B-150654, MARCH 1, 1963, 42 COMP. GEN. 445

B-150654, MARCH 1, 1963, 42 COMP. GEN. 445

PAY - PROMOTIONS - EFFECTIVE DATE - RESERVISTS - WHILE ON EXTENDED ACTIVE DUTY A FIRST LIEUTENANT OF THE AIR FORCE RESERVE WHO WHILE ON EXTENDED ACTIVE DUTY IS PROMOTED AS A RESERVE OFFICER TO THE GRADE OF CAPTAIN UNDER THE AUTHORITY OF 10 U.S.C. 8360 AND 8366, AND SUBSEQUENT ORDERS PURPORT TO RETROACTIVELY CHANGE HIS ACTIVE DUTY ORDERS TO SHOW HIS GRADE AS OF THE EFFECTIVE DATE OF THOSE ORDERS AS THAT OF CAPTAIN INSTEAD OF FIRST LIEUTENANT IS ONLY ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE PROSPECTIVELY FROM THE DATE OF THE AMENDATORY ORDERS, NOTWITHSTANDING THAT SECTION 8363 (F) PROVIDES THAT A RESERVE OFFICER ON EXTENDED ACTIVE DUTY MAY BE PROMOTED TO A HIGHER RESERVE GRADE BEFORE, ON, OR AFTER THE DATE OF THE ORDER, SECTION 8380 (A) CONTINUING THE PAY AND ALLOWANCES OF SUCH OFFICER AT THE LOWER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE DUTY IN THE HIGHER RESERVE GRADE OR IS TEMPORARILY PROMOTED TO THE HIGHER GRADE; HOWEVER, ALTHOUGH THE AMENDATORY ORDERS PURPORTING TO CHANGE THE OFFICER'S ACTIVE DUTY ORDERS TO REFER TO HIM AS CAPTAIN ARE NOT RETROACTIVELY EFFECTIVE TO CREATE THE RIGHT TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE, THEY ARE PROSPECTIVELY EFFECTIVE.

TO CAPTAIN H. L. DURHAM, DEPARTMENT OF THE AIR FORCE, MARCH 1, 1963:

BY LETTER DATED JANUARY 16, 1963, AFAAF-3C, THE CHIEF, PAY AND TRAVEL DIVISION, DIRECTORATE OF ACCOUNTING AND FINANCE, FORWARDED YOUR LETTER OF NOVEMBER 29, 1962, WCMA, REQUESTING DECISION AS TO THE VALIDITY FOR PAY PURPOSES OF THE RETROACTIVE PROMOTION FROM FIRST LIEUTENANT TO CAPTAIN IN THE CASE OF CAPTAIN EDWARD C. OKERLUND, USAF, AO 3031004. YOUR REQUEST FOR DECISION, WHICH WAS ACCOMPANIED BY CAPTAIN OKERLUND'S LETTER OF NOVEMBER 26, 1962, AND A FILE OF RELATED PAPERS, WAS ASSIGNED AIR FORCE REQUEST NO. DOAF 687 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORDS SHOW THAT CAPTAIN OKERLUND, UNDER ORDERS DATED OCTOBER 5, 1961, WAS ORDERED TO REPORT ON OCTOBER 27, 1961, FOR A 12-MONTH TOUR OF ACTIVE DUTY UNLESS SOONER RELIEVED, IN HIS THEN GRADE OF FIRST LIEUTENANT IN THE AIR FORCE RESERVE. ORDERS OF AUGUST 13, 1962, PROMOTED HIM AS A RESERVE OFFICER OF THE AIR FORCE TO THE GRADE OF CAPTAIN, EFFECTIVE JULY 26, 1961, UNDER AUTHORITY OF SECTIONS 8366 AND 8360, TITLE 10, U.S.C. ORDERS OF AUGUST 29, 1962, PURPORTED TO AMEND THE ORDERS OF OCTOBER 5, 1961, TO SHOW HIS GRADE AS OF SUCH EARLIER DATE AS CAPTAIN INSTEAD OF FIRST LIEUTENANT, AND TO ORDER HIM TO EXTENDED ACTIVE DUTY ON OCTOBER 27, 1961, IN THE GRADE OF CAPTAIN.

YOU SAY THAT, ON THE BASIS OF SUCH AMENDATORY ORDERS OF AUGUST 29, 1962, AN AIR FORCE FINANCE OFFICE PAID HIM THE DIFFERENCE BETWEEN THE PAY OF A FIRST LIEUTENANT AND THE PAY OF A CAPTAIN FOR THE PERIOD FROM OCTOBER 27, 1961, TO OCTOBER 31, 1962. THE OFFICER HIMSELF STATES THAT HE ACCEPTED CAREER RESERVE STATUS IN MARCH 1962, WHICH ELIMINATED HIS DATE OF SEPARATION; THAT HE SERVED AS FIRST LIEUTENANT UNTIL AUGUST 13, 1962; AND THAT NO TEMPORARY PROMOTION ORDERS WERE PUBLISHED IN HIS CASE. CONTENDS, HOWEVER, THAT THE ORDERS OF AUGUST 29, 1962, CONSTITUTED AN ORDER TO SERVE IN THE HIGHER GRADE OF CAPTAIN.

