B-55347, JUNE 5, 1946, 25 COMP. GEN. 827

B-55347, JUNE 5, 1946, 25 COMP. GEN. 827

PAY - HIGHER COMMAND - COMMANDER OF BATTALION SERVING AS PART OF INFANTRY REGIMENT AN ARMY BATTALION WHICH IS PURELY A TACTICAL UNIT, AS DISTINGUISHED FROM AN ADMINISTRATIVE UNIT, SERVING AS PART OF AN INFANTRY REGIMENT DOES NOT CONSTITUTE A "COMMAND" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 7 OF THE ACT OF APRIL 26, 1898, SO AS TO ENTITLE THE COMMANDER THEREOF TO HIGHER COMMAND PAY AND ALLOWANCES UNDER SAID ACT FOR EXERCISING A COMMAND ABOVE THAT RELATIVE TO HIS GRADE IN TIME OF WAR, THE ASSIGNMENT OF COMMAND TO FIELD OFFICERS THEREIN BEING MERELY TO DESIGNATE THEIR PLACES IN THE FIELD.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. L. F. LUCAS, U.S. ARMY, JUNE 5, 1946:

BY ENDORSEMENT FROM THE FISCAL DIRECTOR, ARMY SERVICE FORCES, DATED JANUARY 21, 1946, THERE WAS RECEIVED YOUR COMMUNICATION OF JUNE 1, 1945, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF MAJOR ALBERT G. WARFIELD, AUS, INFANTRY, SERIAL NO. (NG) 10409305, IN THE AMOUNT OF $90.19, REPRESENTING THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THOSE AUTHORIZED FOR LIEUTENANT COLONEL AND THOSE AUTHORIZED FOR MAJOR, FOR THE PERIOD APRIL 18, 1945, TO MAY 31, 1945, DURING WHICH TIME THE OFFICER WAS IN COMMAND OF THE SECOND BATTALION, 115TH INFANTRY.

PARAGRAPHS 1 AND 2 OF SAID COMMUNICATION OF JUNE 1, 1945, ARE AS FOLLOWS:

1. HEREWITH IS CLAIM OF MAJOR ALBERT G. WARFIELD, 115TH INFANTRY, 29TH INFANTRY DIVISION, FOR ADDITIONAL PAY AND ALLOWANCES FOR EXERCISING COMMAND ABOVE THAT PERTAINING TO HIS GRADE.

2. THE UNDERSIGNED IS IN DOUBT AS TO THE SUFFICIENCY OF AFFIDAVITS FOR THE FOLLOWING REASONS:

A. THERE IS CONFLICT BETWEEN T/O AND E, DATED 26 FEBRUARY 1944, AND PAR. 5C, AR 600-20, DATED 1 JUNE 1942, AS TO THE APPROPRIATE GRADE OF THE COMMANDING OFFICER OF AN INFANTRY BATTALION.

B. OFFICER CONCERNED WAS THE SENIOR OFFICER PRESENT FROM 7 MARCH 1945 TO 17 APRIL 1945, ALTHOUGH HE CONTINUED TO COMMAND UNDER AUTHORITY OF ORDERS DATED 21 NOVEMBER 1944.

C. SERVICE AFTER UNCONDITIONAL SURRENDER BY THE GERMANS ON 8 MAY 1945 MAY NOT BE "SERVICE AGAINST AN ENEMY" AS SPECIFIED IN ACT OF 26 APRIL 1898.'

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

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: PROVIDED, THAT A RATE OF PAY EXCEEDING THAT OF A BRIGADIER GENERAL SHALL NOT BE PAID IN ANY CASE BY REASON OF SUCH ASSIGNMENT * * *.

