B-145186, MAY 9, 1961

B-145186, MAY 9, 1961

TO WALLACE ANGER, A2C, AF 1442 4536:

REFERENCE IS MADE TO YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF AN AIRMAN FIRST CLASS AND AIRMAN BASIC FOR THE PERIOD APRIL 20, 1959, TO DECEMBER 16, 1960. YOUR CLAIM WAS FORWARDED HERE BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DEPARTMENT OF THE AIR FORCE, FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, SINCE THE CLAIM WAS NOT CONSIDERED PAYABLE UNDER ANY ACT OR APPROPRIATION AVAILABLE TO THE DEPARTMENT OF THE AIR FORCE.

IT APPEARS THAT ON APRIL 20, 1959, YOU WERE TRIED BY SUMMARY COURT MARTIAL, FOUND GUILTY, AND SENTENCED TO BE REDUCED FROM AIRMAN FIRST CLASS TO THE GRADE OF AIRMAN SECOND CLASS, TO BE RESTRICTED TO THE LIMITS OF OXNARD AIR FORCE BASE, CALIFORNIA, FOR 30 DAYS, AND TO PERFORM HARD LABOR WITHOUT CONFINEMENT FOR TWO WEEKS. IN ACCORDANCE WITH EXECUTIVE ORDER 10652, JANUARY 10, 1956, YOUR RATE OF PAY WAS REDUCED TO THAT OF AN AIRMAN BASIC, EFFECTIVE APRIL 20, 1959. SEE OUR DECISION OF AUGUST 19, 1959, B- 139988. IT IS STATED THAT EFFECTIVE DECEMBER 16, 1960, YOU WERE PROMOTED TO AIRMAN SECOND CLASS FOR PAY PURPOSES. IT IS THE BELIEF OF YOUR ACCOUNTING OFFICER AND BASE COMMANDER THAT YOUR CLAIM SHOULD BE CONSIDERED AS A "MERITORIOUS" CLAIM UNDER 31 U.S.C. 336, ON THE BASIS THAT IT CONTAINS SOME ELEMENTS OF LEGAL LIABILITY, THE FOREMOST OF WHICH IS THE FACT THAT THE AIR FORCE NEVER IN FACT REDUCED YOU TO AIRMAN BASIC EXCEPT IN PAY AND THAT YOU DID IN FACT SATISFACTORILY FUNCTION IN THE GRADE OF AIRMAN SECOND CLASS WITHOUT THE CORRESPONDING COMPENSATION.

AT THE TIME OF YOUR COURT-MARTIAL, PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951 (EXECUTIVE ORDER NO. 10652, JANUARY 10, 1956), PROVIDED FOR AUTOMATIC REDUCTION TO THE LOWEST PAY GRADE WHEN THE SENTENCE OF THE COURT-MARTIAL INCLUDED EITHER (1) DISHONORABLE OR BAD CONDUCT DISCHARGE; (2) CONFINEMENT; OR (3) HARD LABOR WITHOUT CONFINEMENT.

BY DECISION OF AUGUST 19, 1959, B-139988, COPY ENCLOSED, WE ADVISED THE SECRETARY OF DEFENSE THAT WE BELIEVED THE AUTOMATIC REDUCTION PROVISION OF SECTION 126E TO BE ADMINISTRATIVE RATHER THAN JUDICIAL IN CHARACTER AND THAT MEMBERS SHOULD BE PAID AT THE REDUCED RATE PENDING DECISION BY THE COURT OF CLAIMS IN THE CASE OF JOHNSON V. UNITED STATES, CT.CL.NO. 234-59, FILED MAY 28, 1959. IN THAT CASE THE PLAINTIFF WAS CLAIMING THE PAY AND ALLOWANCES OF THE NONCOMMISSIONED RANK FROM WHICH HE WAS REDUCED BY VIRTUE OF THE AUTOMATIC REDUCTION PROVISION IN PARAGRAPH 126E. ON JULY 15, 1960, THE COURT OF CLAIMS DISMISSED JOHNSON'S PETITION, HOLDING THAT THERE WAS AMPLE ADMINISTRATIVE AUTHORITY FOR THE REDUCTION AS PROVIDED IN PARAGRAPH 126E OF THE MANUAL. THAT DECISION AGREES WITH THE VIEWS OF THIS OFFICE. THE DEPARTMENT OF THE AIR FORCE COMPLIED WITH THE PROVISIONS OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, AND PROVIDED FOR AUTOMATIC REDUCTION IN GRADE BY REGULATION AFM 173-20, PARAGRAPH 40309, DATED OCTOBER 17, 1958, SUPERSEDED BY REGULATION AFM 177-105, PARAGRAPH 31009, DATED JULY 1, 1960, BOTH OF WHICH PROVIDED AS OLLOWS:

