B-120226, SEP 20, 1954

B-120226, SEP 20, 1954

PRECIS-UNAVAILABLE

SERGEANT FIRST CLASS ASUNCION B. C. CACATIAN, RA 39 845 665:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1954, CONCERNING THE ACTION TAKEN IN SETTLEMENT DATED APRIL 14, 1954, WHERE THE SUM OF $44.04 CERTIFIED TO BE DUE YOU FOR THE DIFFERENCE BETWEEN THE PAY OF A STAFF SERGEANT AND THAT OF A SERGEANT FOR THE PERIOD NOVEMBER 12, 1945, TO JANUARY 11, 1946, WAS APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS IN THE STATED SUM OF $753.22. ALSO, THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 14, 1954, CONCERNING THE SAME MATTER.

THE SETTLEMENT DISALLOWED THAT PORTION OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A STAFF SERGEANT AND THAT OF A SERGEANT FOR THE PERIOD JANUARY 30, 1946, TO NOVEMBER 22, 1948, AND FROM FEBRUARY 19, 1949, TO JUNE 30, 1949, FOR THE REASON THAT THE RECORDS SHOW THAT YOU ENLISTED IN THE GRADES OF SERGEANT AND CORPORAL, RESPECTIVELY, AND THAT SUCH ENLISTMENTS WERE VOLUNTARY CONTRACTS BY WHICH YOU WERE TO BE PAID THE PAY AND ALLOWANCES OF THOSE GRADES UNLESS AND UNTIL PROMOTED. FOR THE SAME REASON, IT WAS DETERMINED YOU WERE NOT ENTITLED TO THE DIFFERENCE BETWEEN THE PAY OF A SERGEANT AND THAT OF A CORPORAL FOR THE PERIOD JULY 1, 1949, TO JANUARY 22, 1952, THUS RESULTING IN AN OVERPAYMENT IN YOUR ACCOUNT IN THE STATED AMOUNT OF $753.22.

YOU CONTEND THAT DUE TO AN ADMINISTRATIVE ERROR YOUR PROMOTION TO THE GRADE OF STAFF SERGEANT WAS NOT PROPERLY ENTERED IN YOUR SERVICE RECORD; THAT AS A RESULT YOU ENLISTED IN THE ARMY ON JANUARY 30, 1946, AND FEBRUARY 19, 1949, AS A SERGEANT AND CORPORAL, RESPECTIVELY, IN STEAD OF STAFF SERGEANT AND SERGEANT; AND THAT SINCE THIS ERROR NOW HAS BEEN CORRECTED, YOU FEEL THAT YOU ARE ENTITLED NOT ONLY TO THE FULL AMOUNT CLAIMED BY THAT YOU ARE NOT INDEBTED BY REASON OF THE STATED OVERPAYMENT.

AN EXAMINATION OF YOUR PAY RECORD COVERING THE PERIOD JANUARY 1 TO JUNE 30, 1952, SHOWS A RETROACTIVE CREDIT IN THE AMOUNT OF $393.34 REPRESENTING THE DIFFERENCE BETWEEN THE PAY OF A SERGEANT AND THAT OF A CORPORAL FOR THE PERIOD JULY 1, 1949, TO NOVEMBER 11, 1950. THE PAY RECORD ALSO SHOWS THAT YOU WERE CREDITED WITH THE PAY OF A SERGEANT FROM NOVEMBER 12, 1950, TO JANUARY 22, 1952, AND COMMENCING JANUARY 23, 1952, YOU WERE CREDITED WITH THE PAY OF A SERGEANT, FIRST CLASS.

