B-131169, MAY 3, 1957

B-131169, MAY 3, 1957

TO COLONEL HARRY A. BALLF, USAR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 8, 1957, REQUESTING A REVIEW OF OUR SETTLEMENT DATED JANUARY 24, 1957, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES AUTHORIZED FOR A LIEUTENANT COLONEL AND THOSE AUTHORIZED FOR A COLONEL FOR THE PERIOD FROM JUNE 24, 1947, TO DECEMBER 31, 1949.

THE OFFICIAL RECORDS OF THE DEPARTMENT OF THE ARMY SHOW THAT YOU WERE APPOINTED MAJOR, RESERVE, ON AUGUST 23, 1939, WHICH APPOINTMENT WAS ACCEPTED BY YOU ON AUGUST 31, 1939, WHICH APPOINTMENT WAS ACCEPTED BY YOU ON AUGUST 31, 1939; THAT YOU ENTERED ON ACTIVE DUTY ON JULY 22, 1940; AND THAT ON JUNE 6, 1942, YOU WERE PROMOTED TO LIEUTENANT COLONEL, ARMY OF THE UNITED STATES. BY A LETTER DATED JUNE 24, 1947, HEADQUARTERS, EUROPEAN COMMAND, APO 757, YOU WERE TENDERED A 5-YEAR APPOINTMENT IN THE OFFICERS' RESERVE CORPS, ARMY OF THE UNITED STATES, EFFECTIVE THAT DATE, IN THE GRADE OF COLONEL, IT BEING EXPRESSLY PROVIDED IN SUCH LETTER THAT "THIS DOES NOT AFFECT YOUR CURRENT ACTIVE DUTY STATUS AND YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SO DIRECTED BY COMPETENT ORDERS.' SUCH APPOINTMENT, WHICH WAS MADE UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WAS ACCEPTED BY YOU ON JULY 14, 1947. IN THE DEPARTMENT OF THE ARMY'S STATEMENT OF SERVICE ON DD FORM 13 IT IS SHOWN UNDER "REMARKS" THAT YOU WERE "SERVING AS MAJOR, FA, RES AND LT COL, AUS, ON 24 JUNE 1947, DATE OF PROMOTION TO COLONEL, RES.' ORDERS DIRECTING THE PERFORMANCE OF ACTIVE DUTY UNDER YOUR RESERVE APPOINTMENT AS COLONEL WERE NOT ISSUED AND, THEREFORE, AS CONTEMPLATED BY YOUR ACTIVE DUTY AND PROMOTION ORDERS WHEN READ IN THE LIGHT OF THE EXPRESS PROVISIONS OF THE LETTER APPOINTING YOU A COLONEL IN THE OFFICERS' RESERVE CORPS, YOU CONTINUED TO SERVE ON ACTIVE DUTY AS LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, UNTIL YOU WERE RELIEVED FROM ACTIVE DUTY, EFFECTIVE DECEMBER 31, 1949.

YOU CONTEND THAT YOUR SITUATION IS IDENTICAL WITH THAT OF THE OFFICER WHOSE CASE WAS CONSIDERED IN OUR DECISION OF JUNE 9, 1954, B 118045, 33 COMP. GEN. 612, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

"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 ONAND 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.'

