B-134395, FEB. 3, 1958

B-134395, FEB. 3, 1958

TO MAJOR F. GIAMMALVO, FC:

THE CHIEF OF FINANCE HAS FORWARDED HERE YOUR LETTER OF OCTOBER 15, 1957, SUBMITTING FOR ADVANCE DECISION A SUPPLEMENTAL INACTIVE DUTY TRAINING PAYROLL, WITH SUPPORTING PAPERS, OF 2059TH ARASU, ALLENTOWN USAR SCHOOL, CLAIMING PAY FOR CAPTAINS WILLARD A. BOYER AND ROBERT C. CANFIELD, AS MEMBERS OF THE SCHOOL DETACHMENT FOR THE PERIOD FROM DECEMBER 1, 1956, THROUGH FEBRUARY 28, 1957.

YOU INDICATE THAT YOU THINK THE CLAIMS ARE OBJECTIONABLE BECAUSE RETROACTIVE ASSIGNMENT ORDERS WERE ISSUED WHEREAS ATTENDANCE WAS RECORDED ON DA FORMS 1379 AS IN A NON-PAY STATUS. FIRST INDORSEMENT DATED OCTOBER 23, 1957, FROM HEADQUARTERS SECOND UNITED STATES ARMY, FORT GEORGE G. MEADE, MARYLAND, FORWARDING YOUR LETTER TO THE CHIEF OF FINANCE, SUGGESTS THAT ADVANCE DECISION BE REQUESTED, ALSO, ON THE FOLLOWING QUESTIONS:

"A. ARE THE ATTACHED ORDERS, WHICH ASSIGN THESE PERSONNEL RETROACTIVE, ALSO VALID FOR PAY PURPOSES?

"B. SUBSEQUENT TO PERFORMANCE OF DUTY, CAN THE DA FORM 1379 BE CHANGED TO INDICATE PRESENT IN A PAY STATUS INSTEAD OF PRESENT IN A NON-PAY STATUS, THEREBY ENTITLING THE MEMBER TO PAYMENT?

WHILE THE COMMANDER, HEADQUARTERS SECOND UNITED STATES ARMY, FORT GEORGE G. MEADE, MARYLAND, IS NOT ENTITLED TO AN ADVANCE DECISION ON THE QUESTIONS PRESENTED IN HIS FIRST INDORSEMENT, THE REPLY TO YOUR SUBMISSION WILL INVOLVE ANSWERS TO THOSE QUESTIONS INCIDENTALLY.

AR 140-185, DATED APRIL 15, 1955, PROVIDES:

"3. PURPOSE. A. THE PURPOSE OF UNIT RECORD OF INACTIVE DUTY TRAINING, DA FORM 1379 (FIG. 1), IS TO PROVIDE A RECORD OF AUTHORIZED ATTENDANCE OF A RESERVIST AT A UNIT ASSEMBLY OR DRILL. FROM THIS RECORD, SERVICE IS CREDITED FOR BOTH RETIREMENT POINTS AND FOR RETENTION POINTS IN AN ACTIVE STATUS. IN ADDITION, IT IS USED AS A SOURCE FOR PREPARATION AND SUPPORT OF DATA ENTERED ON DD FORM 10, DD FORM 10A, AND DD FORM 10B (PAY ROLL--- INACTIVE DUTY TRAINING).

"5. RECORDING OF ATTENDANCE OF RESERVISTS ON DA FORM 1379. ATTENDANCE OF RESERVISTS AT AN AUTHORIZED TRAINING ASSEMBLY OR DRILL PERIOD WILL BE RECORDED ON ALL COPIES OF FORM 1379 BY INSERTING THE LETTER "P" FOR "PRESENT" AND THE LETTER "A" FOR "ABSENT.' THE FORM WILL RECORD DRILLS OR ASSEMBLIES ON A MONTHLY BASIS. NAMES OF PERSONNEL NOT SHOWN ON FORM 1379 WILL BE ADDED TO THE FORM 1379 SHOWING DATE OF ASSIGNMENT AND UNIT FROM WHICH TRANSFERRED. ATTACHED PERSONNEL WILL BE LISTED IN THE SAME ORDER AFTER THE LISTING OF ASSIGNED PERSONNEL AND SUBHEADED "ATTACHED FROM OTHER ORGANIZATIONS.' * * *

"8. PURPOSE. A. THE PURPOSE OF THE CERTIFICATE OF INDIVIDUAL PERFORMANCE OF INACTIVE DUTY TRAINING (DA FORM 1380) (FIG. 2), IS TO FURNISH THE CUSTODIAN OF THE RESERVIST'S RECORDS AND THE ARMY AREA MACHINE RECORDS UNIT WITH A REPORT OF---

(1) AUTHORIZED ATTENDANCE IN AN ATTACHED STATUS AT UNIT TRAINING ASSEMBLIES OR DRILLS. IN THIS CASE THE NECESSARY INFORMATION WILL BE EXTRACTED BY THE REPORTING ORGANIZATION FROM THE ,ATTACHED FROM OTHER ORGANIZATION" SECTION OF DA FORM 1379.