THE RECORDS FURTHER SHOW THAT YOU WERE INDUCTED INTO THE ARMY AND ORDERED TO ACTIVE SERVICE JULY 20, 1942, AND THAT YOU WERE DISCHARGED JANUARY 11, 1946, AS A SERGEANT. ALSO, THE RECORD SHOWS THAT YOU WERE PROMOTED FROM SERGEANT TO STAFF SERGEANT BY SPECIAL ORDERS NO. 83 DATED NOVEMBER 12, 1945. HENCE, YOU WERE ENTITLED TO THE DIFFERENCE BETWEEN THE PAY OF A STAFF SERGEANT AND THAT OF A SERGEANT FOR THE PERIOD NOVEMBER 12, 1945, TO JANUARY 11, 1946 (DATE OF DISCHARGE), AS ALLOWED IN THE SETTLEMENT OF APRIL 14, 1954. HOWEVER, AS ADMITTED BY YOU AND SUBSTANTIATED BY THE OFFICIAL PAY RECORDS, YOU ENLISTED IN THE REGULAR ARMY ON JANUARY 30, 1946, AND THEN AGAIN ON FEBRUARY 19, 1949, IN THE GRADES OF SERGEANT AND CORPORAL, RESPECTIVELY (DEPARTMENT OF THE ARMY CIRCULAR 202 DATED JULY 7, 1948, AND EFFECTIVE AUGUST 1, 1948, CHANGED THE TITLE OF THE THIRD PAY GRADE FROM STAFF SERGEANT TO SERGEANT AND THE TITLE OF THE FOURTH PAY GRADE FROM SERGEANT TO CORPORAL). HENCE, THE FACT THAT YOU MIGHT HAVE BEEN ENLISTED IN THE GRADE OF STAFF SERGEANT ON JANUARY 30, 1946, AND IN THE GRADE OF SERGEANT ON FEBRUARY 19, 1949, (YOU STATE YOU DID NOT LEARN OF YOUR PROMOTION TO STAFF SERGEANT UNTIL FEBRUARY 14, 1951), DOES NOT IN ITSELF GIVE YOU A RIGHT TO THE PAY OF SUCH GRADES UPON YOUR ENLISTMENTS ON THOSE DATES. SUCH ENLISTMENTS UNQUESTIONABLY WERE VOLUNTARY CONTRACTS ENTERED INTO BETWEEN YOU AND THE UNITED STATES BY WHICH YOU WERE TO BE PAID THE PAY AND ALLOWANCES OF THE GRADES IN WHICH YOU ENLISTED (SERGEANT AND CORPORAL) UNLESS AND UNTIL SUBSEQUENTLY APPOINTED OR REDUCED TO A DIFFERENT GRADE. AND THE FACT THAT YOUR RECORDS HAVE SINCE BEEN CHANGED BY THE ADJUTANT GENERAL AFFORDS NO PROPER BASIS TO ALLOW YOU THE PAY OF A GRADE OTHER THAN THAT WHICH YOU HELD BY ACTUAL APPOINTMENT. CONSISTENTLY HAS BEEN HELD THAT AN ENLISTED MAN IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THE GRADE ACTUALLY HELD BY HIM. SEE 15 COMP.GEN. 935. ALSO, THE FACT THAT YOUR PROMOTION WAS NOT TIMELY ENTERED IN YOUR SERVICE RECORD BY ARMY PERSONNEL DOES NOT AFFORD ANY PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM. IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP.GEN. 503; 54 AM. JUR. 608; BIGBY V. UNITED STATES, 188 U.S. 400.

FOR THE ABOVE REASONS, THE DISALLOWANCE OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF THE THIRD PAY GRADE AND THAT OF THE FOURTH PAY GRADE FOR THE PERIOD JANUARY 30, 1946 TO NOVEMBER 22, 1948, AND FROM FEBRUARY 19, 1949, TO JUNE 30, 1949, WAS PROPER. YOU WERE NOT ENTITLED TO THE RETROACTIVE CREDIT FOR THE DIFFERENCE BETWEEN THE PAY OF A SERGEANT AND THAT OF A CORPORAL FOR THE PERIOD OF JULY 1, 1949, TO NOVEMBER 11, 1950, RESULTING IN AN OVERPAYMENT IN YOUR ACCOUNT IN THE AMOUNT OF $393.34.

RESPECTING THE CREDIT IN YOUR ACCOUNT OF THE PAY OF A SERGEANT FROM NOVEMBER 12, 1950, TO JANUARY 22, 1952, IT APPEARS FROM THE RECORDS THAT YOU WERE PROMOTED TO THE GRADE OF SERGEANT ON NOVEMBER 12, 1950 (SPECIAL ORDERS NO. 273), AND THAT YOU SERVED IN THAT GRADE UNTIL JANUARY 23, 1952, WHEN YOU WERE PROMOTED TO SERGEANT, FIRST CLASS. HOWEVER, YOUR PROMOTION TO SERGEANT ON NOVEMBER 12, 1950, WAS SUBSEQUENTLY REVOKED, SUCH ACTION BEING BASED ON AN ERRONEOUS DETERMINATION THAT YOU ENLISTED IN THE GRADE OF SERGEANT ON FEBRUARY 19, 1949, AND ACTUALLY HELD THAT GRADE AT THE TIME THE PROMOTION ORDERS OF NOVEMBER 12, 1950, WERE ISSUED. IN VIEW OF THESE CIRCUMSTANCES AND SINCE YOU SERVED IN THE GRADE OF SERGEANT FROM NOVEMBER 12, 1950, UNTIL PROMOTED TO SERGEANT, FIRST CLASS, ON JANUARY 23, 1952, THE AMOUNT PAID TO YOU AS SERGEANT FOR SUCH PERIOD WILL NOT BE FURTHER QUESTIONED. HENCE, THE OVERPAYMENT IN YOUR ACCOUNT AMOUNTED TO $393.34, RATHER THAN $753.22, AS STATED IN THE SETTLEMENT. THIS LEAVES A BALANCE NOW DUE THAT UNITED STATES OF $349.30 ($393.34 LESS $44.04 WITHHELD IN THE SETTLEMENT OF APRIL 14, 1954).

RESPECTING YOUR STATEMENT THAT THE ACTION TAKEN IS CONTRARY TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, YOU ARE ADVISED THAT IT DOES NOT APPEAR FROM THE RECORD THAT YOUR RECORDS WERE CORRECTED PURSUANT TO THAT STATUTE. HOWEVER, SINCE THE PRIMARY AUTHORITY TO PAY CLAIMS ARISING FROM THE CORRECTION OF MILITARY RECORDS UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT HAS BEEN GIVEN TO THE DEPARTMENT CONCERNED, IN YOUR CASE THE DEPARTMENT OF THE ARMY, ANY INFORMATION RESPECTING THAT MATTER SHOULD BE REQUESTED FROM THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C. ..END :