YOU SAY THAT YOU WERE ORDERED TO ACTIVE DUTY AS A MAJOR, FIELD ARTILLERY RESERVE, EFFECTIVE JULY 22, 1940, FOR ONE YEAR; THAT YOU WERE CONTINUED ON THAT ACTIVE DUTY TO JULY 21, 1942, BY ORDER DATED MAY 6, 1941; AND THAT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, YOU WERE CONTINUED ON ACTIVE DUTY FOR AN INDEFINITE PERIOD, WHICH INDEFINITE PERIOD OF ACTIVE DUTY CONTINUED UNTIL DECEMBER 31, 1949. YOU CONTEND THAT YOUR RESERVE STATUS WAS NOT CHANGED BY YOUR TEMPORARY APPOINTMENT AND PROMOTION TO LIEUTENANT COLONEL IN THE ARMY OF THE UNITED STATES AND THAT YOUR PERMANENT APPOINTMENT WAS NOT THEREBY VACATED. IT IS ON SUCH BASIS THAT YOU URGE THAT YOUR SITUATION IS IDENTICAL WITH THAT OF THE OFFICER WHOSE CASE WAS CONSIDERED IN THE DECISION OF JUNE 29, 1954, WHO WAS ORDERED TO ACTIVE DUTY FOR TRAINING AS A LIEUTENANT COLONEL IN THE ORGANIZED RESERVE CORPS, AND WHO WAS PROMOTED TO A COLONEL IN THE ORGANIZED RESERVE CORPS WHILE ON SUCH ACTIVE DUTY. ALSO, YOU SAY THAT ALL LETTERS OF APPOINTMENT IN SUCH CASES CONTAIN THE IDENTICAL WORDING AS TO NOT PERFORMING THE DUTIES OF AN OFFICER UNDER THE APPOINTMENT UNTIL SO DIRECTED BY COMPETENT ORDERS AND THAT THE LETTER ITSELF CONSTITUTES SUCH COMPETENT ORDERS WHERE THE OFFICER IS PRESENTLY ON DUTY WHEN HE RECEIVES THE PROMOTION.

IN OUR DECISION OF OCTOBER 10, 1946, 26 COMP. GEN. 245, IT WAS HELD THAT WHILE, IN THE ABSENCE OF STATUTORY AUTHORITY THEREFOR, ACTIVE DUTY UNDER BOTH COMMISSIONS AT THE SAME TIME WOULD BE INCOMPATIBLE, THERE WOULD APPEAR TO BE NO STATUTE OR LEGAL PRINCIPLE WHICH WOULD PRECLUDE A PERSON FROM CONCURRENTLY HOLDING A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, UNDER THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, AND AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS, AND THAT, HENCE, AN OFFICER SERVING ON ACTIVE DUTY UNDER SUCH A TEMPORARY APPOINTMENT MIGHT ACCEPT AN APPOINTMENT IN A HIGHER GRADE IN THE OFFICERS' RESERVE CORPS, SUBJECT TO THE PROVISIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED, WITHOUT THEREBY VACATING HIS TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES--- UNDER WHICH HE WOULD CONTINUE TO SERVE ON ACTIVE DUTY UNTIL TERMINATION THEREOF BY OPERATION OF LAW--- SO LONG AS HE WAS NOT CALLED TO ACTIVE DUTY UNDER THE APPOINTMENT IN SUCH HIGHER GRADE. WITH RESPECT TO THE QUESTION OF WHETHER OFFICERS HOLDING CONCURRENT APPOINTMENTS AS OFFICERS OF THE ARMY OF THE UNITED STATES AND MEMBERS OF THE OFFICERS' RESERVE CORPS MIGHT HAVE A LEGAL CLAIM AGAINST THE UNITED STATES FOR THE DIFFERENCE IN PAY BETWEEN THE LOWER AND HIGHER GRADE UNDER SUCH CIRCUMSTANCES, IT WAS NOTED THAT PERSONS TEMPORARILY APPOINTED COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, UNDER THE ACT OF SEPTEMBER 22, 1941, WERE ENTITLED TO THE SAME PAY AND ALLOWANCES, RIGHTS, PRIVILEGES, ETC., AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE, WHO, IN TURN, WHEN ON ACTIVE DUTY AS RESERVE OFFICERS, WERE ENTITLED, UNDER SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, TO THE SAME PAY AND ALLOWANCES AS WERE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR ARMY. IT WAS ALSO NOTED THAT SECTION 37A OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, SPECIFICALLY PROVIDED THAT A "RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY.' FOR SUCH REASONS IT WAS HELD THAT IN ORDER FOR A PERSON TO BE ENTITLED TO THE PAY AND ALLOWANCES, RIGHTS, PRIVILEGES, ETC., AS A MEMBER OF THE OFFICERS' RESERVE CORPS, IT IS NECESSARY NOT ONLY THAT HE HOLD A COMMISSION IN THE OFFICERS' RESERVE CORPS, BUT, ALSO, THAT HE BE CALLED TO AND SERVE ON ACTIVE DUTY UNDER SUCH COMMISSION AS A MEMBER OF THE OFFICERS' RESERVE CORPS.

