B-123992, OCTOBER 7, 1955, 35 COMP. GEN. 191

B-123992, OCTOBER 7, 1955, 35 COMP. GEN. 191

APPOINTMENTS - MILITARY, NAVAL, ETC., PERSONNEL - WORLD WAR II - AUTHORITY APPOINTMENTS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT MADE UNDER THE ACT OF SEPTEMBER 22, 1941, EXCEPT THOSE EXPRESSLY CONTINUED IN EFFECT BY THE OFFICER PERSONNEL ACT OF 1947, TERMINATED ON JUNE 30, 1948, THE EFFECTIVE DATE OF THE REPEAL OF THE 1941 ACT. IN COMPUTING THE LENGTH OF SERVICE FOR BASIC PAY PURPOSES, SERVICE AFTER JUNE 30, 1948, UNDER AN APPOINTMENT IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT MADE UNDER THE ACT OF SEPTEMBER 22, 1941, MAY NOT BE COUNTED UNLESS THE OFFICER WAS A MEMBER OF A COMPONENT AND HIS APPOINTMENT WAS CONTINUED IN EFFECT BY THE OFFICER PERSONNEL ACT OF 1947. APPOINTMENTS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, MADE DURING WORLD WAR II, WHICH DID NOT CITE THE STATUTE UNDER WHICH ISSUED MAY NOT BE ASSUMED TO HAVE BEEN MADE UNDER PARAGRAPH 7, SECTION 127A OF THE NATIONAL DEFENSE ACT, 10 U.S.C. 513, THE ARMY POLICY HAVING BEEN TO MAKE SUCH APPOINTMENTS UNDER THE ACT OF SEPTEMBER 22, 1941.

TO THE SECRETARY OF DEFENSE, OCTOBER 7, 1955:

REFERENCE IS MADE TO LETTER OF MAY 16, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION ON THE TWO QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 117, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. IN COMPUTING LENGTH OF SERVICE FOR BASIC PAY PURPOSES, MAY AN APPOINTMENT MADE ON OR AFTER DECEMBER 7, 1941, IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941 (55 STAT. 728) WHICH WAS NOT TERMINATED BY AFFIRMATIVE ADMINISTRATIVE ACTION, BE CONSIDERED AS CONTINUING SUBSEQUENT TO JUNE 30, 1948?

2. IF THE ANSWER TO THE PRECEDING QUESTION IS IN THE NEGATIVE, MAY THE MILITARY DEPARTMENTS, FOR THE SAME PURPOSE, ASSUME THAT AN APPOINTMENT MADE ON OR AFTER DECEMBER 7, 1941, IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WAS EFFECTED UNDER PAR. 7, SEC. 127A, OF THE NATIONAL DEFENSE ACT, 19 U.S.C. 513, UNLESS THE LETTER OF APPOINTMENT AFFIRMATIVELY SHOWS THE APPOINTMENT TO HAVE BEEN MADE UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, SUPRA?

THE FIRST SENTENCE OF PARAGRAPH 7, SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 513, PROVIDES THAT " IN TIME OF WAR OR NATIONAL EMERGENCY * * * ANY OFFICER OF THE REGULAR ARMY MAY BE APPOINTED TO HIGHER TEMPORARY GRADE WITHOUT VACATING HIS PERMANENT APPOINTMENT.' THE SECOND SENTENCE OF THAT PARAGRAPH PROVIDES THAT " IN TIME OF WAR ANY OFFICER OF THE REGULAR ARMY APPOINTED TO HIGHER TEMPORARY GRADE, AND ALL OTHER PERSONS APPOINTED, AS OFFICERS, SHALL BE APPOINTED AND COMMISSIONED IN THE ARMY OF THE UNITED STATES.' FURTHER, SUCH PARAGRAPH CONTAINS A PROVISO AS FOLLOWS: " THAT AN APPOINTMENT, OTHER THAN THAT OF A MEMBER OF THE REGULAR ARMY MADE IN TIME OF WAR, SHALL CONTINUE UNTIL SIX MONTHS AFTER ITS TERMINATION, AND AN OFFICER APPOINTED IN TIME OF WAR SHALL BE ENTITLED TO BE RELIEVED FROM ACTIVE FEDERAL SERVICE WITHIN SIX MONTHS AFTER ITS TERMINATION IF HE MAKES APPLICATION THEREFOR.'

THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, PROVIDED THAT "DURING THE PRESENT EMERGENCY, TEMPORARY APPOINTMENTS AS OFFICERS IN THE ARMY OF THE UNITED STATES MAY BE MADE * * * FROM AMONG QUALIFIED PERSONS WITHOUT APPOINTING SUCH PERSONS AS OFFICERS IN ANY PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES.' THAT ACT FURTHER PROVIDED THAT SUCH APPOINTMENTS SHOULD CONTINUE ,DURING THE PRESENT EMERGENCY AND SIX MONTHS THEREAFTER," UNLESS SOONER VACATED, AND THAT PERSONS APPOINTED UNDER ITS PROVISIONS "MAY BE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES" AND "SHALL RECEIVE THE SAME PAY AND ALLOWANCES AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE.' SUCH ACT WAS REPEALED, EFFECTIVE JULY 1, 1948, BY SECTION 2A OF THE ACT OF JULY 25, 1947, 61 STAT. 451, WITH A PROVISO REQUIRING THAT AS LONG AS THE SECRETARY OF WAR DEEMED SUCH ACTION NECESSARY IN THE INTEREST OF NATIONAL DEFENSE, EACH MAN WHO COMPLETED A COURSE OF MEDICAL INSTRUCTION AT GOVERNMENT EXPENSE UNDER THE ACT OF FEBRUARY 6, 1942, 56 STAT. 50, AS AMENDED, SHOULD NOT BE RELIEVED FROM ACTIVE DUTY UNTIL THE COMPLETION OF TWO YEARS OF ACTIVE SERVICE AS A COMMISSIONED OFFICER EXCLUSIVE OF ANY PERIODS DURING WHICH HE SERVED AS AN INTERN. PRESUMABLY MOST OR ALL OF SUCH MEDICAL PERSONNEL WERE OFFICERS WHOSE APPOINTMENTS WERE MADE UNDER THE ACT OF SEPTEMBER 22, 1941.

AFTER ENACTMENT OF THE ACT OF JULY 25, 1947, AND BEFORE THE EFFECTIVE DATE OF SECTION 2A OF THAT ACT, THE CONGRESS, ON JUNE 12, 1948, PASSED THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, 62 STAT. 356, 363, 10 U.S.C. 316, SECTION 110 OF WHICH CONTINUED THE ACT OF SEPTEMBER 22, 1941, IN EFFECT UNTIL JUNE 12, 1949, INSOFAR AS THAT ACT RELATED TO OFFICERS OF THE WOMEN'S ARMY CORPS APPOINTED UNDER ITS PROVISION OF LAW, DISABLED OFFICERS, WARRANT OFFICERS AND FLIGHT OFFICERS OF THE ARMY AND THE AIR FORCE OF THE UNITED STATES--- MOST OF WHOM WERE SERVING UNDER APPOINTMENTS IN THE ARMY (OR AIR FORCE) OF THE UNITED STATES WITHOUT COMPONENT--- SHOULD BE RETAINED IN THE SERVICE UNTIL THEIR TREATMENT REACHED A POINT WHERE THEY WOULD NOT BE BENEFITED BY FURTHER RETENTION.

