B-141590, MAR. 4, 1960

B-141590, MAR. 4, 1960

TO CAPTAIN P. C. SCOTT, FC, DEPARTMENT OF THE ARMY:

BY THIRD INDORSEMENT DATED DECEMBER 28, 1959, THE OFFICE OF THE CHIEF OF FINANCE FORWARDED YOUR LETTER OF OCTOBER 1, 1959, PRESENTING FOR DECISION A SUPPLEMENTAL PAYROLL--- INACTIVE DUTY TRAINING--- STATED IN FAVOR OF BRIGADIER GENERAL LOUIS F. W. STUEBE, USAR, FOR ADMINISTRATIVE FUNCTION PAY AS A CORPS ARTILLERY COMMANDER, COVERING THE PERIOD FEBRUARY 1 TO APRIL 30, 1958.

IN EXPRESSING DOUBT AS TO THE VALIDITY OF THE PAYMENT YOU REFER TO THE PROVISIONS OF PARAGRAPH 20-33E, ARMY REGULATIONS 37-104, DATED DECEMBER 2, 1957, AND CHANGES NO. 4, ARMY REGULATIONS 37-104, DATED JULY 8, 1958, AND YOU STATE THAT ADMINISTRATIVE FUNCTION PAY HAS BEEN PAID TO GENERAL STUEBE SINCE JULY 8, 1958. YOU ASK WHETHER OR NOT DIVISION ARTILLERY AND CORPS ARTILLERY CAN BE CONSIDERED AS THE SAME TYPE OF UNIT FOR PURPOSES OF ENTITLEMENT OF COMMANDERS TO ADMINISTRATIVE FUNCTION PAY.

PARAGRAPH 20-33E, ARMY REGULATIONS 37-104, DATED DECEMBER 2, 1957, PROVIDED, IN PERTINENT PART, THAT:

"COMMANDERS ENTITLED TO ADMINISTRATIVE PAY.

COMMANDERS OF THE FOLLOWING UNITS BY TYPE DESIGNATION

ARE ELIGIBLE FOR ADMINISTRATIVE FUNCTION PAY WHEN

OTHERWISE QUALIFIED UNDER THESE REGULATIONS.

TOE UNITS

OFFICER ENTITLED TO

UNIT ADMINISTRATIVE PAY

ALL DIVISIONS*, BRIGADES, COMMANDER.

GROUPS, AND LOGISTICAL COMMANDS.

"*ONE OFFICER PAY DIVISION HEADQUARTERS FOR EACH STATE AS DESIGNATED BY DIVISION COMMANDER WHERE HEADQUARTERS IS DIVIDED BETWEEN MORE THAN ONE STATE. (DIVISION ARTILLERY COMMANDERS ARE NOT ELIGIBLE.)"

THE ABOVE PARAGRAPH 20-33E WAS AMENDED BY CHANGES NO. 4, ARMY REGULATIONS 37-104, DATED JULY 8, 1958, TO PROVIDE ADMINISTRATIVE FUNCTION PAY FOR ARTILLERY COMMANDERS AS WELL AS COMMANDERS. THE PREVIOUS REFERENCE DENYING ADMINISTRATIVE FUNCTION PAY TO DIVISION ARTILLERY COMMANDERS WAS DELETED IN CHANGES NO. 4. THE SAID PARAGRAPH 20-33E WAS FURTHER AMENDED BY CHANGES NO. 18, DATED AUGUST 14, 1959, BY INSERTING THE WORDS "CORPS ARTILLERY," BEFORE THE WORD "BRIGADES.'

IT APPEARS FROM THE INFORMATION BEFORE US THAT CHANGES NO. 4, DATED JULY 8, 1958, WAS ISSUED AS A RESULT OF A REALIGNMENT OF ARMY RESERVE POLICY RESPECTING COMMANDERS. IN THAT CONNECTION, PARAGRAPH 4 OF THE 10TH INDORSEMENT FROM FIELD DIVISION, OFFICE CHIEF OF FINANCE, U.S. ARMY INDIANAPOLIS, INDIANA, TO COMMANDING GENERAL, FIFTH U.S. ARMY, CHICAGO, ILLINOIS, STATES:

"THE CHANGE IN THE REGULATIONS WAS INITIATED BY THE CHIEF, U.S. ARMY RESERVE AND ROTC AFFAIRS TO REALIGN THEIR POLICY OF PROVIDING ADMINISTRATIVE FUNCTION PAY FOR OTHER COMMANDERS IN CONSONANCE WITH THAT PROVIDED FOR COMPARABLE COMMANDERS IN THE NATIONAL GUARD. THE RECOMMENDED CHANGE WAS NOT APPROVED BY THE ASSISTANT SECRETARY OF THE ARMY UNTIL 7 MAY 1958, AND DID NOT HAVE EFFECT PRIOR TO DATE OF PUBLICATION ON 8 JULY 1958. IT IS THE CONSENSUS OF OPINION OF ALL OF THE STAFF AGENCIES CONTACTED ON THIS CASE THAT GENERAL STUEBE IS NOT ENTITLED TO ADMINISTRATIVE FUNCTION PAY PRIOR TO 8 JULY 1958, THE EFFECTIVE DATE OF THE CHANGE IN REGULATIONS.'

ALSO, IN CONNECTION WITH GENERAL STUEBE'S CASE, IT IS STATED IN PARAGRAPHS 2 AND 3 OF FOURTH INDORSEMENT FROM THE OFFICE OF THE CHIEF OF FINANCE TO THE COMMANDING GENERAL, FIFTH U.S. ARMY, THAT:

"THE BASIS FOR DENIAL IS THE SPECIFIC WORDING OF THE REGULATION IN EFFECT DURING THE PERIOD IN QUESTION (AR 140-250 AND AR 37-104). THE REGULATION CONTAINS THE PROVISION THAT "DIVISION ARTILLERY COMMANDERS ARE NOT ELIGIBLE.' THEREFORE, IN THE ABSENCE OF A DEFINITE AUTHORIZATION TO THE CONTRARY, IT IS CONCLUDED THAT CORPS ARTILLERY COMMANDERS ARE LIKEWISE NOT ENTITLED.

"THIS MATTER HAS BEEN COORDINATED WITH THE CHIEF OF RESERVE AND ROTC AFFAIRS AND THAT OFFICE CONCURS IN THE OPINION.'

THE ABOVE-MENTIONED REGULATIONS WERE ISSUED UNDER AUTHORITY OF SECTION 501 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 826, WHICH AUTHORIZES PAYMENT OF ADMINISTRATIVE FUNCTION PAY IN THE CIRCUMSTANCES THERE PROVIDED "UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY SCRIBE.' NO PROVISION WAS MADE IN THOSE REGULATIONS AUTHORIZING SUCH PAY TO ANY ARTILLERY COMMANDER PRIOR TO JULY 8, 1958. IN SUCH CIRCUMSTANCES AND IN VIEW OF THE ABOVE-MENTIONED POLICY OF THE DEPARTMENT OF THE ARMY PRIOR TO THAT DATE WITH RESPECT TO SUCH COMMANDERS, THERE IS NO AUTHORITY FOR THE PAYMENT OF GENERAL STUEBE'S CLAIM. THE VOUCHER AND SUPPORTING PAPERS WILL BE ..END :