"REDUCTION TO THE LOWEST ENLISTED GRADE IS EFFECTIVE BY OPERATION OF LAW IN ANY CASE IN WHICH THE SENTENCE OF AN AIRMAN, AS APPROVED BY THE CONVENING AUTHORITY, INCLUDES DISHONORABLE OR BAD CONDUCT DISCHARGE, WHETHER OR NOT SUSPENDED, CONFINEMENT OR HARD LABOR WITHOUT CONFINEMENT. THE RATE OF PAY OF THE PERSON SO REDUCED, SHALL BE TO THAT PAY BRACKET COMMENSURATE WITH HIS YEARS OF SERVICES AND THE REDUCTION IN PAY SHALL BE EFFECTIVE ON AND AFTER THE DATE OF THE CONVENING AUTHORITY'S ACTION.'

PURSUANT TO THE EXECUTIVE ORDER AND THE REGULATIONS, YOU WERE AUTOMATICALLY REDUCED TO THE GRADE OF AIRMAN BASIC AND HENCE YOU WERE ENTITLED ONLY TO THE PAY OF THE GRADE. THIS REDUCTION IN GRADE WAS EFFECTIVE UPON APPROVAL OF THE SENTENCE BY THE CONVENING OFFICER IRRESPECTIVE OF THAT PART OF THE COURT-MARTIAL SENTENCE WHICH PURPORTED TO REDUCE YOU TO THE GRADE OF AIRMAN SECOND CLASS. THE REDUCTION IN GRADE TO AIRMAN BASIC WAS NOT MADE MERELY FOR PAY PURPOSES, BUT THE REDUCTION IN PAY RESULTED FROM THE ADMINISTRATIVE REDUCTION IN THE GRADE HELD AND CONTINUED UNTIL PROMOTED TO A HIGHER GRADE.

THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, PROVIDES:

"THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

THE ONLY CLAIMS CONSIDERED PROPER FOR THE SUBMISSION TO THE CONGRESS UNDER THIS STATUTE ARE THOSE THAT CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY ON WHICH THE GENERAL ACCOUNTING OFFICE WOULD TAKE ACTION AND ALLOW BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR THEIR ADJUSTMENT.

THERE APPEAR NO ELEMENTS OF LEGAL OR EQUITABLE LIABILITY ON THE PART OF THE GOVERNMENT IN YOUR CASE THAT WOULD WARRANT OUR REPORTING THE MATTER TO THE CONGRESS. YOUR CLAIM ARISES FROM A PORTION OF YOUR COURT-MARTIAL SENTENCE WHICH WAS INCONSISTENT WITH THE APPROPRIATE EXECUTIVE ORDER AND AIR FORCE REGULATION, AND HENCE, INOPERATIVE TO REDUCE YOU ONLY TO AIRMAN SECOND CLASS.

ACCORDINGLY, YOUR CLAIM IS NOT SUCH AS WOULD WARRANT OUR REPORTING IT TO THE CONGRESS UNDER THE 1928 ACT.