B-140199, AUG. 11, 1959
Highlights
FC: REFERENCE IS MADE TO YOUR LETTER OF JUNE 3. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER STATED IN FAVOR OF SPECIALIST-4 (E-4) ARSINCE L. LOVING WAS SERVING AS A SPECIALIST-4 (E-4) WITH 14 YEARS' SERVICE. THAT ON THAT DATE HE WAS APPOINTED TO THE GRADE OF SPECIALIST-5 (E-5). THIS APPOINTMENT WAS DETERMINED TO BE ERRONEOUS. LOVING WAS REDUCED TO THE GRADE OF SPECIALIST-4 (E-4). THAT LOVING IS ENTITLED TO RETAIN THE PAY OF AN E-5 RECEIVED BY HIM DURING THE PERIOD APRIL 17. - "/1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.'. LOVING WAS SERVING DE FACTO AS AN E-5 UNDER AN ERRONEOUS APPOINTMENT TO THAT GRADE.
B-140199, AUG. 11, 1959
TO CAPTAIN WESLEY E. THOMAS, FC:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1959, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER STATED IN FAVOR OF SPECIALIST-4 (E-4) ARSINCE L. LOVING FOR THE DIFFERENCE BETWEEN PAY OF AN E-4 WITH 14 YEARS' SERVICE UNDER THE ACT OF MAY 20, 1958, 72 STAT. 122 ($190 PER MONTH), AND "SAVED PAY" OF AN E-4 WITH 14 YEARS' SERVICE ($202.80 PER MONTH) FOR THE PERIOD JULY 22, 1958, TO MAY 31, 1959. THE REQUEST HAS BEEN ALLOCATED DO NUMBER 433 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.
IT APPEARS THAT ON APRIL 17, 1958, ARSINCE L. LOVING WAS SERVING AS A SPECIALIST-4 (E-4) WITH 14 YEARS' SERVICE; THAT ON THAT DATE HE WAS APPOINTED TO THE GRADE OF SPECIALIST-5 (E-5); THAT ON JULY 17, 1958, THIS APPOINTMENT WAS DETERMINED TO BE ERRONEOUS, HAVING BEEN MADE IN EXCESS OF AUTHORIZATION; AND THAT ON JULY 22, 1958, LOVING WAS REDUCED TO THE GRADE OF SPECIALIST-4 (E-4). IT FURTHER APPEARS THAT DETERMINATION HAS BEEN MADE UNDER PARAGRAPH 40 OF ARMY REGULATIONS 624 200, MAY 19, 1958, THAT LOVING IS ENTITLED TO RETAIN THE PAY OF AN E-5 RECEIVED BY HIM DURING THE PERIOD APRIL 17, 1958, TO JULY 21, 1958, ON THE BASIS THAT HE SERVED AS A DE FACTO MEMBER OF THAT GRADE DURING THAT PERIOD.
THE ACT OF MAY 20, 1958, 72 STAT. 122, BECAME EFFECTIVE ON JUNE 1, 1958. SECTION 10 OF THAT ACT, 72 STAT. 130, PROVIDES IN PERTINENT PART THAT:
"THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---
"/1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.'
ON MAY 31, 1958, LOVING WAS SERVING DE FACTO AS AN E-5 UNDER AN ERRONEOUS APPOINTMENT TO THAT GRADE. SINCE THE APPOINTMENT WAS ERRONEOUS, HIS E-4 STATUS HAD NOT BEEN TERMINATED. AS AN E-4 HE WAS ENTITLED, HAD HE BEEN SERVING ON ACTIVE DUTY IN THAT GRADE, TO E-4 PAY. THE FACT THAT HE WAS NOT ACTUALLY IN RECEIPT OF SUCH PAY ON MAY 31, 1958, DOES NOT EFFECT HIS RIGHT TO SAVED PAY. COMPARE 38 COMP. GEN. 50; B-139150, JUNE 16, 1959.
ACCORDINGLY, LOVING IS ENTITLED BEGINNING JULY 22, 1958, TO THE SAVED PAY OF AN E-4 WITH 14 YEARS' SERVICE, $202.80 PER MONTH. PAYMENT ON THE VOUCHER WHICH IS RETURNED HEREWITH IS AUTHORIZED, IF OTHERWISE CORRECT.