B-150988, APR. 24, 1963

B-150988, APR. 24, 1963

TO MR. LORENZO G. ALVERO:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1963, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 22, 1949, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN THAT OF A CORPORAL AND THAT RECEIVED BY YOU AS A PRIVATE FIRST CLASS FOR THE PERIOD APRIL 11, 1945, TO JANUARY 16, 1946, INCIDENT TO YOUR SERVICE IN THE ARMY OF THE UNITED STATES.

THE RECORD SHOWS THAT YOU ENLISTED IN THE PHILIPPINE SCOUTS ON FEBRUARY 15, 1941, AND AS EVIDENCED BY ORDERS NO. 165, HEADQUARTERS, UNITED STATES ARMY FORCES WESTERN PACIFIC, OFFICE OF THE COMMANDING GENERAL, DATED MARCH 21, 1946, CONFIRMING PRIOR VERBAL ORDERS OF THE COMMANDING GENERAL, YOU WERE APPOINTED TO THE GRADE OF CORPORAL EFFECTIVE FEBRUARY 26, 1942, WHICH GRADE YOU HELD UNTIL YOUR DISCHARGE ON APRIL 10, 1945. YOU ENLISTED IN THE ARMY OF THE UNITED STATES ON APRIL 11, 1945, IN THE GRADE OF PRIVATE FIRST CLASS AND SERVED IN THAT GRADE UNTIL JANUARY 16, 1946, WHEN YOU WERE SEPARATED FROM THE SERVICE BY REASON OF DEMOBILIZATION.

YOU STATE THAT SINCE THE RECORDS OF YOUR PROMOTION TO CORPORAL WERE LOST DURING THE BATAAN CAMPAIGN YOU WERE BEING CARRIED ON THE MILITARY ROLLS AS A PRIVATE FIRST CLASS AT THE TIME OF YOUR ENLISTMENT OF APRIL 11, 1945, AND HAD THE VERIFYING ORDERS BEEN THEN AVAILABLE YOU WOULD HAVE BEEN ENLISTED AS A CORPORAL (INSTEAD OF PRIVATE FIRST CLASS) IN LINE WITH THE POLICY OF THE ARMY WHICH PERMITTED, UNDER CERTAIN CONDITIONS, PHILIPPINE SCOUTS TO IMMEDIATELY REENLIST IN THE ARMY OF THE UNITED STATES IN THEIR PREVIOUS GRADE.

WHILE IS IS UNFORTUNATE THAT YOUR PROMOTION TO CORPORAL HAD NOT BEEN VERIFIED ON APRIL 11, 1945, SUCH FACTOR CANNOT BE CONSIDERED AS AFFECTING YOUR GRADE OR STATUS IN YOUR ENLISTMENT IN THE ARMY OF THE UNITED STATES BUT MUST BE LIMITED TO THE PREVIOUS ENLISTMENT PERIOD IN WHICH YOU WERE SERVING AS A MEMBER OF THE PHILIPPINE SCOUTS. YOUR ENLISTMENT ON APRIL 11, 1945, WAS A SEPARATE CONTRACT VOLUNTARILY ENTERED INTO BETWEEN YOU AND THE UNITED STATES BY WHICH YOU WERE TO BE PAID THEREAFTER THE PAY AND ALLOWANCES OF THE GRADE IN WHICH YOU ENLISTED UNLESS AND UNTIL SUBSEQUENTLY APPOINTED TO A DIFFERENT GRADE. WHILE THE REGULATIONS THEN IN EFFECT, PARAGRAPH 10C, ARMY REGULATIONS NO. 600-750 DATED SEPTEMBER 30, 1942, PROVIDED THAT A NONCOMMISSIONED OFFICER DISCHARGED WITH CHARACTER "EXCELLENT" AFTER 3 YEARS IN ACTIVE SERVICE AND WHO IS OTHERWISE QUALIFIED WILL BE PERMITTED TO ENLIST IN THE ARMY OF THE UNITED STATES IN THE ORGANIZATION AND GRADE FROM WHICH LAST DISCHARGED PROVIDED HE REENLISTS WITHIN 20 DAYS AFTER THE DATE OF SUCH DISCHARGE, IT WILL BE NOTED THAT SUCH REGULATION WAS PERMISSIVE ONLY AND NOT MANDATORY OR SELF-EXECUTING. SINCE YOU ENLISTED IN THE ARMY OF THE UNITED STATES ON APRIL 11, 1945, AS A PRIVATE FIRST CLASS AND THE RECORD DOES NOT SHOW THAT YOU WERE SUBSEQUENTLY APPOINTED OR PROMOTED TO THE GRADE OF CORPORAL BEFORE YOUR SEPARATION ON JANUARY 16, 1946, YOU ARE NOT ENTITLED TO THE PAY AND ALLOWANCES OF A CORPORAL FOR ANY PART OF THAT PERIOD.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT DATED MARCH 22, 1949, WAS PROPER AND SUCH ACTION IS SUSTAINED.