(2) AUTHORIZED PERFORMANCE OF INACTIVE DUTY TRAINING OTHER THAN ATTENDANCE AT TRAINING ASSEMBLIES OR DRILLS. SEE SECTION IV, AR 140 305.

"B. WHEN ANY OF THE TRAINING OR DUTIES COVERED IN A (1) OR (2) ABOVE, ARE AUTHORIZED FOR PAY, FORM 1380 WILL BE THE SOURCE DOCUMENT FROM WHICH DATA WILL BE ENTERED ON DD FORM 10, DD FORM 10A, AND DD FORM 10B. * * *"

IN PARAGRAPH 3 OF YOUR LETTER YOU REFER TO THE METHOD OF REPORTING ATTENDANCE ON DA FORMS 1379 WITH THE LETTER "N," DENOTING PRESENT BUT NOT FOR PAY, STATING THAT SUCH METHOD WAS IN ACCORDANCE WITH INSTRUCTIONS ISSUED BY HEADQUARTERS, SECOND UNITED STATES ARMY, FORT GEORGE G. MEADE, MARYLAND. EXTRACT COPY OF THOSE INSTRUCTIONS ACCOMPANIED FIRST INDORSEMENT OF THAT HEADQUARTERS DATED OCTOBER 23, 1957, WHICH PROVIDE AS FOLLOWS:

"5. INFORMATION REQUIRED TO BE REPORTED: THE FOLLOWING INFORMATION WILL BE ENTERED ON THE DA FORM 1379, AS REQUIRED BY REGULATION CITED IN PARAGRAPH 1, ABOVE, AS IMPLEMENTED BY THIS HEADQUARTERS FOR SPECIAL REQUIREMENTS:

"A. THE DRILL ATTENDANCE COLUMN WILL BE COMPLETED USING ONLY THE FOLLOWING SYMBOLS:

"/1) "P"--- FOR ALL PERSONNEL PRESENT IN A PAY STATUS AT AN AUTHORIZED TRAINING ASSEMBLY.

"/2) "N"--- FOR ALL PERSONNEL PRESENT IN A NON-PAY STATUS (FOR EXAMPLE--- AUDITOR STUDENT, INFORMALLY ENROLLED, STANDBY PERSONNEL, ETC.)

"/3) "T"--- FOR ALL PERSONNEL WHO ARE ABSENT BECAUSE THEY ARE ON 6 MONTHS ACTIVE DUTY TRAINING.

"/4) "A"--- FOR ALL PERSONNEL WHO ARE ABSENT FROM AUTHORIZED TRAINING ASSEMBLIES EXCEPT THOSE ON 6 MONTHS ACTIVE DUTY TRAINING.'

AR 140-250, DATED OCTOBER 4, 1956, PROVIDES:

"6. ENTITLEMENT TO PAY. * * *

"B. TRAINING ASSEMBLIES. * * *

"/2) (A) REINFORCEMENTS ASSIGNED AS USAR SCHOOL STUDENTS ARE IN PAY GROUP B AND WILL RECEIVE RESERVE DUTY TRAINING PAY FOR THEIR PARTICIPATION WHEN THEIR ATTENDANCE AT REGULARLY SCHEDULED ASSEMBLIES DURING ANY QUARTER EQUALS OR EXCEEDS 75 PERCENT OF THE REGULARLY SCHEDULED ASSEMBLIES FOR THAT QUARTER. USAR SCHOOL STUDENTS ASSIGNED FOR PAY AFTER THE START OF A QUARTER AND THOSE RELIEVED FROM PAY ASSIGNMENT FOR REASONS BEYOND THEIR CONTROL PRIOR TO THE END OF A QUARTER WILL BE ENTITLED TO PAY FOR ANY ASSEMBLY ATTENDED WHILE IN A PAY STATUS ASSIGNMENT PROVIDING THAT AT LEAST 75 PERCENT OF THE ASSEMBLIES SCHEDULED DURING SUCH PAY STATUS ASSIGNMENT WERE ATTENDED.'

