DUTY WITH THE DIVISION AT THE TIME OF YOUR ASSIGNMENT TO COMMAND AND THE ACTION OF THE CLAIMS DIVISION WAS BASED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF UNITED STATES V. MITCHELL, 205 U.S. 161, WHERE IT WAS HELD THAT AN OFFICER, EVEN THOUGH ASSIGNED TO A COMMAND ABOVE THAT PERTAINING TO HIS GRADE BY COMPETENT ORDERS, IS NOT ENTITLED TO THE PAY OF THE HIGHER COMMAND WHERE HE WOULD HAVE COMMANDED BY VIRTUE OF SENIORITY UNDER ARMY REGULATIONS. SEE ALSO, HUMPHREYS V. UNITED STATES, 38 C.1CLS. 689; 1 COMP. GEN. 37; 22 COMP. GEN. 133.

AS TO THE BASIS OF THE ACTION BY THE DEPARTMENT OF THE ARMY ON YOUR CLAIM, SECTION 1 OF THE ACT OF JUNE 4, 1920, 41 STAT. 811, AS AMENDED, 10 U.S.C. 507, FORMERLY THE 119TH ARTICLE OF WAR, PROVIDES:

WHEN TWO OR MORE OFFICERS OF THE SAME GRADE ARE ON DUTY IN THE SAME FIELD, DEPARTMENT, OR COMMAND, OR OF ORGANIZATIONS THEREOF, THE PRESIDENT MAY ASSIGN THE COMMAND OF THE FORCES OF SUCH FIELD, DEPARTMENT, OR COMMAND, OR OF ANY ORGANIZATION THEREOF, WITHOUT REGARD TO SENIORITY OF RANK IN THE SAME GRADE.

IT WAS HELD BY THE COURT OF CLAIMS IN THE CASE OF KINSOLVING V. UNITED STATES, 63 C.1CLS. 79, THAT IN VIEW OF SUCH PROVISIONS THE TERM "COMPETENT AUTHORITY" AS USED IN THE ACT OF APRIL 26, 1898, HAS REFERENCE TO THE PRESIDENT AND, WHERE THE ORDERS ARE NOT ISSUED BY THE PRESIDENT, OR BY HIS DIRECTION, ADDITIONAL PAY FOR EXERCISING A HIGHER COMMAND IS NOT AUTHORIZED. ALSO SEE CAMPBELL V. UNITED STATES, 63 C.1CLS. 133.

WITH RESPECT TO THE STILLMAN CASE, THE COURT'S CONCLUSION INDICATES A CHANGE IN VIEW FROM THAT REACHED IN THE KINSOLVING AND CAMPBELL CASES -- FOLLOWED AND APPLIED UNIFORMLY BY THE ADMINISTRATIVE AND ACCOUNTING OFFICERS SINCE THEY WERE DECIDED. HOWEVER, ALTHOUGH BROUGHT TO THE COURT'S ATTENTION, THE OPINION NEITHER MENTIONS SUCH CASES NOR STATES ANY REASON FOR THE CHANGE IN POINT OF VIEW. RESPECTING THE CONTINUATION OF THE STATUTORY BASIS FOR THE CONCLUSION IN THOSE CASES, SECTION 6 OF THE ACT OF MAY 5, 1950, 64 STAT. 145, WHICH DELETED THE WORDS " ARTICLE 119" FROM THE QUOTED SECTION 1 OF THE ACT OF JUNE 4, 1920, EXPRESSLY PROVIDES THAT:

THESE PROVISIONS AS AMENDED HEREIN SHALL BE CONSTRUED TO HAVE THE SAME FORCE, EFFECT, AND APPLICABILITY AS THEY NOW HAVE, BUT SHALL NOT BE KNOWN AS " ARTICLES OF WAR.' ( ITALICS SUPPLIED.)

ALSO, THERE IS NO INDICATION IN THE COURT'S DECISION THAT IT GAVE FULL CONSIDERATION TO THE MITCHELL CASE AND SUCH DECISION IGNORES THE "FINAL AND CONCLUSIVE" DETERMINATION MADE BY THE DEPARTMENT UNDER THE MISSING PERSONS ACT THAT THE INDIVIDUAL CONCERNED WAS NOT ENTITLED TO THE PAY AND ALLOWANCES CLAIMED. COMPARE MORENO V. UNITED STATES, 118 C.1CLS. 30. FOR SUCH REASONS, THE COURT'S DECISION IN THE STILLMAN CASE MAY NOT BE ACCEPTED AS AFFORDING A SUFFICIENT BASIS FOR FAVORABLE ACTION BY THIS OFFICE ON YOUR CLAIM.

REGARDING THAT PERIOD OF YOUR CLAIM FROM AUGUST 21, 1945, TO JANUARY 20, 1946, SUBSEQUENT TO YOUR LIBERATION AS A PRISONER OF WAR, IT MAY BE POINTED OUT FURTHER THAT SINCE THE JAPANESE SURRENDER AUGUST 14, 1945, WITH THE FORMAL SURRENDER CEREMONIES TAKING PLACE ON SEPTEMBER 2, 1945, AND IN VIEW OF YOUR APPARENT HOSPITAL STATUS, IT IS NOT UNDERSTOOD HOW YOU COULD BE REGARDED EITHER AS HAVING BEEN "OPERATING AGAINST AN ENEMY," OR AS STILL COMMANDING THE FIRST REGULAR DIVISION DURING SUCH PERIOD, SO AS TO ENTITLE YOU TO ADDITIONAL PAY UNDER THE 1898 ACT, EVEN IF THE OTHER STATUTORY CONDITIONS HAD BEEN MET.

UPON REVIEW IT IS CONCLUDED THAT YOUR CLAIM MAY NOT BE ALLOWED AND, ACCORDINGLY, THE SETTLEMENT OF AUGUST 4, 1947, ..END :