B-78767, SEPTEMBER 23, 1948, 28 COMP. GEN. 196

B-78767, SEPTEMBER 23, 1948, 28 COMP. GEN. 196

PAY - HIGHER COMMAND - LIEUTENANT COLONEL IN COMMAND OF CAVALRY GROUP THE APPLICABLE ARMY REGULATIONS HAVING PROVIDED THAT THE COMMAND OF A REGIMENT OR OF A GROUP PERTAINED TO THE GRADE OF LIEUTENANT COLONEL IN THE ABSENCE OF THE COMMANDING OFFICER (A COLONEL), A LIEUTENANT COLONEL ASSIGNED TO THE COMMAND OF A CAVALRY GROUP TO WHICH WAS ATTACHED A SENIOR OFFICER OF THE SAME GRADE WAS NOT EXERCISING A COMMAND ABOVE THAT "PERTAINING TO HIS GRADE" WITHIN THE CONTEMPLATION OF SECTION 7 OF THE ACT OF APRIL 26, 1898, SO AS TO BE ENTITLED TO THE PAY AND ALLOWANCES OF A COLONEL WHILE EXERCISING SUCH COMMAND, NOTWITHSTANDING THAT HE NORMALLY WOULD NOT HAVE COMMANDED THE GROUP. 1 COMP. GEN. 37, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. J. M. HORNER, DEPARTMENT OF THE ARMY, SEPTEMBER 23, 1948:

BY INDORSEMENT DATED JULY 20, 1948, FROM THE CHIEF OF FINANCE, THERE WAS RECEIVED YOUR COMMUNICATION OF NOVEMBER 4, 1947, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH, STATED IN FAVOR OF LIEUT. COL. CYRUS A. DOLPH III, INFANTRY, SERIAL NO. 10-19170, IN THE AMOUNT OF $64.90, REPRESENTING THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THOSE AUTHORIZED FOR COLONEL AND THOSE AUTHORIZED FOR LIEUTENANT COLONEL, FOR THE PERIOD JULY 27 TO SEPTEMBER 30, 1944, DURING WHICH TIME THE OFFICER WAS IN COMMAND OF THE 102D CAVALRY GROUP ( MECHANIZED).

PARAGRAPH 5, SPECIAL ORDERS NO. 118, HEADQUARTERS, V CORPS, APO 305, JULY 27, 1944, PROVIDES AS FOLLOWS:

DP ANNOUNCEMENT IS MADE OF THE APMT OF LT COL CYRUS A. DOLPH III, O019170, INF., AS COMMANDING OFFICER, 102ND CAV GP ( MECZ), EFF 27 JULY 1944.

AUTH: SEC III, WD CIR. NO. 120, 12 MAY 1943.

BY COMMAND OF MAJOR GENERAL GEROW:

THE CIRCUMSTANCES OF THE ASSIGNMENT OF LIEUTENANT COLONEL DOLPH TO COMMAND OF THE CAVALRY GROUP ARE STATED IN A CERTIFICATE OF MARCH 10, 1948, BY COL. R. B. PATTERSON, AGD, AS FOLLOWS:

I CERTIFY THAT I WAS THE ADJUTANT GENERAL OF V CORPS FROM 10 APRIL 1943 TO AND THROUGH 9 MARCH 1945. AS ADJUTANT GENERAL, IT WAS MY DUTY TO ISSUE AND MAKE OFFICIAL THE GENERAL AND SPECIAL ORDERS OF V CORPS. FURTHER, THAT II WAS THE OFFICIAL CUSTODIAN OF THE RECORDS OF V CORPS WHICH INCLUDED THE ROSTER OF OFFICERS OF THE UNITS ASSIGNED AND ATTACHED TO V CORPS. FURTHER, THAT THE 102ND CAVALRY GROUP ( MECZ) WAS WITH V CORPS THROUGHOUT THE ACTION OF V CORPS IN THE ETO AND UNDER THE DIRECT COMMAND OF THE CORPS COMMANDER, WHO, FOR THE PERIOD IN QUESTION, NAMELY 27 JULY 1944 TO 30 SEPTEMBER 1944, WAS THEN MAJOR GENERAL LEONARD T. GEROW, NOW LT GENERAL LEONARD T. GEROW. THAT BY THE DIRECTION OF MAJOR GENERAL GEROW, I ISSUED PARAGRAPH 4 AND 5 OF SO 118, HQS V CORPS, DATED 27 JULY 1944. THAT AT THE TIME IN QUESTION, NAMELY, 27 JULY 1944 AND DURING THE PERIOD UP TO AND INCLUDING 30 SEPTEMBER 1944 LT. COLONEL PAUL L. BURKE WAS AN OFFICER OF THE 102ND CAV GRP ( MECZ) AND THAT LT COLONEL PAUL L. BURKE WAS SENIOR TO LT COLONEL CYRUS A. DOLPH, III. THAT UNDER THE AUTHORITY OF SECTION III, ND CIRCULAR 120, 12 MAY 1943, THE CORPS COMMANDER, MAJOR GENERAL LEONARD T. GEROW WAS AUTHORIZED TO ASSIGN THE COMMAND OF ONE OF HIS UNITS, NAMELY, THE 102ND CAV GRP ( MECZ) TO A JUNIOR OFFICER OF THE SAME GRADE AS ANOTHER OFFICER, IN TIME OF WAR. THAT FOR THE PERIOD IN QUESTION, 27 JULY 44 TO 20 SEPTEMBER 44, WE WERE AT WAR AGAINST GERMANY AND WERE ACTUALLY IN COMBAT AGAINST GERMAN FORCES. FOR THAT REASON, PARAGRAPH 5 OF 150 118, HQS V CORPS, 27 JUL 44, WAS ISSUED WITH THE INITIALS DP (MEANING BY DIRECTION OF THE PRESIDENT), PURSUANT TO THE AUTHORITY OF SECTION III, WD CIRCULAR 120, 1943. FURTHER, THE TO AND E UNDER WHICH THE 102ND CAV GRP ( MECZ) FUNCTIONED DURING THE PERIOD IN QUESTION, CALLED FOR A FULL COLONEL TO BE THE GROUP COMMANDER. THE APPLICABLE TABLE OF ORGANIZATION AND EQUIPMENT HAS NOT BEEN FURNISHED, BUT THE ABOVE-QUOTED CERTIFICATE WILL BE ACCEPTED AS ESTABLISHING THAT SUCH TABLE PROVIDED FOR A COLONEL IN THE OFFICER COMPLEMENT OF THE 102D CAVALRY GROUP ( MECHANIZED) DURING THE PERIOD OF THE CLAIM.

SECTION 7 OF THE ACT OF APRIL 26, 1898, 30 STAT. 365, 10 U.S.C. 694, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

THAT IN TIME OF WAR EVERY OFFICER SERVING WITH TROOPS OPERATING AGAINST AN ENEMY WHO SHALL EXERCISE, UNDER ASSIGNMENT IN ORDERS ISSUED BY COMPETENT AUTHORITY, A COMMAND ABOVE THAT PERTAINING TO HIS GRADE, SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE GRADE APPROPRIATE TO THE COMMAND SO EXERCISED * * *.

THE RESPECTIVE COMMANDS WHICH PERTAINED TO THE GRADES OF COLONEL AND LIEUTENANT COLONEL DURING THE PERIOD HERE INVOLVED WERE SET OUT IN PARAGRAPH 5, ARMY REGULATIONS 600-20, DATED JUNE 1, 1942, AS FOLLOWS:

D. LIEUTENANT COLONEL.--- BATTALION; ANY PART OF A REGIMENT LARGER THAN A BATTALION, OR A REGIMENT IN THE ABSENCE OF ITS COMMANDING OFFICER; A SQUADRON, ANY PART OF A GROUP LARGER THAN A SQUADRON, OR A GROUP IN THE ABSENCE OF ITS COMMANDING OFFICER.