IT APPEARS FROM THE ORIGINAL RECORD OF DUTY PERFORMED, AS REPORTED ON DA FORMS 1379 FOR DECEMBER 1956, JANUARY 1957, AND FEBRUARY 1957, THAT THE OFFICERS CONCERNED ATTENDED ASSEMBLIES OF THE ORGANIZATION IN A NON-PAY STATUS AND THAT THEY WERE "INFORMALLY ENROLLED.' THE ORDERS DATED MARCH 7, 1957, FOR CAPTAIN CANFIELD AND APRIL 4, 1957, FOR CAPTAIN BOYER PURPORT RETROACTIVELY TO RELIEVE THEM FROM ASSIGNMENT WITH 2131ST USAR CONTROL GROUP (REINFORCEMENT) AND RETROACTIVELY TO ASSIGN THEM TO 2059TH ARASU, ALLENTOWN USAR SCHOOL STUDENT DETACHMENT (REINFORCEMENT) PURSUANT TO VERBAL ORDERS OF THE COMMANDING GENERAL--- THE DATE OR DATES OF SUCH VERBAL ORDERS NOT BEING SPECIFIED--- WITH EFFECTIVE DATE OF CHANGE OF STATION ACCOUNTABILITY GIVEN AS DECEMBER 1, 1956.

PARAGRAPH 6 B (2) (A) OF AR 140-250, QUOTED ABOVE, SEEMS TO APPLY TO ASSIGNED STUDENTS AND THE WORDS "THEIR ATTENDANCE" OBVIOUSLY HAVE REFERENCE TO ATTENDANCE AS STUDENTS AT ASSEMBLIES IN AN ASSIGNED CAPACITY- -- NOT AS "INFORMALLY ENROLLED" STUDENTS. THESE OFFICERS WERE NOT ASSIGNED TO THE NAMED ORGANIZATION DURING THE PERIOD FROM DECEMBER 1, 1956, THROUGH FEBRUARY 28, 1957, AND THEIR PRESENCE AT THE TRAINING ACTIVITIES DURING THAT QUARTERLY PERIOD IN AN INFORMAL NON-PAY STATUS WHILE ACTUALLY ASSIGNED TO ANOTHER ORGANIZATION, DOES NOT CONSTITUTE ATTENDANCE WHICH MAY BE INCLUDED IN THE ATTENDANCE REQUIRED IN ORDER TO BE ENTITLED TO PAYMENT OF INACTIVE DUTY TRAINING PAY. ONLY ATTENDANCE PURSUANT TO PROPER ASSIGNMENT ORDERS MAY BE CONSIDERED AS ATTENDANCE WITHIN THE LANGUAGE AND INTENT OF THE REGULATIONS.

WRITTEN ORDERS WHICH PURPORT TO CONFIRM VERBAL ORDERS PRESUMABLY GIVEN AFTER ATTENDANCE AT THE ASSEMBLIES INVOLVED ARE OBVIOUSLY RETROACTIVE ORDERS. WE HAVE HELD GENERALLY FOR MANY YEARS THAT RETROACTIVE ORDERS ARE WITHOUT EFFECT TO EITHER INCREASE OR DECREASE VESTED RIGHTS OF GOVERNMENT PERSONNEL. SEE, FOR EXAMPLE, 23 COMP. GEN. 713; 24 ID. 439; 3 ID. 261; ID. 517; ID. 559; AND 6 ID. 133.

SINCE IT APPEARS THAT CAPTAINS BOYER AND CANFIELD ATTENDED THE ASSEMBLIES IN QUESTION IN A NON-PAY STATUS--- NOT IN AN ASSIGNED STATUS--- THE RETROACTIVE ORDERS ARE WITHOUT EFFECT TO CHANGE THAT STATUS AND THUS INCREASE THEIR RIGHTS. SEE AND COMPARE DECISIONS OF JUNE 17, 1957, B- 131458, AND DECEMBER 27, 1957, B-134560.

ACCORDINGLY, THE QUESTIONS PRESENTED ARE ANSWERED IN THE NEGATIVE AND YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE SUPPLEMENTAL PAYROLL WHICH, TOGETHER WITH SUPPORTING PAPERS, IS BEING RETAINED HERE.