THE INVARIABLE RULE IS THAT AN OFFICER IS ENTITLED TO THE PAY AND ALLOWANCES--- SALARY OR EMOLUMENTS--- FIXED BY LAW FOR THE OFFICE HE ACTUALLY HOLDS, AND HE IS NOT ENTITLED TO MORE OR OTHER EMOLUMENTS BECAUSE OF THE EXERCISE OF ADDITIONAL FUNCTIONS UNLESS THE LAW SPECIFICALLY SO PROVIDES. SECTION 7 OF THE ACT OF APRIL 26, 1898, SUPRA, CONSTITUTES AN EXCEPTION TO THE RULE, BUT THE ADDITIONAL PAY AND ALLOWANCES AUTHORIZED THEREBY ARE EXPRESSLY LIMITED TO CASES WHERE THE OFFICER EXERCISES "A COMMAND ABOVE THAT PERTAINING TO HIS GRADE.'

APPARENTLY, DURING THE PERIOD HERE INVOLVED, THE APPLICABLE WAR DEPARTMENT TABLE OF ORGANIZATION AND EQUIPMENT PROVIDED FOR BOTH A LIEUTENANT COLONEL AND A MAJOR IN THE OFFICER COMPLEMENT OF AN INFANTRY BATTALION, WHEREAS THE RESPECTIVE COMMANDS WHICH PERTAINED TO THE GRADES OF LIEUTENANT COLONEL AND MAJOR WERE SET OUT IN PARAGRAPH 5, ARMY REGULATIONS 600-20, DATED JUNE 1, 1942, AS FOLLOWS:

C. MAJOR.--- BATTALION OR SQUADRON.

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 ABSENCE OF ITS COMMANDING OFFICER.

SIMILAR PROVISIONS REGARDING APPROPRIATE COMMANDS FOR LIEUTENANT COLONELS AND MAJORS HAVE APPEARED IN THE ARMY REGULATIONS FOR MORE THAN 50 YEARS, SEE PARAGRAPH 14, U.S. ARMY REGULATIONS, 1895, AND HAVE BEEN CONTINUED IN ARMY REGULATIONS 600-20, DATED NOVEMBER 1, 1945. APPARENTLY, EITHER LIEUTENANT COLONELS OR MAJORS HAVE BEEN AND ARE ASSIGNED TO COMMAND BATTALIONS ON THE BASIS OF SUCH REGULATIONS, AND IT IS NOT CLEAR WHEREIN THE FACT THAT THE MAXIMUM STRENGTH OFFICER COMPLEMENT OF AN INFANTRY BATTALION, AS AUTHORIZED BY THE TABLE OF ORGANIZATION AND EQUIPMENT, INCLUDES A LIEUTENANT COLONEL, CONFLICTS WITH THE REGULATIONS OR OTHERWISE CONSTITUTES ANY BASIS FOR CONCLUDING, CONTRARY TO THE EXPRESS PROVISION THEREOF, THAT THE COMMAND OF A BATTALION IS A COMMAND ABOVE THAT WHICH PERTAINS TO THE GRADE OF MAJOR. HOWEVER, THAT MAY BE, ON THE PRESENT SHOWING, MAJOR WARFIELD IS NOT ENTITLED TO THE ADDITIONAL PAY AUTHORIZED BY THE SAID SECTION 7 FOR OFFICERS, WHO, IN OTHERWISE PROPER CASES, EXERCISE COMMANDS ABOVE THAT PERTAINING TO THEIR GRADES.

IT APPEARS THAT DURING THE PERIOD COVERED BY THE OFFICER'S CLAIM, THE BATTALION WHICH HE COMMANDED WAS A PART OF AND SERVING WITH THE 115TH INFANTRY REGIMENT, 29TH DIVISION, AND SUCH A BATTALION IS DEFINED IN ARMY REGULATIONS 240-5, DATED MAY 15, 1942, AS FOLLOWS:

2. FORM OF UNIT.--- THE BATTALION AS PART OF AND SERVING WITH THE REGIMENT IS NOT AN ADMINISTRATIVE UNIT AND HAS NO SEPARATE RECORDS; IT IS PURELY A TACTICAL UNIT CONVENIENTLY ORGANIZED FOR INSTRUCTION OR MANEUVER, AND PARTICULARLY FOR COMBAT, AS AN INTEGRAL PART OF THE REGIMENT TO WHICH IT BELONGS.