IT APPEARS THAT THE DEPARTMENT OF THE ARMY AND THE DEPARTMENT OF THE AIR FORCE DISAGREE AS TO THE TERMINATION DATE OF APPOINTMENTS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, WHICH WERE MADE ON AND AFTER DECEMBER 7, 1941, UNDER THE ACT OF SEPTEMBER 22, 1941. IT IS STATED THAT THE DEPARTMENT OF THE ARMY MAINTAINS THAT BY VIRTUE OF PARAGRAPH 7, SECTION 127A, NATIONAL DEFENSE ACT, AS AMENDED (AND EXECUTIVE ORDER 10397, SEPTEMBER 25, 1952, IMPLEMENTING SECTION 1 (C) OF THE EMERGENCY POWERS CONTINUATION ACT, APPROVED JULY 3, 1952, 66 STAT. 333), 10 U.S.C. 352, APPOINTMENTS MADE ON OR AFTER DECEMBER 7, 1941, UNDER THE ACT OF SEPTEMBER 22, 1941, CONTINUED IN EFFECT UNTIL APRIL 1, 1953, AND THAT THE ACT OF JULY 25, 1947, MERELY TERMINATED THE AUTHORITY TO MAKE NEW APPOINTMENTS UNDER THE 1941 ACT EFFECTIVE JULY 1, 1948. ON THE OTHER HAND, THE DEPARTMENT OF THE AIR FORCE TAKES THE VIEW THAT THE REPEAL OF THE 1941 ACT TERMINATED ON JULY 1, 1948, ALL APPOINTMENTS MADE UNDER THAT ACT WHICH WERE NOT COVERED BY SPECIAL LEGISLATION CONTINUING THEM BEYOND THAT DATE. IT IS UNDERSTOOD THAT SUCH VIEW IS BASED, IN PART AT LEAST, ON THE RULE STATED IN 46 C.J. 934 THAT "SINCE EVERY PUBLIC OFFICE IS THE CREATION OF SOME LAW IT CONTINUES ONLY SO LONG AS THE LAW TO WHICH IT OWES ITS EXISTENCE REMAINS IN FORCE; HENCE, WHEN SUCH LAW IS AUTHORITATIVELY ABROGATED, THE OFFICE CEASES UNLESS PERPETUATED BY VIRTUE OF SOME OTHER LEGAL PROVISION.'

THE ACT OF SEPTEMBER 22, 1941, PERMITTED THE APPOINTMENT OF CIVILIANS AND ENLISTED PERSONNEL AS OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND IF THAT ACT CONSTITUTED THE ONLY AUTHORITY FOR SUCH APPOINTMENTS DURING THE PERIOD FROM THE DATE OF ITS ENACTMENT TO AUGUST 7, 1947 (THE DATE OF ENACTMENT OF SECTION 515 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 907), 10 U.S.C. 506 (E), IT WOULD SEEM REASONABLY CLEAR THAT IT DID CREATE NEW OFFICES WITHIN THE CONTEMPLATION OF THE RULE JUST STATED.

IT SEEMS APPARENT THAT THE LANGUAGE OF THE SECOND SENTENCE OF PARAGRAPH 7, SECTION 127A, NATIONAL DEFENSE ACT, AS AMENDED, WHICH HAS BEEN SUGGESTED AS AUTHORITY FOR WARTIME APPOINTMENTS AS OFFICERS IN THE ARMY OF THE UNITED STATES OF PERSONS OTHER THAN REGULAR ARMY OFFICERS, IS OF DOUBTFUL EFFICACY AS BASIC AUTHORITY FOR APPOINTMENTS WHEN IT IS COMPARED WITH THE FIRST SENTENCE OF SUCH PARAGRAPH WHICH IN PLAIN AND DIRECT TERMS AUTHORIZES APPOINTMENTS OF REGULAR ARMY OFFICERS TO HIGHER TEMPORARY GRADES. MOREOVER, THE LEGISLATIVE HISTORY OF SECTION 20 OF THE ACT OF JUNE 15, 1933, 48 STAT. 161, 10 U.S.C. 513, AMENDING AND RESTATING PARAGRAPH 7 OF SECTION 127A, DOES NOT APPEAR TO CONTAIN ANY SUGGESTION THAT THE PHRASE "OTHER PERSONS," APPEARING IN THAT LANGUAGE, WAS INTENDED TO HAVE REFERENCE TO PERSONS OTHER THAN MEMBERS OF THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD. AND IF SUCH SECOND SENTENCE HAD BEEN INTENDED AS AUTHORIZING WARTIME APPOINTMENTS OF CIVILIANS AND ENLISTED PERSONNEL AS OFFICERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, IT WOULD SEEM THAT IT WOULD HAVE BEEN ACCOMPANIED BY PROVISIONS FOR ORDERING THE APPOINTEES TO ACTIVE DUTY, AND FOR PAYING THEM, COMPARABLE TO THE PROVISIONS EXPRESSLY MADE FOR ACTIVE-DUTY ORDERS AND PAY FOR RESERVE OFFICERS OF THE ARMY AND OFFICERS OF THE NATIONAL GUARD BY SECTIONS 37A AND 38 OF THE NATIONAL DEFENSE ACT, AS AMENDED. SEE 10 U.S.C. (1946 USED.) 361, 369, AND 32 U.S.C. (1946 USED.) 81C. IT SHOULD BE BORNE IN MIND THAT SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. (1946 USED.) 101, AND SECTION 1 OF THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 625, AS WELL, SET FORTH PAY RATES FOR OFFICERS OF THE REGULAR COMPONENTS (COMPARE BERRY V. UNITED STATES, 123 C.1CLS. 530, 543); THAT OFFICERS OF THE RESERVE COMPONENTS (INCLUDING THE NATIONAL GUARD), WHEN ON ACTIVE DUTY, WERE PAID AT SUCH RATES BY REASON OF STATUTORY PROVISIONS ASSIMILATING THEM TO OFFICERS OF THE REGULAR COMPONENTS FOR PAY PURPOSES; AND THAT THE ACT OF SEPTEMBER 22, 1941, CONTAINED EXPRESS PROVISIONS FOR ACTIVE DUTY ORDERS AND PAY AND ALLOWANCES FOR OFFICERS APPOINTED UNDER ITS TERMS.