YOUR APPOINTMENT AS A COLONEL IN THE OFFICERS' RESERVE CORPS APPARENTLY WAS MADE UNDER THE REGULATIONS CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 97, APRIL 15, 1947, PARAGRAPHS 2 AND 5A OF WHICH PERMITTED OFFICERS WHO HELD ONLY A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES, OR TEMPORARY OFFICERS WHO ALSO HELD AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS, AND WHO WERE OTHERWISE ELIGIBLE, TO BE APPOINTED IN THE OFFICERS' RESERVE CORPS IN THE NEXT HIGHER GRADE ABOVE THAT HELD BY THEM IN THE ARMY OF THE UNITED STATES, WITHOUT AFFECTING THEIR TEMPORARY ARMY OF THE UNITED STATES ACTIVE DUTY STATUS. THE TENDER OF THE APPOINTMENT TO YOU INCLUDED THAT PART OF THE SAMPLE LETTER OF APPOINTMENT PUBLISHED AS FIGURE 3 IN CIRCULAR NO. 97, WHICH PROVIDED THAT "THIS DOES NOT AFFECT YOUR CURRENT ACTIVE DUTY STATUS AND YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SO DIRECTED BY COMPETENT ORDERS.'

IN AN OPINION DATED FEBRUARY 2, 1953 (JAGA 1952/9668, 3 DIG OPS, RESERVE FORCES, SEC. 55.1), THE JUDGE ADVOCATE GENERAL OF THE ARMY CONCLUDED:

"A RESERVE OFFICER WHO IS PROMOTED WHILE SERVING ON ACTIVE DUTY SOLELY UNDER A RESERVE APPOINTMENT MUST RECEIVE THE PAY OF THE HIGHER GRADE TO WHICH PROMOTED, UNLESS RETAINED ON ACTIVE DUTY IN THE GRADE HELD PRIOR TO THE PROMOTION IN QUESTION UNDER A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, EVEN THOUGH THE LETTER OF APPOINTMENT TO THE HIGHER GRADE EXPRESSLY STATES THAT HE WILL NOT PERFORM ACTIVE DUTY UNDER THE NEW APPOINTMENT.'

IT APPEARS THAT AT THE TIME YOU RECEIVED YOUR APPOINTMENT AS COLONEL, OFFICERS' RESERVE CORPS, YOU HELD THE GRADE OF MAJOR, FIELD ARTILLERY RESERVE, BUT THAT YOU WERE ACTUALLY SERVING IN THE GRADE OF LIEUTENANT COLONEL UNDER YOUR ARMY OF THE UNITED STATES COMMISSION AND WERE RECEIVING THE ACTIVE DUTY PAY AND ALLOWANCES OF THAT GRADE. ACCORDINGLY, SINCE IT APPEARS THAT YOU WERE RETAINED ON ACTIVE DUTY IN THE GRADE WHICH YOU HELD UNDER A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, AND SINCE IT APPEARS THAT YOU WERE NOT CALLED TO AND DID NOT SERVE ON ACTIVE DUTY UNDER YOUR APPOINTMENT OF JUNE 24, 1947, TO A HIGHER GRADE IN THE OFFICERS' RESERVE CORPS, YOU ARE NOT ENTITLED TO THE PAY AND ALLOWANCES OF SUCH HIGHER GRADE. YOUR CASE IS DISTINGUISHABLE FROM THAT OF THE OFFICER WHOSE CASE WAS CONSIDERED IN OUR DECISION OF JUNE 29, 1954, B-118045, 33 COMP. GEN. 612, IN THAT HE WAS ORDERED TO ACTIVE DUTY FOR TRAINING IN THE ORGANIZED RESERVE CORPS AND WAS PROMOTED IN THE ORGANIZED RESERVE CORPS WHILE SERVING ON SUCH ACTIVE DUTY IN HIS STATUS AS A RESERVE OFFICER.

ON SUCH BASIS, OUR SETTLEMENT OF JANUARY 24, 1957, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.