B-134981, APR. 16, 1958

B-134981, APR. 16, 1958

TO MR. REUBEN W. KAVANNA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 30, 1957, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 20, 1957, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A SERGEANT (PAY GRADE E-5) AND THOSE OF A MASTER SERGEANT (PAY GRADE E-7) INCIDENT TO YOUR ACTIVE SERVICE IN THE ARMY FROM JULY 19, 1954, TO AUGUST 30, 1955.

YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT, BY SPECIAL ORDERS NO. 130, DATED JULY 1, 1954, YOU WERE REDUCED TO THE GRADE OF SERGEANT (E 5), EFFECTIVE THAT DATE, AND ORDERED, WITH YOUR CONSENT, TO REPORT FOR ACTIVE DUTY IN THAT GRADE ON JULY 19, 1954; AND THAT, HAVING REPORTED AS A SERGEANT, YOU WERE PROPERLY PAID THE PAY OF THAT GRADE FROM JULY 19, 1954, TO AUGUST 30, 1955.

YOU REFER TO A LETTER DATED DECEMBER 13, 1956, FROM THE OFFICE OF THE INSPECTOR GENERAL, HEADQUARTERS FIRST ARMY, AND SAY THAT THE LETTER INDICATES THAT YOU HAD A PERMANENT REGULAR ARMY GRADE (WHICH YOU "BROUGHT INTO YOUR SHORT-LIVED RESERVE STATUS") TOWARD EVENTUAL RETIREMENT CREDITS. YOU ALSO SAY THAT THE PART OF SPECIAL ORDERS NO. 130 WHICH REDUCED WITHOUT PREJUDICE YOUR PERMANENT REGULAR ARMY GRADE "HAS SINCE BEEN REGARDED AS AN INADVERTENT ADMINISTRATIVE ERROR" AND THAT THE PART OF THE ORDERS WHICH ORDERED YOU TO EXTENDED ACTIVE DUTY WAS MERELY ROUTINE.

AFTER THE RECEIPT OF YOUR LETTER WE OBTAINED AN ADDITIONAL REPORT CONCERNING YOUR CASE FROM THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY, WHO IS THE OFFICIAL CUSTODIAN OF THE RECORDS OF MILITARY PERSONNEL. IT IS SHOWN IN THAT REPORT THAT YOU WERE ENLISTED IN THE UNITED STATES ARMY RESERVE ON OCTOBER 26, 1953, AND THAT ON JUNE 22, 1954, YOU APPLIED FOR EXTENDED ACTIVE DUTY UNDER THE PROVISIONS OF SUBSECTION 233 (D) OF THE ARMED FORCED RESERVE ACT OF 1952. YOUR APPLICATION WAS DISAPPROVED ON JUNE 23, 1954, BY THE CHIEF, NEW YORK MILITARY DISTRICT, IN ACCORDANCE WITH DEPARTMENT OF THE ARMY MESSAGE NO. 524544, WHICH SUSPENDED CALLS TO ACTIVE DUTY OF RESERVISTS IN GRADES E-6 AND E-7, YET AUTHORIZED THE CALL TO ACTIVE DUTY OF A RESERVIST WHO VOLUNTARILY REQUESTED REDUCTION WITHOUT PREJUDICE TO GRADE E-5 FOR THE PURPOSE OF ENTERING ON EXTENDED ACTIVE DUTY IN THAT GRADE. YOU EXECUTED AN AFFIDAVIT ON JUNE 25, 1954, AGREEING TO A VOLUNTARY REDUCTION WITHOUT PREJUDICE TO GRADE E-5 FOR THE PURPOSE OF VOLUNTEERING FOR ACTIVE MILITARY SERVICE. YOU WERE REDUCED TO GRADE E 5 PER PARAGRAPH 38, SPECIAL ORDERS NO. 130, HEADQUARTERS NEW YORK MILITARY DISTRICT, DATED JULY 1, 1954, WHICH CITED THE AUTHORITY FOR REDUCTION AS PARAGRAPH 13D, SPECIAL MESSAGE NO. 524544, DATED JUNE 17, 1954. PARAGRAPH 39 OF THE SAME ORDERS CALLED YOU TO ACTIVE DUTY EFFECTIVE JYLY 19, 1954, IN THE GRADE OF SERGEANT. YOU HELD THIS GRADE THROUGH AUGUST 30, 1955, THE DATE OF YOUR RELIEF FROM ACTIVE DUTY. YOU WERE PROMOTED TO THE GRADE OF MASTER SERGEANT, E-7, EFFECTIVE AUGUST 31, 1955, BY PARAGRAPH 92, SPECIAL ORDERS NO. 249, HEADQUARTERS NEW YORK MILITARY DISTRICT, DATED DECEMBER 22, 1955, AND WERE HONORABLY DISCHARGED FROM THE RESERVE ON AUGUST 31, 1956, IN THAT GRADE. THE FACTS AS HERE STATED ARE AS SHOWN IN THE REFERRED-TO REPORT FROM THE OFFICE OF THE ADJUTANT GENERAL. IT IS THERE STATED THAT NO RECORD HAS BEEN FOUND TO SHOW THAT YOU EXECUTED AN APPLICATION FOR OR STARTED PROCESSING FOR ACTIVE DUTY PRIOR TO JUNE 17, 1954. SIGNED COPIES OF YOUR APPLICATION DATED JUNE 22, 1954, AND YOUR AFFIDAVIT DATED JUNE 25, 1954, WERE FURNISHED WITH THE REPORT. THERE WAS ALSO FURNISHED A PHOTOCOPY OF DEPARTMENT OF THE ARMY MESSAGE NO. 529435, WHICH PROVIDED THAT THE RESTRICTIONS IN DEPARTMENT OF THE ARMY MESSAGE NO. 524544 DID NOT APPLY TO THOSE WHOSE APPLICATIONS FOR VOLUNTARY ACTIVE DUTY HAD BEEN ACCEPTED BY CHIEFS OF MILITARY DISTRICTS ON OR BEFORE JUNE 17, 1954.

