B-159638, AUGUST 9, 1966, 46 COMP. GEN. 121.

B-159638, AUGUST 9, 1966, 46 COMP. GEN. 121.

PAY - PROMOTIONS - EFFECTIVE DATE - RESERVISTS - WHILE ON ACTIVE DUTY FOR TRAINING. A RESERVE OFFICER OF THE UNIFORMED SERVICES RETROACTIVELY PROMOTED FROM THE GRADE OF MAJOR TO THE GRADE OF LIEUTENANT COLONEL DURING A PERIOD OF ACTIVE DUTY FOR TRAINING IS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE EFFECTIVE DATE OF THE RETROACTIVE PROMOTION UNDER THE PROVISIONS OF THE RESERVE PERSONNEL ACT OF 1954, AS AMENDED, AND HE MAY BE PAID THE DIFFERENCES IN PAY AND ALLOWANCES BETWEEN THE TWO GRADES FOR THE PERIOD OF ACTIVE DUTY PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF HIS PROMOTION.

TO LIEUTENANT COLONEL M. T. EBETINO, DEFENSE SUPPLY AGENCY, AUGUST 9, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1966, REFERENCE DGSC -CF-PC, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT OF THE DIFFERENCE IN BASIC PAY AND ALLOWANCES BETWEEN THAT AUTHORIZED FOR THE RANK OF MAJOR WITH OVER 24 YEARS OF SERVICE AND THAT AUTHORIZED FOR THE RANK OF LIEUTENANT COLONEL WITH OVER 24 YEARS OF SERVICE, MAY BE MADE TO LIEUTENANT COLONEL JOHN WENDELL NICEWANDER, USAR, O1583442, FOR THE PERIOD FROM NOVEMBER 28 THROUGH DECEMBER 10, 1965. YOUR LETTER WAS FORWARDED HERE BY THE COMPTROLLER, DEFENSE SUPPLY AGENCY, CAMERON STATION, ALEXANDRIA, VIRGINIA.

BY LETTER ORDER NO. T-10-92, DATED OCTOBER 13, 1965, THE OFFICER WAS ORDERED TO ACTIVE DUTY FOR TRAINING IN THE GRADE OF MAJOR, WHICH HE THEN HELD, FOR A PERIOD OF 12 DAYS, EXCLUSIVE OF TRAVEL TIME, WITH DIRECTION TO REPORT TO DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, NOT LATER THAN 0800 HOURS, NOVEMBER 29, 1965. ON FEBRUARY 10, 1966, HE WAS ADVISED THAT HE WAS PROMOTED TO THE GRADE OF LIEUTENANT COLONEL, USAR, EFFECTIVE ON OCTOBER 21, 1965. HENCE, HE IS CLAIMING INCREASED PAY AND ALLOWANCES FOR THE PERIOD OF HIS ACTIVE DUTY FOR TRAINING BASED ON SUCH PROMOTION.

SECTION 3363/D), 10 U.S. CODE, AS ADDED BY SECTION 1/79) (E) OF THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-861, 72 STAT. 1470, WHICH IS A SUBSTANTIAL REENACTMENT OF SECTION 303/B) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, APPROVED SEPTEMBER 3, 1954, CH. 1257, 68 STAT. 1154, 50 U.S.C. 1223/B) (1952 ED; SUPP. IV), PROVIDES THAT:

(D) A PROMOTION UNDER THIS CHAPTER MAY BE MADE EFFECTIVE BEFORE, ON, OR AFTER THE DATE ON WHICH IT IS MADE. THE OFFICER CONCERNED IS ENTITLED TO PAY, ALLOWANCES, AND ANY OTHER BENEFITS PROVIDED BY LAW FOR THE GRADE TO WHICH HE IS PROMOTED FROM THE EFFECTIVE DATE OF THE PROMOTION.

SECTION 3380/A), 10 U.S. CODE, AS ADDED BY SECTION 1/79) (E) OF THE ACT OF SEPTEMBER 2, 1958, IS A REENACTMENT, WITH SOME CHANGES, OF SECTION 333 OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, AS AMENDED BY SECTION 10 OF THE ACT OF JUNE 30, 1955, CH. 247, 69 STAT. 222, 50 U.S.C. 1273/A) (1952 ED;SUPP. IV), AND PROVIDES AS FOLLOWS:

(A) 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 CONTINUES TO SERVE ON ACTIVE DUTY IN THE GRADE IN WHICH HE WAS SERVING IMMEDIATELY BEFORE THAT PROMOTION. UNLESS HE EXPRESSLY DECLINES THE PROMOTION HE SHALL BE TREATED AS IF HE HAD ACCEPTED, ON THE DATE OF THAT PROMOTION, AN APPOINTMENT IN A TEMPORARY GRADE EQUAL TO THE GRADE IN WHICH HE WAS SERVING BEFORE THAT PROMOTION. IF HE ELECTS NOT TO CONTINUE ON ACTIVE DUTY IN THE GRADE IN WHICH HE IS SERVING, HE SHALL, EXCEPT AS PROVIDED IN SUBSECTION (B), BE RELIEVED FROM ACTIVE DUTY AND BE PROMOTED ON THE DAY AFTER HE IS RELIEVED OR ON THE DATE ON WHICH HE WOULD HAVE BEEN PROMOTED IF HE HAD STAYED ON ACTIVE DUTY, WHICHEVER IS THE LATER. IF HE IS RELIEVED FROM ACTIVE DUTY AFTER THE DATE ON WHICH HE WOULD HAVE BEEN PROMOTED IF HE HAD STAYED ON ACTIVE DUTY, HE SHALL BE CREDITED WITH THE SERVICE HE WOULD HAVE HAD IF HE HAD REMAINED ON ACTIVE DUTY AND HAD BEEN PROMOTED.

WITH REGARD TO THE PARENTHETICAL PHRASE "/OTHER THAN FOR TRAINING)" IN 10 U.S.C. 3380/A), IT IS NOTED THAT THE PHRASE DID NOT APPEAR IN SECTION 333 OF THE 1954 ACT AS AMENDED BY THE 1955 ACT. THE REASON FOR THE INSERTION OF THAT PHRASE IN THE 1958 ACT, WHILE NOT DISCLOSED IN THE LEGISLATIVE HISTORY OF THAT PROVISION OF LAW, APPEARS TO BE CLEAR. SECTION 102/5) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, 68 STAT. 1149, PROVIDED THAT UNLESS OTHERWISE SPECIFICALLY PROVIDED THE TERMS USED IN THAT ACT HAD THE SAME MEANING AS IN THE ARMED FORCES RESERVE ACT OF 1952. SECTION 101/B) OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 481, 50 U.S.C. 901/B) (1952 ED.), DEFINED THE TERM "ACTIVE DUTY" AS MEANING "FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES OTHER THAN ACTIVE DUTY FOR TRAINING;,

SECTION 101/B) OF THE ARMED FORCES RESERVE ACT OF 1952 WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 641, 682, AND THE DEFINITION OF "ACTIVE DUTY" IN THE LATER ACT (10 U.S.C. 101/22/), INCLUDES "FULL-TIME TRAINING DUTY;, WHEN SECTION 333 OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, AS AMENDED, WAS CODIFIED IN 1958 AS 10 U.S.C. 3380/A), THE CODIFIERS OF THE LAW, BEING AWARE OF THE CHANGE IN THE DEFINITION OF THE TERM "ACTIVE DUTY" BY THE ACT OF AUGUST 10, 1956, INCORPORATED THE PARENTHETICAL PHRASE "/OTHER THAN FOR TRAINING)" IN THE LAW IN ORDER TO NEGATIVE ANY IMPLICATION THAT BY REPEALING SECTION 101/B) OF THE 1952 ACT THE CONGRESS INTENDED THEREBY TO BRING RESERVE OFFICERS ON ACTIVE DUTY FOR TRAINING WITHIN THE PURVIEW OF SECTION 333 OF THE 1954 ACT AS AMENDED BY THE 1955 ACT.

ACCORDINGLY, UNDER THE RESERVE OFFICER PERSONNEL ACT OF 1954, AS AMENDED, AND AS CODIFIED IN 10 U.S.C. 3363/D) AND 3380/A), A RESERVE OFFICER WHO IS PROMOTED WHILE SERVING ON ACTIVE DUTY FOR TRAINING, AS DISTINGUISHED FROM ONE SERVING ON ACTIVE DUTY, IS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE EFFECTIVE DATE OF THE PROMOTION. IF THE PROMOTION IS MADE RETROACTIVELY EFFECTIVE HE IS ENTITLED TO THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF THE HIGHER GRADE AND PAY AND ALLOWANCES OF THE GRADE IN WHICH HE SERVED OR IS SERVING ON ACTIVE DUTY FOR TRAINING FROM THE EFFECTIVE DATE OF THE PROMOTION. SINCE COLONEL NICEWANDER'S PROMOTION WAS EFFECTIVE OCTOBER 21, 1965, AND HE SERVED ON ACTIVE DUTY FOR TRAINING SUBSEQUENT TO THE DATE OF SUCH RETROACTIVE PROMOTION, HE IS ENTITLED TO THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES RECEIVED (O-4), AND PAY AND ALLOWANCES OF THE HIGHER GRADE (O-5).

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IN THE PROPER AMOUNT FOUND DUE, IF OTHERWISE CORRECT.