B-162908, DEC. 18, 1967

B-162908, DEC. 18, 1967

TO MR. RALPH G. ANDERSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1967, REFERRED HERE BY THE DEPARTMENT OF THE ARMY, CONCERNING YOUR CLAIM FOR COMBAT INFANTRYMAN BADGE PAY INCIDENT TO YOUR ENLISTED SERVICE IN THE ARMY.

BY ORDERS DATED JANUARY 8, 1959, OFFICE OF THE ADJUTANT GENERAL, U.S. ARMY RECORDS CENTER, ST. LOUIS, MISSOURI, YOU WERE AWARDED THE COMBAT INFANTRYMAN BADGE FOR SATISFACTORY PERFORMANCE OF DUTY IN ACTIVE GROUND COMBAT WHILE ASSIGNED AS PRIVATE, 23RD ARMORED INFANTRY BATTALION, EFFECTIVE SEPTEMBER 15, 1944. BY LETTER DATED JANUARY 29, 1960, THE CLAIMS DIVISION, ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, DENIED YOUR CLAIM FOR ADDITIONAL PAY EFFECTIVE SEPTEMBER 15, 1944, BASED ON THE COMBAT INFANTRYMAN BADGE AWARDED TO YOU BY THE ORDERS OF JANUARY 8, 1959. THAT LETTER IT WAS EXPLAINED THAT THE STATUTORY AUTHORITY FOR THE ADDITIONAL PAY TO ENLISTED MEN AWARDED THE COMBAT INFANTRYMAN BADGE HAD BEEN REPEALED.

BY LETTER DATED JANUARY 15, 1962, YOU PRESENTED A CLAIM TO THIS OFFICE WHICH WAS CONSIDERED BY OUR CLAIMS DIVISION AND IN SETTLEMENT DATED FEBRUARY 13, 1962, YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE AWARDED THE COMBAT INFANTRYMAN BADGE AFTER THE REPEAL OF THE LAW WHICH PROVIDED FOR ADDITIONAL PAY ON ACCOUNT OF SUCH AWARD.

IN YOUR PRESENT LETTER YOU EXPRESS THE OPINION THAT SINCE THE EFFECTIVE DATE OF THE AWARD WAS SEPTEMBER 15, 1944, YOU SHOULD BE ENTITLED TO THE ADDITIONAL PAY AUTHORIZED FOR ENLISTED MEN AWARDED THE COMBAT INFANTRYMAN BADGE UNTIL OCTOBER 1, 1949, THE DATE THE LAW WAS REPEALED BY SECTION 531 (B) OF THE CAREER COMPENSATION ACT OF 1949. THEREFORE, YOU BELIEVE THAT YOUR CLAIM SHOULD BE ALLOWED.

PAYMENT OF THE COMBAT INFANTRYMAN BADGE PAY PROVIDED BY THE ACT OF JUNE 30, 1944, CH. 335, 58 STAT. 648, WAS, BY THE TERMS OF THAT ACT, RESTRICTED TO PERSONS ENTITLED TO WEAR THE COMBAT INFANTRYMAN BADGE UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR. SUCH REGULATIONS WERE CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 408, DATED OCTOBER 17, 1944 (LATER SUPERSEDED BY ARMY REGULATIONS NO. 35-1510, DATED OCTOBER 10, 1946). PARAGRAPHS 4 AND 12D OF THAT CIRCULAR PROVIDED THAT THE EFFECTIVE DATE OF A COMBAT INFANTRYMAN BADGE AWARD WOULD BE THE DATE OF THE ORDER ANNOUNCING THE AWARD UNLESS AN EARLIER SPECIFIC EFFECTIVE DATE IS STATED IN THE ORDER AND THAT THE EFFECTIVE DATE FOR THE ADDITIONAL PAY WOULD BE THE DATE OF THE ORDER, OR AN EARLIER DATE IF SPECIFICALLY STATED THEREIN, BUT THAT IN NO CASE WOULD ADDITIONAL PAY ACCRUE FOR ANY PERIOD BEFORE JANUARY 1, 1944, THE EFFECTIVE DATE OF THE ACT AUTHORIZING SUCH PAY.

THE ACT OF JUNE 30, 1944, SUPRA, WAS TREATED, UNDER THE ABOVE-CITED IMPLEMENTING REGULATIONS, AS PERMITTING THE EXERCISE OF A DISCRETIONARY AUTHORITY FOR THE DEPARTMENT OF THE ARMY TO STATE A RETROACTIVE EFFECTIVE DATE FOR PAY PURPOSES. HOWEVER, THE ACT WAS EXPRESSLY REPEALED EFFECTIVE OCTOBER 1, 1949, BY SECTION 531 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 838, 839, PRIOR TO THE DATE YOU WERE AWARDED THE BADGE. AFTER THE REPEAL OF THE ACT OF JUNE 30, 1944, IT WAS TOO LATE FOR THE DEPARTMENT OF THE ARMY TO GRANT ANY PAY BENEFITS AND THERE WAS NO LONGER ANY AUTHORITY TO FIX AN EFFECTIVE DATE FOR PAY PURPOSES.

UNDER THE ACT OF JUNE 30, 1944, AND THE REGULATIONS OF OCTOBER 10, 1946, SUPRA, COMBAT INFANTRYMAN PAY ACCRUED TO INDIVIDUALS WHO HAD BEEN AWARDED THE COMBAT INFANTRYMAN BADGE. PRIOR TO SUCH AN AWARD, A MAN, ALTHOUGH HE MAY HAVE BEEN ELIGIBLE TO BE AWARDED A BADGE, WOULD HAVE HAD NO RIGHT TO THE PAY INCIDENT THERETO. WHERE A RIGHT GIVEN BY A STATUTE IS NOT BY NATURE A VESTED RIGHT, AND AT THE TIME OF THE REPEAL OF THE STATUTE IS STILL INCHOATE, AS WHERE IT HAS NOT BEEN REDUCED TO JUDGMENT, OR OTHERWISE EXECUTED, SUCH RIGHT DOES NOT SURVIVE AFTER REPEAL OF THE STATUTE, UNLESS EXPRESSLY EXCEPTED. 59 C.J. 1188. SEE SECTIONS 1936 AND 2045, SUTHERLAND'S STATUTORY CONSTRUCTION 3D EDITION; 29 COMP. GEN. 241, 252; 30 ID. 65, 66; AND 37 ID. 803, 807. HENCE, AN AWARD OF A BADGE SUBSEQUENT TO THE REPEAL DATE OF THE ACT OF JUNE 30, 1944, EVEN THOUGH AN EARLIER DATE FOR PAY BE STATED THEREIN, CAN CONFER NO RIGHT TO PAY UNDER THE SAID ACT, SINCE NO RIGHT TO SUCH PAY VESTED PRIOR TO REPEAL.

CONSEQUENTLY, THE AWARD OF THE COMBAT INFANTRYMAN BADGE TO YOU ON JANUARY 8, 1959, CONFERRED NO RIGHT TO PAY UNDER THE REPEALED STATUTE AND LEGALLY IT MAY NOT BE GIVEN EFFECT FOR PAY PURPOSES. ACCORDINGLY, AND SINCE THERE IS NO LEGAL AUTHORITY TO ALLOW YOUR CLAIM, THE SETTLEMENT OF FEBRUARY 12, 1962, IS CORRECT AND MUST BE SUSTAINED.