E. COLONEL.--- REGIMENT OR GROUP. ( ITALICS SUPPLIED.)

OBVIOUSLY, SUCH REGULATIONS, AND NOT THE APPLICABLE TABLE OF ORGANIZATION AND EQUIPMENT OF THE ORGANIZATION WITH WHICH THEY ARE SERVING, ARE CONTROLLING WITH RESPECT TO THE COMMANDS PERTAINING TO THE GRADES OF COLONEL AND LIEUTENANT COLONEL, CF. 25 COMP. GEN. 827, 828, AND SUCH REGULATIONS PROVIDE THAT THE COMMAND OF A REGIMENT OR GROUP PERTAINS TO THE GRADE OF LIEUTENANT COLONEL IN THE ,ABSENCE" OF A COLONEL.

THE WORD "ABSENCE" IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION, AS MEANING, GENERALLY: FAILURE TO BE PRESENT; WANT, LACK, WITHDRAWAL, OR THE ABSENCE OF WITNESSES; AN EMPTY OR UNFILLED PLACE. ALSO, SEE WORDS AND PHRASES, PERMANENT EDITION, VOLUME 1, PAGE 127, ET SEQ. GIVING THE WORD "ABSENCE" ITS GENERALLY ACCEPTED MEANING, THE CONCLUSION IS REQUIRED THAT UNDER THE REGULATIONS A REGIMENT OR GROUP IS A COMMAND WHICH PERTAINS TO THE GRADE OF A LIEUTENANT COLONEL WHEN THE REGIMENT OR GROUP LACKS A COLONEL OR THE COLONEL IS NOT PRESENT, EITHER ACTUALLY OR IN THE SENSE THAT HE IS UNABLE TO PERFORM THE DUTIES INCIDENT TO COMMAND OF THE REGIMENT OR GROUP.

HENCE, WHILE COLONEL DOLPH MAY HAVE BEEN EXERCISING A COMMAND WHICH NORMALLY HE WOULD NOT HAVE EXERCISED, A SENIOR LIEUTENANT COLONEL BEING WITH THE GROUP, THE COMMAND WHICH HE EXERCISED, IN THE ABSENCE OF THE COLONEL, WAS APPROPRIATE TO THE GRADE OF A LIEUTENANT COLONEL DURING THE PERIOD OF HIS CLAIM. SINCE HE WAS SERVING IN THE GRADE OF LIEUTENANT COLONEL DURING SUCH PERIOD THE OFFICER WAS NOT EXERCISING A COMMAND ABOVE THAT "PERTAINING TO HIS GRADE.'

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THE FILES OF THIS OFFICE, IS NOT AUTHORIZED.

THE DECISION APPEARING AT 1 COMP. GEN. 37 HAS NO APPLICATION TO THE PRESENT CASE, SINCE THE CONCLUSION THEREIN WAS PREDICATED UPON THE ARMY REGULATIONS IN EFFECT DURING THE PERIOD CONSIDERED THEREIN, WHICH DID NOT PROVIDE THAT THE COMMAND OF A REGIMENT WAS APPROPRIATE TO THE GRADE OF A LIEUTENANT COLONEL UNDER ANY CIRCUMSTANCES.

INASMUCH AS THE GOVERNING ARMY REGULATIONS APPEAR TO HAVE BEEN OVERLOOKED, HAVING BEEN NEITHER CITED NOR DISCUSSED IN OFFICE DECISION OF OCTOBER 11, 1944, B-41810, SUCH DECISION NO LONGER WILL BE CONSIDERED AS AUTHORITY FOR PAYMENT OF HIGHER COMMAND PAY IN CASES OF THIS NATURE.