THERE IS NO SHOWING THAT THE ACTION TAKEN IN YOUR CASE WAS NOT IN ACCORDANCE WITH THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS. YOU APPLIED FOR EXTENDED ACTIVE DUTY AND VOLUNTARILY AGREED TO A REDUCTION IN GRADE IN ORDER TO OBTAIN SUCH DUTY. THEREAFTER, YOU WERE REDUCED FROM THE GRADE OF MASTER SERGEANT (E-7) TO THE GRADE OF SERGEANT (E-5) AND WERE CALLED TO ACTIVE DUTY IN THAT GRADE ON JULY 19, 1954. YOU SERVED IN AND RECEIVED THE PAY OF THAT GRADE FROM JULY 19, 1954, TO AUGUST 30, 1955. CONSISTENTLY HAVE 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. THE FACT THAT YOU HAD PRIOR SERVICE AS A MASTER SERGEANT IN THE REGULAR ARMY CANNOT BE CONSIDERED AS REQUIRING THAT YOU MUST SERVE AS A MASTER SERGEANT WHILE ON EXTENDED ACTIVE DUTY UNDER YOUR ENLISTMENT IN THE UNITED STATES ARMY RESERVE. THE LETTER DATED DECEMBER 13, 1956, FROM THE OFFICE OF THE INSPECTOR GENERAL, HEADQUARTERS FIRST ARMY, IN WHICH YOU REFER, MERELY SHOWS THAT YOU WERE SEPARATED FROM "THE ARMY ENLISTED RESERVE" ON OCTOBER 31, 1956, IN THE GRADE OF MASTER SERGEANT(E-7) BECAUSE OF EXPIRATION OF TERM OF SERVICE. IT DOES NOT INDICATE THAT YOU HELD THE PERMANENT REGULAR ARMY GRADE OF MASTER SERGEANT DURING THE PERIOD INVOLVED IN YOUR CLAIM. SINCE IT APPEARS THAT YOUR APPLICATION FOR EXTENDED ACTIVE DUTY WAS NOT ACCEPTED BY THE CHIEF OF YOUR MILITARY DISTRICT ON OR BEFORE JUNE 17, 1954, THE PROVISIONS OF DEPARTMENT OF THE ARMY MESSAGE NO. 529435 ARE NOT FOR APPLICATION IN YOUR CASE.