B-144400, JAN. 18, 1961

B-144400, JAN. 18, 1961

TO COLONEL ALAN J. MCCUTCHEN, USA (RETIRED):

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 19, 1960, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THE GRADES OF FIRST LIEUTENANT AND SECOND LIEUTENANT FOR THE PERIOD JANUARY 1 TO JUNE 30, 1934, UNDER THE PROVISIONS OF PUBLIC LAW 85-255, APPROVED SEPTEMBER 2, 1957, 71 STAT. 575.

THE RECORD SHOWS THAT AFTER GRADUATION FROM THE UNITED STATES MILITARY ACADEMY, YOU ENTERED ON ACTIVE DUTY WITH THE UNITED STATES ARMY ON JUNE 9, 1928, AS A SECOND LIEUTENANT, CORPS OF ENGINEERS, AND THAT UNDER THE PAY LAW THEN IN EFFECT, SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, YOU WERE PAID AT THE RATE OF $1,500 PER ANNUM, THE RATE PRESCRIBED FOR THE FIRST PERIOD, COVERING ALL OFFICERS WHOSE PAY RATES WERE NOT OTHERWISE PROVIDED FOR IN THAT SECTION. PRIOR TO YOUR PROMOTION TO FIRST LIEUTENANT ON JANUARY 1, 1934, YOUR ACCOUNT WAS CREDITED PAY AT THE RATE OF $2,000 PER ANNUM, WHICH WAS THE RATE PRESCRIBED FOR THE SECOND PERIOD, COVERING SECOND LIEUTENANTS WHO HAD COMPLETED 5 YEARS' SERVICE ON JUNE 8, 1933. THUS, SINCE PRIOR TO THE 3 YEARS' SERVICE. IN THIS CONNECTION, THE RECORD SHOWS THAT YOU HAD COMPLETED 5 YEARS. SERVICE ON JUNE 8, 1933. THUS, SINCE PRIOR TO THE DATE YOU WERE PROMOTED TO FIRST LIEUTENANT, YOUR ACCOUNT WAS CREDITED PAY EQUIVALENT TO THAT OF A FIRST LIEUTENANT WITH OVER 3 YEARS' SERVICE, YOUR PAY RATE UPON PROMOTION REMAINED UNCHANGED, THAT IS, $2,000 PER ANNUM PLUS 5 PERCENT LONGEVITY PAY FOR OVER 3 YEARS AND LESS THAN 6 YEARS' SERVICE. AT THAT TIME, YOU WERE INELIGIBLE TO RECEIVE THE PAY OF THE THIRD PERIOD ($2,400 PER ANNUM), INASMUCH AS THAT PAY PERIOD COVERED FIRST LIEUTENANTS WHO HAD COMPLETED 10 YEARS' SERVICE.

PUBLIC LAW 85-255 PROVIDED IN SUBSTANCE THAT UPON APPLICATION OF ANY OFFICER OR FORMER OFFICER OF THE SERVICES MENTIONED IN THE JOINT PAY ACT OF JUNE 10, 1922, WHO, UPON ADVANCEMENT IN RANK, DID NOT RECEIVE AN INCREASE IN THE RATES OF PAY OR ALLOWANCES FOR ANY PART OF THE PERIOD BEGINNING JULY 1, 1932, AND ENDING JUNE 30, 1934 (EXCEPT CERTAIN LONGEVITY INCREASES), BY REASON OF THE APPLICATION OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, THE COMPTROLLER GENERAL IS AUTHORIZED TO DETERMINE THE AGGREGATE AMOUNT OF PAY AND ALLOWANCES, IN ADDITION TO THAT OTHERWISE ACCRUING, WHICH WOULD HAVE ACCRUED TO SUCH OFFICER IF SUCH SECTION HAD NOT BEEN APPLIED IN HIS CASE (EXCEPT AS TO LONGEVITY) AND PAY TO SUCH OFFICER THE AMOUNT SO DETERMINED.

