B-152395, OCTOBER 21, 1963, 43 COMP. GEN. 400

B-152395, OCTOBER 21, 1963, 43 COMP. GEN. 400

PAY - PROMOTIONS - EFFECTIVE DATE - RESERVISTS - WHILE ON EXTENDED ACTIVE DUTY A SECOND LIEUTENANT IN THE ARMY RESERVE WHO WHILE SERVING ON ACTIVE DUTY IS TEMPORARILY PROMOTED TO THE GRADE OF FIRST LIEUTENANT PURSUANT TO SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947 IS NOT ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE PRIOR TO THE PROMOTION ACTION ON THE BASIS OF AMENDATORY ORDERS PURPORTING TO MAKE THE TEMPORARY PROMOTION RETROACTIVELY EFFECTIVE FROM DATE OF ENTRANCE ON DUTY, SECTION 333 (A) OF THE RESERVE OFFICER PERSONNEL ACT ENTITLING A RESERVE OFFICER WHO IS PROMOTED WHILE ON ACTIVE DUTY TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE ONLY WHEN CONTEMPORANEOUSLY ORDERED TO SERVE ON ACTIVE DUTY IN THE HIGHER GRADE OR TEMPORARILY PROMOTED TO THAT GRADE, AND THE AMENDATORY ORDERS AUTHORIZING THE PROMOTION OF THE OFFICER TO THE HIGHER GRADE FROM THE DATE OF HIS ENTRANCE ON DUTY NOT CHANGING THE FACT THAT THE OFFICER WAS ORDERED TO ACTIVE DUTY IN THE RESERVE GRADE OF SECOND LIEUTENANT AND THAT HE SERVED IN THAT GRADE UNTIL TEMPORARILY PROMOTED TO THE GRADE OF FIRST LIEUTENANT, THE PROMOTION WAS NOT RETROACTIVELY EFFECTIVE.

TO CAPTAIN JEROME C. MEADER, JR., OCTOBER 21, 1963:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26, 1963, REQUESTING A REVIEW OF YOUR CLAIM FOR ADDITIONAL PAY AND ALLOWANCES AS A FIRST LIEUTENANT FOR THE PERIOD SEPTEMBER 6, 1955, TO JANUARY 28, 1956, BASED ON A RETROACTIVE RESERVE PROMOTION, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF FEBRUARY 7, 1961.

BY SPECIAL ORDERS NO. 173, DEPARTMENT OF THE ARMY, WASHINGTON, DATED AUGUST 30, 1955, YOU WERE DIRECTED TO REPORT FOR AN EXTENDED TOUR OF ACTIVE DUTY EFFECTIVE SEPTEMBER 6, 1955, IN THE GRADE ,CURRENTLY HELD AS RESERVE COMMISSIONED OFFICER OF THE ARMY.' YOUR RESERVE GRADE WAS SHOWN ON THE ORDERS AS SECOND LIEUTENANT. BY SPECIAL ORDERS NO. 21, DEPARTMENT OF THE ARMY, WASHINGTON, JANUARY 30, 1956, WHILE SERVING ON ACTIVE DUTY, YOU WERE TEMPORARILY PROMOTED AND COMMISSIONED A FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 907, 10 U.S.C. 506D (1952 ED.). THEREAFTER YOU RECEIVED THE ACTIVE DUTY PAY AND ALLOWANCES OF A FIRST LIEUTENANT BY REASON OF YOUR TEMPORARY GRADE. LETTER ORDERS DATED AUGUST 16, 1960, PURPORTED TO AMEND YOUR ORDERS OF AUGUST 30, 1955, TO SHOW THAT THE RESERVE GRADE THEN HELD BY YOU WAS FIRST LIEUTENANT RATHER THAN SECOND LIEUTENANT.

THE RECORD IN THIS OFFICE INCLUDES A COPY OF A LETTER FROM THE COMMANDER, HEADQUARTERS, 66TH ARTILLERY GROUP (AIR DEFENSE), ELLSWORTH AFB, S.D., AUGUST 3, 1960, ADDRESSED TO THE ADJUTANT GENERAL, IN WHICH IT IS STATED THAT YOU WERE PROMOTED AS A RESERVE OFFICER TO THE GRADE OF FIRST LIEUTENANT, EFFECTIVE JULY 1, 1955, WITH DATE OF RANK MAY 21, 1954, BY LETTER ORDERS OF THE DEPARTMENT OF THE ARMY DATED AUGUST 20, 1956, PURSUANT TO ARMY REGULATIONS 135-155 UNDER AUTHORITY OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 (APPROVED SEPTEMBER 3, 1954, CH. 1257, 68 STAT. 1147, AS AMENDED BY THE ACT OF JUNE 30, 1955, CH. 247, 69 STAT. 218, 50 U.S.C. 1181-1399 (1952 ED., SUPP. V) ). THAT ACT AUTHORIZES THE PROMOTION OF A SECOND LIEUTENANT OF THE ARMY RESERVE TO THE RESERVE GRADE OF FIRST LIEUTENANT UPON COMPLETION OF 3 YEARS OF PROMOTION SERVICE REGARDLESS OF A VACANCY IN THAT GRADE. PRESUMABLY YOU HAD COMPLETED 3 YEARS OF PROMOTION SERVICE AS A SECOND LIEUTENANT ON OR BEFORE JULY 1, 1955. HOWEVER, SINCE YOU HAD NOT BEEN PROMOTED PRIOR TO REPORTING FOR ACTIVE DUTY IN SEPTEMBER 1955, THE GRADE ACTUALLY HELD BY YOU AT THE TIME OF REPORTING FOR ACTIVE DUTY WAS SECOND LIEUTENANT.