WE ARE NOT UNMINDFUL OF THE FACT THAT AN ARMY REPRESENTATIVE, IN TESTIFYING BEFORE THE COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, ON THE BILL WHICH BECAME THE ACT OF SEPTEMBER 22, 1941, STATE (PAGE 7 OF HEARINGS OF JULY 15, 1941), THAT "IT (THE BILL) DOESN-T CREATE ANY NEW CATEGORY (OF OFFICERS).' HOWEVER, IN THE LIGHT OF THE LEGISLATIVE PATTERN AS INDICATED BY THE TERMS OF THE ACT OF SEPTEMBER 22, 1941, AND THE CITED PROVISIONS OF THE EARLIER LAWS RELATING TO OFFICER'S APPOINTMENTS, ACTIVE-DUTY ORDERS AND PAY, WE MAY NOT CONCLUDE THAT THE ACT OF SEPTEMBER 22, 1941, DID NOT, IN EFFECT, CREATE NEW OFFICES. IT WOULD SEEM TO FOLLOW THAT THE REPEAL OF THAT ACT TERMINATED THE OFFICES WHICH THE ACT CREATED EXCEPT TO THE EXTENT THAT THEY WERE CONTINUED IN EXISTENCE BY OTHER PROVISIONS OF LAW. IT IS OF PRIME IMPORTANCE, NEVERTHELESS, TO LOOK FOR THE INTENT OF THE EIGHTIETH CONGRESS IN ENACTING SECTION 2A OF THE ACT OF JULY 25, 1947 (THE REPEALING STATUTE), AND RELATED STATUTORY PROVISIONS GOVERNING APPOINTMENTS, ETC., ENACTED AT THE SAME SESSION AND DURING THE FOLLOWING SESSION OF THAT CONGRESS.

THE LEGISLATIVE HISTORIES OF THE ACTS OF JUNE 12, 1948, AND JUNE 19, 1948, CITED ABOVE, AND THE FACT THAT THE CITED PROVISIONS OF THOSE ACTS WERE ENACTED INTO LAW, STRONGLY SUPPORT THE VIEW THAT THE CONGRESS REGARDED APPOINTMENTS IN THE ARMY OF THE UNITED STATES MADE UNDER THE 1941 ACT AS BEING TERMINATED BY THE PROVISIONS OF THE ACT OF JULY 25, 1947, SINCE THERE WOULD HAVE BEEN NO NEED FOR THE 1948 PROVISIONS IF SUCH APPOINTMENTS WERE UNAFFECTED BY THE 1947 ACT. THE MERE EXISTENCE OF THE PROVISO IN THE CITED REPEAL PROVISION OF THE 1947 ACT ALSO LENDS WEIGHT TO THE SAME CONCLUSION.

THE FOLLOWING STATEMENT APPEARS ON PAGE 4 OF REPORT NO. 1616, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, TO ACCOMPANY S. 1641, WHICH BECAME THE ACT OF JUNE 12, 1948:

THIS AMENDMENT IS NECESSARY IN VIEW OF THE FACT THAT UNDER SECTION 2 (A) OF THE ACT OF JULY 25, 1947 ( PUBLIC LAW 239, 80TH CONG.) THE AUTHORITY FOR THE WOMEN'S ARMY CORPS WOULD OTHERWISE TERMINATE ON JULY 1, 1948. THIS AMENDMENT WILL PERMIT AN ORDERLY TRANSITION FROM THE WOMEN'S ARMY CORPS TO THE NEW RESERVE STATUS.

THE PURPOSE OF THE ACT OF JUNE 19, 1948, IS STATED ON PAGE 1 OF REPORT NO. 2172, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, TO ACCOMPANY S. 1783, AS FOLLOWS:

THE PURPOSE OF S. 1783 IS TO PERMIT THE RETENTION OF CERTAIN DISABLED ARMY AND AIR FORCE PERSONNEL BEYOND THE STATUTORY TERMINATION DATE OF THEIR APPOINTMENTS IN ORDER TO COMPLETE THEIR HOSPITALIZATION OR TREATMENT.

UNDER EXISTING LAWS ALL PERSONNEL OF THE REGULAR ARMY, AIR FORCE, AND THE RESERVES ARE ADEQUATELY PROVIDED FOR IN THE EVENT THEY ARE HOSPITALIZED, DUE TO DISABILITY, FOR A PERIOD OF MORE THAN 6 MONTHS AFTER THE END OF THE WAR. HOWEVER, THE GREAT BULK OF PERSONNEL COMMISSIONED DURING THE WAR WERE COMMISSIONED IN THE ARMY OF THE UNITED STATES AND THESE APPOINTMENTS WERE FOR THE DURATION OF THE PRESENT EMERGENCY AND FOR 6 MONTHS THEREAFTER. SOME OF THESE NEED FURTHER HOSPITALIZATION AND THIS BILL WILL PERMIT THEM TO BE PAID AND OTHERWISE PROVIDED FOR, PENDING THE COMPLETION OF THEIR HOSPITALIZATION AND MEDICAL CARE.

IN A LETTER OF JULY 31, 1947, TO THE CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, PUBLISHED IN THE ABOVE-QUOTED REPORT NO. 2172, THE ACTING SECRETARY OF WAR STATED:

* * * ANY TERMINATION OF PRESENT LAWS AUTOMATICALLY TERMINATES THEIR (OFFICERS HOLDING ONLY AUS APPOINTMENTS UNDER THE 1941 ACT) MILITARY STATUS.