THE COURTS, THE ADMINISTRATIVE OFFICIALS AND THE ACCOUNTING OFFICERS UNIFORMLY HAVE HELD THAT THE TERM "COMMAND" USED IN THE SAID SECTION 7 REFERS TO THE BODY OF TROOPS WHICH CONSTITUTE A COMMAND, AND THAT SUBSTANTIALLY SIMILAR DEFINITIONS APPEARING IN PARAGRAPH 226, U.S. ARMY REGULATIONS, 1895, AND SUBSEQUENT ARMY REGULATIONS, A BATTALION AS PART OF AND SERVING WITH A REGIMENT IS NOT A COMMAND WITHIN THE MEANING OF THE TERM.

IN THE CASE OF HUMPHREYS V. UNITED STATES, 38 C.1CLS. 689, THE COURT DENIED THE CLAIM OF A MAJOR FOR PAY AND ALLOWANCES OF A LIEUTENANT COLONEL WHILE COMMANDING AN INFANTRY BATTALION. IN THE COURSE OF THE DECISION THE COURT POINTED OUT THAT THE DUTIES OF COMMANDERS OF REGIMENTS AND COMPANIES INCLUDED ADMINISTRATIVE AS WELL AS PURELY MILITARY FUNCTIONS AND STATED:

IT IS ALSO TO BE SAID THAT THE TERM "COMMAND" IN THE STATUTE REFERS NOT TO THE COMMANDER BUT TO THE COMMANDED--- NOT TO RANK OR GRADE OR THE GIVING OF ORDERS, BUT TO ORGANIZED BODIES OF TROOPS WHOSE COMMANDING OFFICERS HAVE A CERTAIN RATE OF PAY REGULATED BY LAW. THE COMMAND OF A BRIGADIER IS HIS BRIGADE; THE COMMAND OF A COLONEL IS HIS REGIMENT; THE COMMAND OF A CAPTAIN IS HIS COMPANY. A LIEUTENANT COLONEL HAS NO COMMAND; THAT IS TO SAY, HE COMMANDS NO INTEGRAL PART OF A REGIMENT. THE COMMANDERS OF COMPANIES DO NOT REPORT TO THE COMMANDERS OF BATTALIONS, BUT DIRECT TO THE REGIMENTAL HEADQUARTERS. THE TERM "BATTALION" IS MERELY TACTICAL, AND THE ASSIGNMENT OF COMMAND TO FIELD OFFICERS IS MERELY TO DESIGNATE THEIR PLACES IN THE FIELD. * * *

IN AN OPINION DATED NOVEMBER 18, 1918, J.A.G.O. 241.14, THE JUDGE ADVOCATE GENERAL OF THE ARMY HELD THAT A MAJOR WHO COMMANDED A BATTALION WAS NOT ENTITLED TO INCREASED PAY AS EXERCISING A HIGHER COMMAND FOR THE REASON THAT THE COMMAND OF A BATTALION WAS NOT SUCH AS WAS CONTEMPLATED BY THE 1898 ACT. THE BASIS FOR THE DECISION WAS THAT A BATTALION WAS NOT AN ADMINISTRATIVE BUT PURELY A TACTICAL UNIT AND THE ASSIGNMENT OF COMMAND TO FIELD OFFICERS THEREIN WAS MERELY TO DESIGNATE THEIR PLACES IN THE FIELD. ALSO, SEE 2 MS. COMP. GEN. 1048, OCTOBER 24, 1921; 3 ID. 407, NOVEMBER 8, 1921; 21 ID. 1279, MAY 28, 1923; 21 ID. 1356, MAY 29, 1923; 23 ID. 525, JULY 17, 1923; 29 ID. 767, JANUARY 25, 1924; AND CF. B-51572, MARCH 4, 1946, 25 COMP. GEN. 615.

HENCE, DURING THE PERIOD COVERED BY MAJOR WARFIELD'S CLAIM, THE OFFICER WAS NOT EXERCISING A COMMAND ABOVE THAT PERTAINING TO HIS GRADE WITHIN THE CONTEMPLATION OF SECTION 7 OF THE ACT OF APRIL 26, 1898, AND THEREFORE, HE IS NOT ENTITLED TO THE INCREASED PAY AND ALLOWANCES CLAIMED.

YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE.