B-167116, AUG. 7, 1969

B-167116, AUG. 7, 1969

MILITARY - ACTIVE DUTY PAY - PROMOTION DATE DECISION TO NAVAL RESERVE MEMBER IN MEDICAL SERVICE CORPS SUSTAINING CLAIMS SETTLEMENT ACTION DENYING ADDITIONAL ACTIVE DUTY PAY FOR PERIODS PRIOR TO APPOINTMENT AS LIEUTENANT ON BASIS THAT OTHERS SIMILARLY SITUATED RECEIVED HIGHER PAY. SINCE TEMPORARY APPOINTMENT ORDERS MERELY CHANGED MEMBER'S RELATIVE POSITION ON THE LINEAL LIST FOR PROMOTION AND DID NOT CHANGE DATE OF APPOINTMENT OR PROMOTION IT MAY NOT BE USED AS A BASIS FOR ADDITIONAL PAY.

TO LIEUTENANT ALLEN J. SCHUH, MSC, USNR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1969, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MAY 13, 1969, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIODS SEPTEMBER 26, 1966, TO DECEMBER 11, 1967, AND MARCH 1, 1968, TO AUGUST 7, 1968, INCIDENT TO AN ADJUSTMENT BY THE DEPARTMENT OF THE NAVY IN YOUR DATE OF RANK AS A LIEUTENANT (JUNIOR GRADE) AND DATE OF RANK AS A LIEUTENANT.

YOU CONTEND THAT YOU ARE ENTITLED TO THE SAME PAY AND ALLOWANCES AS MEMBERS IN YOUR CATEGORY WITH SIMILAR QUALIFICATIONS WHO JOINED THE NAVY AFTER YOU BUT UNLIKE YOU RECEIVED HIGHER ACTIVE DUTY PAY AND ALLOWANCES DURING THE PERIOD FEBRUARY 3, 1967, TO AUGUST 7, 1968.

AN EXAMINATION OF YOUR PAY RECORD COVERING THE PERIOD JULY 8, 1966, TO JUNE 30, 1968, AND OTHER INFORMATION BEFORE US SHOWS THAT ON SEPTEMBER 18, 1966, YOU ENTERED ON EXTENDED ACTIVE DUTY AS AN ENSIGN, MEDICAL SERVICE CORPS, U.S. NAVAL RESERVE, AND THAT YOU WERE PAID PAY AND ALLOWANCES AS AN ENSIGN FROM THAT DATE THROUGH DECEMBER 10, 1967. ON DECEMBER 11, 1967, YOU WERE APPOINTED LIEUTENANT (JUNIOR GRADE) AND PAID PAY AND ALLOWANCES OF THAT GRADE FROM DECEMBER 11, 1967, THROUGH JUNE 30, 1968. YOU SAY THAT YOU WERE PAID PAY AND ALLOWANCES AS A LIEUTENANT (JUNIOR GRADE) THROUGH AUGUST 6, 1968, AND THAT COMMENCING AUGUST 7, 1968, YOU WERE PAID PAY AND ALLOWANCES AS A LIEUTENANT:

AS STATED IN BUPERS NOTICE 1120 DATED MARCH 2, 1967, SUBJECT "ORIGINAL APPOINTMENTS IN THE MEDICAL SERVICE CORPS, U.S. NAVAL SERVICE," THE NAVY, UNLIKE THE ARMY, DID NOT TAKE INTO CONSIDERATION PROFESSIONAL EXPERIENCE AND EDUCATION IN THE ASSIGNMENT OF RANK FOR INITIAL APPOINTMENT IN THE MEDICAL SERVICE CORPS SPECIALTIES. IT WAS ANNOUNCED IN THAT NOTICE, HOWEVER, THAT "ON 3 FEBRUARY 1967 THE SECRETARY OF THE NAVY APPROVED A REGULATION THAT WILL PLACE THE NAVY MEDICAL SERVICE CORPS PROGRAM IN THE SAME POSITION WITH THAT OF THE OTHER SERVICES WITH REGARD TO RECOGNIZING PROFESSIONAL EXPERIENCE AND EDUCATION IN MAKING GRADE DETERMINATION FOR APPOINTMENT.' UNDER THIS DIRECTIVE, CONSTRUCTIVE SERVICE CREDIT, AS THERE INDICATED, WAS GRANTED TO MEDICAL SERVICE CORPS OFFICERS APPOINTED ON OR AFTER FEBRUARY 3, 1967.

THE RECORD FURTHER INDICATES THAT IN LINE WITH THE ABOVE CHANGE IN NAVY POLICY, YOU MADE APPLICATION TO THE BOARD FOR CORRECTION OF NAVAL RECORDS TO HAVE YOUR RECORDS CORRECTED TO SHOW THAT YOU WERE ORIGINALLY APPOINTED TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) AND THAT YOU BE GRANTED SERVICE CREDIT FOR YOUR PROFESSIONAL EXPERIENCE AND EDUCATION. SINCE IT IS INDICATED THAT APPROXIMATELY 300 OTHER MEDICAL SERVICE CORPS OFFICERS WERE IN A SITUATION SIMILAR TO YOURS, THE CORRECTION BOARD REFERRED THE MATTER TO THE BUREAU OF NAVAL PERSONNEL.