SECTION 207 OF THE RESERVE OFFICER PERSONNEL ACT, 50 U.S.C. 1197 (1952 ED., SUPP. V), PROVIDES THAT RESERVE OFFICERS THEREAFTER ORDERED TO ACTIVE DUTY SHALL BE SO ORDERED IN THE GRADES HELD BY THEM AS RESERVE OFFICERS, WITH AN EXCEPTION AUTHORIZING ACTIVE DUTY IN A HIGHER TEMPORARY GRADE. SECTION 303 (B), 50 U.S.C. 1223 (B) (1952 ED., SUPP. V), PROVIDES THAT PROMOTION MAY BE MADE EFFECTIVE BEFORE, ON, OR AFTER THE DATE ACCOMPLISHED, AND THE OFFICER SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM SUCH EFFECTIVE DATE. HOWEVER, SECTION 333 (A) OF THAT ACT, AS AMENDED BY THE ACT OF JUNE 30, 1955, CH. 247, 69 STAT. 222, 50 U.S.C. 1273 (1952 ED. SUPP. V), PROVIDES AS FOLLOWS:

SEC. 333. (A) A RESERVE OFFICER ON ACTIVE DUTY WHO IS PROMOTED TO A GRADE HIGHER THAN THAT IN WHICH HE IS SERVING SHALL CONTINUE TO SERVE ON ACTIVE DUTY IN THE GRADE IN WHICH HE WAS SERVING IMMEDIATELY BEFORE THAT PROMOTION AND SHALL, UNLESS HE EXPRESSLY DECLINES SUCH PROMOTION, BE DEEMED TO HAVE ACCEPTED, EFFECTIVE ON THE DATE OF SUCH PROMOTION, A TEMPORARY APPOINTMENT IN THE GRADE IN WHICH SERVING. IF HE DOES NOT DESIRE TO CONTINUE ON ACTIVE DUTY IN THE GRADE IN WHICH SERVING, HE MAY, EXCEPT AS PROVIDED IN SUBSECTION (B) HEREOF, ELECT TO BE RELIEVED FROM ACTIVE DUTY AND SHALL BE PROMOTED ON THE DAY SUBSEQUENT TO SUCH RELIEF OR ON THE DAY HE WOULD HAVE BEEN PROMOTED HAD HE REMAINED ON ACTIVE DUTY, WHICHEVER IS THE LATER. IF HIS RELIEF FROM ACTIVE DUTY OCCURS SUBSEQUENT TO THE DATE HE WOULD HAVE BEEN PROMOTED HAD HE REMAINED ON ACTIVE DUTY, HE SHALL BE CREDITED WITH THE AMOUNT OF PROMOTION SERVICE THAT HE WOULD HAVE HAD IF HE HAD REMAINED ON ACTIVE DUTY AND BEEN PROMOTED.

IT SEEMS CLEAR THAT CONGRESS DID NOT INTEND THAT A RESERVE OFFICER WHO IS PROMOTED WHILE ON ACTIVE DUTY SHOULD BE PAID THE PAY AND ALLOWANCES OF THE HIGHER GRADE UNLESS HE IS CONTEMPORANEOUSLY ORDERED TO SERVE ON ACTIVE DUTY IN THE HIGHER GRADE OR IS TEMPORARILY PROMOTED TO THAT GRADE. THE AMENDATORY ORDERS IN YOUR CASE DID NOT CHANGE THE FACT THAT YOU WERE ORDERED TO ACTIVE DUTY IN THE RESERVE GRADE OF SECOND LIEUTENANT ACTUALLY HELD BY YOU AND THAT YOU SERVED ON ACTIVE DUTY IN THAT GRADE UNTIL RECEIPT OF YOUR TEMPORARY PROMOTION ON JANUARY 30, 1956, TO THE GRADE OF FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES. ENCLOSED IS A COPY OF OUR DECISION OF SEPTEMBER 29, 1960, B-143510, INVOLVING A SIMILAR SITUATION IN THE CASE OF AN AIR FORCE RESERVE OFFICER.