YOUR CLAIM WAS DISALLOWED BY THIS OFFICE ON MARCH 21, 1958, FOR THE REASON THAT PUBLIC LAW 85-255 WAS INAPPLICABLE IN YOUR CASE, SINCE AT THE TIME OF YOUR PROMOTION YOU WERE IN RECEIPT OF PAY AND ALLOWANCES EQUAL TO THOSE OF THE HIGHER RANK. BY LETTER OF SEPTEMBER 4, 1960, YOU REQUESTED RECONSIDERATION OF YOUR CLAIM AND IN RESPONSE YOU WERE INFORMED BY OFFICE LETTER OF OCTOBER 14, 1960, IN EFFECT, THAT THERE WAS NO DIFFERENCE IN PAY DUE YOU SINCE, IRRESPECTIVE OF WHETHER YOU SERVED AS A FIRST LIEUTENANT WITH OVER 3 YEARS' SERVICE OR A SECOND LIEUTENANT WITH OVER 5 YEARS' SERVICE, YOU WOULD BE CREDITED WITH THE PAY OF THE SECOND PERIOD, THAT IS, $2,000 PER ANNUM PLUS LONGEVITY PAY.

IN YOUR LETTER OF OCTOBER 19, 1960, YOU HAVE STATED THAT IT IS YOUR UNDERSTANDING THAT PUBLIC LAW 85-255 WAS INTENDED AS REMEDIAL LEGISLATION TO PROVIDE RELIEF TO THOSE OFFICERS WHO DURING THE PERIOD 1932-1934 HAD BEEN DENIED PROMOTION PAY BECAUSE OF A RULING OF THE COMPTROLLER GENERAL OF THE UNITED STATES AND YOU HAVE REQUESTED FURTHER CONSIDERATION OF YOUR CLAIM ON THE BASIS THAT A MEMBER OF YOUR CLASS AT THE UNITED STATES MILITARY ACADEMY HAS BEEN PAID APPROXIMATELY $300 UNDER THAT STATUTE.

IT IS CLEAR THAT WHEN YOU WERE SERVING AS A SECOND LIEUTENANT WITH OVER 5 YEARS' SERVICE DURING THE LATTER PART OF THE YEAR 1933 YOU WERE CREDITED THE PAY EQUAL TO THAT OF A FIRST LIEUTENANT WITH OVER 3 YEARS' SERVICE AND, CONSEQUENTLY, WHEN YOU WERE PROMOTED TO FIRST LIEUTENANT ON JANUARY 1, 1934, YOU WERE NOT ENTITLED, UNDER THE LAW THEN IN EFFECT, TO AN INCREASE IN PAY AND ALLOWANCES. UNDER SUCH CIRCUMSTANCES IT CANNOT BE SAID THAT YOU WERE DENIED ANY PAY AND ALLOWANCES BY VIRTUE OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932. YOUR PAY, HOWEVER, IMMEDIATELY PRIOR AND SUBSEQUENT TO PROMOTION, AS WELL AS THAT OF ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES GOVERNMENT, IN THE CIVIL AND MILITARY BRANCHES, WAS SUBJECT TO THE REQUIRED PERCENTAGE REDUCTION SET FORTH IN TITLE II OF THE ACT OF MARCH 20, 1933, 48 STAT. 12.

THE PURPOSE OF PUBLIC LAW 85-255 WAS TO AFFORD A REMEDY SOLELY TO THOSE MILITARY OFFICERS WHO WERE DENIED THE INCREASE IN PAY OF THE HIGHER RANK TO WHICH THEY WERE PROMOTED AND WHO CONTINUED TO RECEIVE THE PAY OF THEIR OLD RANK WHICH WAS SUBJECT TO THE REDUCTIONS REQUIRED BY LAW. IT PROVIDED ONLY FOR THE PAYMENT OF THE PAY AND ALLOWANCES WHICH SUCH MILITARY OFFICERS WOULD HAVE RECEIVED UPON PROMOTION WERE IT NOT FOR SECTION 201 OF THE ECONOMY ACT OF 1932. SINCE YOU SUFFERED NO LOSS IN PAY ON THAT ACCOUNT WHEN YOU WERE PROMOTED TO FIRST LIEUTENANT, THERE IS NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM.

WITH RESPECT TO THE PAYMENT YOU SAY HAS BEEN RECEIVED BY YOUR CLASSMATE, YOU ARE ADVISED THAT IF YOU WILL FURNISH THE CLAIMS DIVISION OF THIS OFFICE WITH THE NAME AND SERVICE NUMBER (IF KNOWN) OF SUCH OFFICER, THE ACTION TAKEN IN HIS CASE WILL BE EXAMINED.

FOR THE REASONS STATED ABOVE, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND UPON REVIEW IT IS SUSTAINED.