B-119517, JUN. 6, 1957

B-119517, JUN. 6, 1957

TO MR. SHELBY K. JETT:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 22, 1957, REQUESTING A REVIEW OF OUR SETTLEMENT DATED APRIL 18, 1957, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND THOSE OF A CAPTAIN INCIDENT TO YOUR ACTIVE DUTY IN THE ARMY FROM DECEMBER 10, 1948, TO JANUARY 5, 1950. WE HAVE ALSO RECEIVED A LETTER DATED APRIL 29, 1957, FROM HONORABLE HOWARD H. BAKER, MEMBER OF CONGRESS, CONCERNING THE SAME MATTER.

THE RECORDS OF THE DEPARTMENT OF THE ARMY SHOW THAT YOU WERE AN ENLISTED MAN IN THE TENNESSEE NATIONAL GUARD, IN THE ARMY OF THE UNITED STATES AND IN THE ENLISTED RESERVE CORPS AT VARIOUS TIMES DURING THE PERIOD FROM APRIL 22, 1935, TO APRIL 22, 1943. YOU WERE APPOINTED SECOND LIEUTENANT, ARMY OF THE UNITED STATES, ON APRIL 23, 1943, AND ACCEPTED SUCH APPOINTMENT ON THE SAME DATE, AND WERE PROMOTED TO FIRST LIEUTENANT, ARMY OF THE UNITED STATES, ON JANUARY 8, 1946. YOU WERE ON ACTIVE DUTY AS AN OFFICER OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, FROM APRIL 23, 1943, TO OCTOBER 8, 1947, AND UPON YOUR RELEASE FROM ACTIVE DUTY YOU WERE APPOINTED IN THE OFFICERS' RESERVE CORPS AS A CAPTAIN BY LETTER DATED OCTOBER 8, 1947, HEADQUARTERS, FORT MCPHERSON, GEORGIA. THE LETTER OF APPOINTMENT EXPRESSLY PROVIDED THAT "YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SPECIFICALLY SO DIRECTED BY COMPETENT ORDERS.' IT APPEARS THAT-- AS INDICATED IN ITS 1ST INDORSEMENT DATED JUNE 24, 1952, TO THE CHIEF, ADJUSTMENT DIVISION, FINANCE OFFICE, U.S. ARMY--- THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY, DID NOT AT FIRST KNOW OF OR RECOGNIZE YOUR APPOINTMENT AS CAPTAIN, OFFICERS' RESERVE CORPS, BUT THAT, AS EVIDENCED BY ITS 2D INDORSEMENT DATED JUNE 8, 1953, TO THE COMMANDING GENERAL, THIRD ARMY, FORT MCPHERSON, GEORGIA, IT LATER AMENDED ITS RECORDS TO SHOW YOUR APPOINTMENT AS CAPTAIN, OFFICERS' RESERVE CORPS, ON OCTOBER 8, 1947. BEFORE SUCH AMENDMENT OF THE RECORDS, HOWEVER, YOU WERE ORDERED TO EXTENDED ACTIVE DUTY, EFFECTIVE DECEMBER 10, 1948, IN CATEGORY III, BY ORDERS DATED NOVEMBER 26, 1948, HEADQUARTERS THIRD ARMY, FORT MCPHERSON, GEORGIA, AND IN THOSE ORDERS YOU WERE CALLED FIRST LIEUTENANT "CMP-RES.' THOSE ORDERS DID NOT SHOW THE AUTHORITY FOR THE ACTIVE DUTY BUT WHEN YOU WERE RELEASED FROM SUCH ACTIVE DUTY ON JANUARY 5, 1950, THE RELEASE ORDERS OF THAT DATE (HEADQUARTERS, FORT BRAGG) STATED THAT YOU WERE BEING RELEASED FROM ACTIVE DUTY "UP SEC 515D, OFFICER PERSONNEL ACT OF 1947.' SUCH ORDERS ALSO STATED THE "AUS APMT MADE UP OFFICERS PERSONNEL ACT OF 1947 AND AUS/AC) APMT TERMINATE ON DATE OFF REVERTS TO AN INACTIVE STATUS.'

SUBSECTION (D) OF SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 907, PROVIDED AS FOLLOWS:

"TO THE EXTENT PROVIDED FROM TIME TO TIME BY APPROPRIATIONS FOR THIS PURPOSE, ANY OFFICER OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES MAY, WITH HIS OWN CONSENT, BE ORDERED TO ACTIVE FEDERAL DUTY FOR SUCH LENGTH OF TIME AS THE PRESIDENT MAY PRESCRIBE AND IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS MAY BE SO ORDERED WITHOUT HIS CONSENT. THE PRESIDENT MAY AT ANY TIME RELIEVE FROM ACTIVE DUTY ANY RESERVE OFFICER WHO IS SERVING ON ACTIVE DUTY. ANY OFFICER OF ANY RESERVE COMPONENT ORDERED INTO OR SERVING ON ACTIVE DUTY MAY, WITH HIS OWN CONSENT, BE TEMPORARILY APPOINTED IN A GRADE IN THE ARMY OF THE UNITED STATES, EITHER HIGHER OR LOWER THAN THE GRADE HELD BY HIM IN SUCH RESERVE COMPONENT, AND SUCH TEMPORARY APPOINTMENT SHALL NOT AFFECT THE APPOINTMENT AND GRADE HELD BY HIM IN HIS RESERVE COMPONENT.'

DEPARTMENT OF THE ARMY CIRCULAR NO. 27, FEBRUARY 3, 1948, OUTLINED THE VARIOUS CATEGORIES APPLICABLE TO OFFICERS OF THE CIVILIAN COMPONENTS OF THE ARMY OF THE UNITED STATES AND PRESCRIBED PROCEDURES FOR THE RECALL OF SUCH OFFICERS TO EXTENDED ACTIVE DUTY. IT WAS THERE PROVIDED, AMONG OTHER THINGS, THAT TO BE ELIGIBLE FOR EXTENDED ACTIVE DUTY IN THE SPECIFIED CATEGORIES THE APPLICANT MUST AGREE TO ACCEPT ACTIVE DUTY IN A GRADE NOT HIGHER THAN THAT IN WHICH HE SERVED IN THE ARMY OF THE UNITED STATES IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY.

IT IS NOT CLEAR FROM THE PRESENT RECORD WHETHER OR NOT YOU WERE GIVEN A TEMPORARY APPOINTMENT AS FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 515 (D) OF THE OFFICER'S PERSONNEL ACT OF 1947 (AS INDICATED IN YOUR ORDERS OF JANUARY 5, 1950), BUT THE RECORDS SHOW THAT UNDER THE ORDERS OF NOVEMBER 26, 1948, YOU WERE ORDERED TO EXTENDED ACTIVE DUTY AS FIRST LIEUTENANT AND THAT YOU CONTINUED TO SERVE AS FIRST LIEUTENANT--- AT LEAST AS A DE FACTO OFFICER IN THAT GRADE--- DURING THE PERIOD FROM DECEMBER 10, 1948, TO JANUARY 5, 1950, THE DATE OF YOUR RELEASE FROM ACTIVE DUTY. THE ORDERS OF NOVEMBER 26, 1948, CANNOT BE CONSTRUED AS HAVING HAD THE EFFECT OF "ORDERING" YOU TO ACTIVE DUTY IN YOUR ARMY RESERVE STATUS AS A FOR THE PERIOD FROM DECEMBER 10, 1948, TO JANUARY 5, 1950.

ACCORDINGLY, OUR SETTLEMENT DATED APRIL 18, 1957, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND THOSE OF A CAPTAIN FOR THE PERIOD FROM DECEMBER 10, 1948, TO JANUARY 5, 1950, IS SUSTAINED.