B-124845, OCT. 27, 1955

B-124845, OCT. 27, 1955

TO THE REVEREND FRANCIS H. HART:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE ADJUTANT GENERAL OF THE ARMY, YOUR LETTER OF APRIL 23, 1955, WITH ENCLOSURES, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED JULY 20, 1953, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A STAFF SERGEANT, TO WHICH YOU BELIEVE YOU ARE ENTITLED, AND THE PAY OF A PRIVATE AND A PRIVATE, FIRST CLASS, WHICH YOU RECEIVED, FOR THE PERIOD FROM JANUARY 8, 1944, TO MAY 7, 1945, WHILE SERVING AS AN ENLISTED MAN IN THE ARMY OF THE UNITED STATES.

THE ADJUTANT GENERAL OF THE ARMY HAS REPORTED THAT YOU WERE REDUCED FROM THE GRADE OF STAFF SERGEANT TO PRIVATE ON JANUARY 8, 1944, FOR INEFFICIENCY, PROMOTED TO PRIVATE, FIRST CLASS, ON JANUARY 15, 1944, AND DISCHARGED ON MAY 25, 1945, IN THE GRADE OF PRIVATE, FIRST CLASS. IN A LETTER DATED JUNE 27, 1955, FROM THAT OFFICIAL YOU WERE ADVISED AS FOLLOWS:

"IT IS HELD BY THE DEPARTMENT OF THE ARMY THAT YOUR REDUCTION IN GRADE FROM STAFF SERGEANT TO PRIVATE WAS ACCOMPLISHED BY COMPETENT AUTHORITY AND THE ONLY MANNER IN WHICH YOU COULD AGAIN ATTAIN THE GRADE OF STAFF SERGEANT WAS BY PROMOTION TO THAT GRADE. THE RECORDS FAILS TO SHOW THAT SUCH PROMOTION ACTION WAS EFFECTED. IN THIS CONNECTION, YOU WERE NOT UNDER THE JURISDICTION OF THE XXVI FIGHTER COMMAND ON 7 MAY 1945; THEREFORE, THAT HEADQUARTERS COULD NOT PROMOTE YOU TO STAFF SERGEANT AT THE TIME AND SPECIAL ORDERS NUMBER 19, HEADQUARTERS XXVI FIGHTER COMMAND DATED 7 MAY 1945 PURPORTING TO RESTORE YOU TO THE GRADE OF STAFF SERGEANT EFFECTIVE 8 JANUARY 1944, WAS NOT LEGALLY EFFECTIVE.'

AS WE DO NOT MAINTAIN PERSONNEL RECORDS OF MEMBERS AND FORMER MEMBERS OF THE MILITARY SERVICE, WE NECESSARILY MUST RELY UPON THE RECORDS OF THE DEPARTMENT OF THE ARMY IN THE SETTLEMENT OF CLAIMS OF THIS NATURE AND MAY NOT ALLOW A CLAIM FOR PAY ABOVE THE GRADE SHOWN BY THOSE RECORDS.

WHILE IT APPEARS FROM THE RECORD THAT YOUR REDUCTION IN GRADE UNDER THE CIRCUMSTANCES INVOLVED MAY NOT HAVE BEEN MANDATORY UNDER THE REGULATIONS AND DIRECTIVES IN EFFECT AT THAT TIME, THERE IS NOTHING TO INDICATE THE REDUCTION WAS NOT A MATTER WITHIN THE DISCRETION AND AUTHORITY OF THE COMMANDING OFFICER WHO DIRECTED SUCH REDUCTION. IT LONG HAS BEEN THE RULE THAT AN ENLISTED MAN REDUCED IN GRADE BY ORDERS OF COMPETENT AUTHORITY MAY NOT, UPON THE ISSUANCE OF SUBSEQUENT ORDERS PURPORTING TO RESCIND THE REDUCTION ORDERS, BE PAID THE HIGHER RATE OF PAY RETROACTIVELY TO THE DATE OF REDUCTION. 15 COMP. GEN. 935. FURTHERMORE, ORDERS ISSUED BY A COMMANDING OFFICER PURPORTING TO PROMOTE OR REDUCE AN ENLISTED MAN WHO IS NO LONGER UNDER HIS COMMAND ARE WITHOUT EFFECT INSOFAR AS THE ENLISTED MAN'S RATE OF PAY IS CONCERNED. THEREFORE, SINCE YOU HAD BEEN TRANSFERRED FROM THE XXVI FIGHTER COMMAND PRIOR TO THE ORDERS OF MAY 7, 1945, PURPORTING TO RESCIND THE ORDERS WHICH REDUCED YOU IN GRADE, SUCH ORDERS OF MAY 7, 1945, MAY NOT BE CONSIDERED AS ENTITLING YOU TO THE PAY OF SUCH HIGHER GRADE FROM AND AFTER THAT DATA.

ACCORDINGLY, UPON THE BASIS OF THE PRESENT RECORD YOUR CLAIM MAY NOT RECEIVE FAVORABLE CONSIDERATION AND THE SETTLEMENT OF JULY 20, 1953, IS SUSTAINED.

AS YOU WERE NOT ENTITLED TO THE PAY OF A STAFF SERGEANT FOR ANY PERIOD AFTER JANUARY 7, 1944, THE ADDITIONAL PAYMENT OF $34.79 ON VOUCHER NO. 1716, JULY 1945 ACCOUNTS OF LELAND H. RICE, AFTER YOUR DISCHARGE, WAS ERRONEOUS. THAT AMOUNT SHOULD BE REFUNDED BY YOU IN THE FORM OF A BANK DRAFT, CHECK OR POSTAL MONEY ORDER MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., REFERRING TO CLAIM NO. Z 1413936.