AS THE RECORD INDICATES, YOUR DATE OF RANK AS AN ENSIGN WAS ADJUSTED TO FEBRUARY 2, 1965. ON AUGUST 7, 1968, THE SECRETARY OF THE NAVY APPOINTED YOU A TEMPORARY LIEUTENANT, MEDICAL SERVICE CORPS, U.S. NAVAL RESERVE, EFFECTIVE AUGUST 7, 1968, AND ADJUSTED YOUR DATE OF RANK AS A LIEUTENANT (JUNIOR GRADE) TO AUGUST 2, 1966. YOUR TEMPORARY APPOINTMENT TO THE GRADE OF LIEUTENANT READS AS FOLLOWS: "SUBJ: TEMPORARY APPOINTMENT "REF: (A) TITLE 10, U.S.C. SECTION 5505 "1. PURSUANT TO THE PROVISIONS OF REFERENCE (A) THE PRESIDENT OF THE UNITED STATES TEMPORARILY APPOINTS YOU A LIEUTENANT IN THE MEDICAL SERVICE CORPS OF THE RESERVE OF THE U.S. NAVY TO RANK FROM 1 MARCH 1968 EFFECTIVE 7 AUGUST 1968.'2. THIS APPOINTMENT IS ISSUED WITH THE VIEW TOWARD ADJUSTING YOUR RANK AND POSITION ON THE LINEAL LIST OF THE NAVY TO EQUALIZE YOUR OPPORTUNITY FOR PROMOTION WITH OFFICERS OF THE REGULAR NAVY. PAY AND ALLOWANCES TO WHICH YOU ARE ENTITLED BY THIS APPOINTMENT BEGIN ON THE EFFECTIVE DATE.'3. YOUR DATE OF RANK AS LIEUTENANT (JUNIOR GRADE) IS ADJUSTED TO 2 AUGUST 1966. NO ADDITIONAL MONETARY BENEFITS ACCRUE FROM THIS DATE OF RANK ADJUSTMENT IN THE GRADE OF LIEUTENANT (JUNIOR GRADE).'

THE AUTHORITY, 10 U.S.C. 5505, UNDER WHICH THE SECRETARY'S ACTION WAS TAKEN, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE SECRETARY OF THE NAVY MAY CHANGE THE POSITION ON THE LINEAL LIST OF ANY OFFICER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE TO EQUALIZE HIS OPPORTUNITIES FOR PROMOTION WITH OFFICERS OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS.

"/B) ANY OFFICER WHOSE LINEAL POSITION IS CHANGED UNDER THIS SECTION MAY BE APPOINTED IN THE SAME OR THE NEXT HIGHER GRADE BUT NOT ABOVE THAT OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS, AND HIS DATE OF RANK MAY BE CHANGED TO CONFORM WITH HIS NEW LINEAL POSITION.' ENTITLEMENT TO PAY AND ALLOWANCES UNDER AN APPOINTMENT MADE PURSUANT TO 10 U.S.C. 5505, IS GOVERNED BY THE PROVISIONS OF SECTION 905 (F) OF TITLE 37, U.S. CODE, WHICH PROVIDES THAT "AN OFFICER APPOINTED IN HIGHER GRADE UNDER SECTION 5505 OF TITLE 10 IS ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM THE DATE OF HIS APPOINTMENT IN THAT GRADE.'

SINCE YOUR APPOINTMENT TO THE RANK OF LIEUTENANT WAS EFFECTIVE AUGUST 7, 1968, THE LAW PRECLUDES PAYMENT OF PAY AND ALLOWANCES IN THAT GRADE PRIOR TO AUGUST 7, 1968. SEE, ALSO, RULE 4, TABLE 1-2-2, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL JANUARY 1967.

WITH RESPECT TO YOUR CLAIM FOR THE DIFFERENCE BETWEEN PAY AND ALLOWANCES OF A LIEUTENANT (JUNIOR GRADE) AND THAT OF AN ENSIGN FROM SEPTEMBER 26, 1966, TO DECEMBER 10, 1967, THE SECRETARY OF THE NAVY, IN THE ABOVE QUOTED TEMPORARY APPOINTMENT ORDERS, EXPRESSLY STATED THAT "NO ADDITIONAL MONETARY BENEFITS ACCRUE FROM THIS DATE (2 AUGUST 1966) OF RANK ADJUSTMENT IN THE GRADE OF LIEUTENANT (JUNIOR GRADE).' THE SECRETARY'S ACTION DID NOT INCLUDE A CHANGE IN THE DATE OF YOUR ORIGINAL APPOINTMENT OR PROMOTION TO THE GRADE OF LIEUTENANT (JUNIOR GRADE) BUT CHANGED ONLY YOUR RELATIVE POSITION ON THE LINEAL LIST FOR PROMOTION OPPORTUNITIES WITHIN THE MEANING OF 10 U.S.C. 5505. IT WAS NOT HIS INTENTION TO CONFER A RETROACTIVE RIGHT TO ADDITIONAL PAY AND ALLOWANCES BASED ON THE RANK ADJUSTMENT IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) AND WE FIND NOTHING IN THE LAW WHICH AUTHORIZES SUCH PAYMENT.

SINCE IT APPEARS THAT YOU WERE PAID PAY AND ALLOWANCES AS A LIEUTENANT (JUNIOR GRADE) FROM THE DATE OF YOUR ORIGINAL APPOINTMENT IN THAT GRADE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR PAY AND ALLOWANCES IN THAT GRADE RETROACTIVELY TO THE ADJUSTED DATE OF SUCH RANK. SEE BERRY V UNITED STATES, 130 CT. CL. 33 (1954), AND CAMPBELL V UNITED STATES, 137 CT. CL. 742 (1957). ALSO, COMPARE THE SITUATION INVOLVED IN THE ENCLOSED COPY OF OUR DECISION OF JULY 13, 1962, B-148987, TO THE SECRETARY OF THE AIR FORCE.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF MAY 13, 1969, IS SUSTAINED.