YOU ASK WHETHER SUCH ORDERS OF AUGUST 29, 1962, PURPORTING TO AMEND THE ORDERS OF OCTOBER 5, 1961, TO RECALL HIM AS A CAPTAIN, MAY BE CONSIDERED TO BE A TEMPORARY PROMOTION ORDER WITHIN THE MEANING OF10 U.S.C. 8380 (A). IF THE ANSWER IS AFFIRMATIVE, YOU ASK IF THE PAYMENT FROM OCTOBER 27, 1961, IS VALID. IF THE ANSWER IS NEGATIVE, YOU ASK AT WHAT DATE DOES THE OFFICER BEGIN TO ACCRUE PAY AS A CAPTAIN.

THE STATUTORY PROVISIONS RELATING TO APPOINTMENTS AS RESERVE OFFICERS OF THE AIR FORCE ARE CONTAINED IN CHAPTER 837, TITLE 10, U.S.C. (1958 ED.), AND THEY INCLUDE SECTIONS 8360 AND 8366 MENTIONED ABOVE. SECTION 8363 (F), WHICH IS A PART OF SUCH CHAPTER AND WHICH IS A REENACTMENT OF SECTION 502 (D) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, AS AMENDED, 50 U.S.C. 1332 (D) (1952 ED., SUPP. V), PROVIDES THAT A PROMOTION MADE UNDER THAT CHAPTER MAY BE MADE EFFECTIVE BEFORE, ON, OR AFTER THE DATE ON WHICH IT IS MADE, AND THAT, UNLESS EXPRESSLY PROVIDED OTHERWISE IN THE CHAPTER, THE OFFICER CONCERNED IS ENTITLED TO THE PAY, ALLOWANCES, AND ANY OTHER BENEFITS AUTHORIZED BY LAW FOR THE GRADE TO WHICH HE IS PROMOTED FROM THE EFFECTIVE DATE OF THE PROMOTION.

SECTION 8380 (A), WHICH IS ALSO A PART OF CHAPTER 837 AND WHICH IS DERIVED FROM SECTION 511 (D) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, AS AMENDED, 50 U.S.C. 1341 (D) (1952 ED., SUPP. V.), READS AS FOLLOWS:

A RESERVE COMMISSIONED OFFICER ON ACTIVE DUTY (OTHER THAN FOR TRAINING) WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER THAN THE GRADE IN WHICH HE IS SERVING MAY NOT SERVE ON ACTIVE DUTY IN THE RESERVE GRADE TO WHICH HE IS PROMOTED AND IS NOT ENTITLED TO THE RANK, PAY, OR ALLOWANCES OF THAT HIGHER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE DUTY IN THAT HIGHER GRADE OR IS TEMPORARILY PROMOTED TO THAT HIGHER GRADE.

THUS, UNDER THOSE STATUTORY PROVISIONS, A RESERVE OFFICER ON EXTENDED ACTIVE DUTY MAY BE PROMOTED TO A HIGHER RESERVE GRADE EFFECTIVE BEFORE, ON, OR AFTER THE DATE OF THE ORDER. HOWEVER, HE WILL CONTINUE TO ACCRUE PAY AND ALLOWANCES OF THE LOWER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE DUTY IN THE HIGHER RESERVE GRADE OR IS TEMPORARILY PROMOTED TO THAT HIGHER GRADE. RETROACTIVE AMENDMENT OF ACTIVE DUTY ORDERS TO REFER TO THE OFFICER IN THE HIGHER GRADE DOES NOT CREATE A RIGHT TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE. SEE OUR DECISION OF SEPTEMBER 29, 1960, B -143510, AND THE REGULATIONS CITING THAT DECISION, WHICH ARE CONTAINED IN PARAGRAPH NO. 22001E (1) OF AIR FORCE MANUAL NO. 177-105 AND WHICH WERE PROMULGATED IN CHANGE 9, DATED JULY 20, 1961.

THE STATUTORY AUTHORITY FOR TEMPORARY PROMOTION OF COMMISSIONED OFFICERS OF THE AIR FORCE IS CONTAINED IN SECTIONS 8442 AND 8447B, WHICH ARE INCLUDED IN CHAPTER 839 OF TITLE 10, U.S.C. (1958 ED.). THERE IS NO SHOWING THAT THE OFFICER HERE INVOLVED WAS PROMOTED UNDER THE PROVISIONS CONTAINED IN THOSE SECTIONS AND WE FIND NOTHING IN THE ORDERS WHICH WERE ISSUED IN HIS CASE WHICH COULD BE USED AS A BASIS FOR CONSIDERING SUCH ORDERS AS TEMPORARY PROMOTION ORDERS WITHIN THE MEANING OF 10 U.S.C. 8380 (A).

IT IS OUR VIEW THAT THE ORDERS OF AUGUST 29, 1962, CLEARLY CONTEMPLATED THAT THE OFFICER WOULD SERVE ON ACTIVE DUTY IN THE GRADE OF CAPTAIN. WHILE THOSE ORDERS MAY NOT BE RECOGNIZED AS RETROACTIVELY EFFECTIVE FOR PAY PURPOSES TO OCTOBER 27, 1961, WE PERCEIVE NO REASON WHY THEY SHOULD NOT BE CONSIDERED AS PROSPECTIVELY EFFECTIVE FOR SUCH PURPOSES AS OF AUGUST 29, 1962. ON SUCH BASIS, THE OFFICER WOULD BEGIN TO ACCRUE PAY AS A CAPTAIN ON THAT DATE.