SIGNIFICANCE MUST BE ATTACHED TO THE FACT THAT WHILE SECTION 515 OF THE OFFICER PERSONNEL ACT OF AUGUST 7, 1947, 61 STAT. 906, REENACTED MOST OF THE PROVISIONS OF THE 1941 ACT, NO PROVISION WAS MADE FOR CONTINUING THE APPOINTMENTS AND MILITARY STATUS OF PERSONS HOLDING ONLY APPOINTMENTS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT MADE UNDER THE 1941 ACT. YET SECTION 515 (C) OF THE OFFICER PERSONNEL ACT EXPRESSLY PROVIDED THAT ANY OFFICER OF THE REGULAR ARMY, OR OF ANY OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES SERVING ON ACTIVE FEDERAL DUTY, THEN HOLDING A TEMPORARY APPOINTMENT OF HIGHER GRADE THAN HIS PERMANENT GRADE, UNDER ANY PROVISION OF LAW,"MAY BE CONTINUED THEREIN AS THOUGH HE HAD BEEN APPOINTED THERETO UNDER THE PROVISIONS OF THIS SECTION.' SUCH LEGISLATION APPEARS TO HAVE RECOGNIZED THAT THE REPEAL OF THE 1941 ACT WOULD EFFECT A TERMINATION OF ALL TEMPORARY APPOINTMENTS MADE UNDER THAT ACT INCLUDING TEMPORARY PROMOTIONS. HOWEVER, ACTION WAS TAKEN TO PRESERVE ONLY THE TEMPORARY PROMOTIONS; NOT THE APPOINTMENTS OF PERSONS WHOSE OFFICER STATUS DEPENDED SOLELY ON THEIR APPOINTMENTS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. HENCE, IT WOULD BE UNTENABLE TO HOLD THAT THE PROVISIONS OF SECTION 515 (E) OF THE OFFICER PERSONNEL ACT, AUTHORIZING THE ISSUANCE OF ACTIVE-DUTY ORDERS, AND THE PROVISIONS OF SECTION 515 (G) OF THE SAME ACT, AUTHORIZING PAY AND ALLOWANCES, WERE INTENDED TO HAVE ANY APPLICATION TO PERSONS WHOSE SOLE CLAIM TO STATUS AS COMMISSIONED OFFICERS AFTER JULY 1, 1948, DEPENDED ON APPOINTMENTS WHICH WERE MADE UNDER THE ACT OF SEPTEMBER 22, 1941, AND WERE NOT CONTINUED IN EXISTENCE BY SOME EXPRESS PROVISION IN THE OFFICER PERSONNEL ACT. AND, OF COURSE, THE COMPARABLE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, FOR ACTIVE-DUTY ORDERS AND PAY, AHD NO FORCE AFTER THE REPEAL OF THAT ACT EFFECTIVE JULY 1, 1948. IS HARDLY CONCEIVABLE THAT THE CONGRESS WOULD HAVE REPEALED THE PROVISIONS FOR ACTIVE-DUTY ORDERS AND PAY FOR ANY PERSONS APPOINTED UNDER THE 1941 ACT AND SUBSTITUTED NOTHING FOR THOSE PROVISIONS (FOR PERSONS HOLDING ONLY APPOINTMENTS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT) UNLESS IT CONTEMPLATED THAT THE REPEAL OF THE 1941 ACT WOULD HAVE THE EFFECT OF TERMINATING ALL APPOINTMENTS WHICH HAD BEEN MADE UNDER THAT ACT AND WHICH WERE NOT EXPRESSLY CONTINUED IN EXISTENCE BY OTHER STATUTORY PROVISIONS.

THERE IS ANOTHER PROVISION IN THE ACT OF JULY 25, 1947, WHICH IS FOR CONSIDERATION IN THIS MATTER. SECTION 3 OF THAT ACT PROVIDES, AMONG OTHER THINGS, THAT IN INTERPRETING SECTION 2 OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, 10 U.S.C. 16A, (CHAPTER 571), THE DATE, JULY 25, 1947, SHALL BE DEEMED TO BE THE DATE OF TERMINATION OF ANY STATE OF WAR THERETOFORE DECLARED BY THE CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY 27, 1941. SECTION 2 OF THE ACT OF DECEMBER 13, 1941, AMONG OTHER THINGS, EXTENDED THE PERIODS OF APPOINTMENT OF ALL OFFICERS OF THE ARMY OF THE UNITED STATES THEN OR THEREAFTER IN THE SERVICE, FOR THE PERIOD OF THE WAR IN WHICH THE UNITED STATES WAS THEN ENGAGED AND FOR SIX MONTHS AFTER THAT WAR. THIS FURTHER PROVISION OF THE ACT OF JULY 25, 1947, WOULD SEEM TO BE AN ADDITIONAL INDICATION OF A LEGISLATIVE INTENT TO TERMINATE WARTIME OFFICER APPOINTMENTS IN THE ARMY OF THE UNITED STATES WITHIN A RELATIVELY SHORT PERIOD AFTER THE DATE OF THAT ACT.

THERE HAS NOT BEEN OVERLOOKED THE CASE OF MILEY V. MARSHALL ET AL., 100 F.1SUPP. 1012 (AFFIRMED IN 193 F.2D 712), IN WHICH IT WAS HELD THAT THE APPOINTMENT OF AN OFFICER TO THE OFFICERS' RESERVE CORPS IN 1946 FOR A PERIOD OF FIVE YEARS UNDER THE PROVISIONS OF SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, CONTINUED UNTIL SIX MONTHS AFTER THE TERMINATION OF WORLD WAR II BY REASON OF THE PROVISIONS OF PARAGRAPH 7, SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED. THAT CASE APPEARS TO BE READILY DISTINGUISHABLE FROM THE SITUATION HERE INVOLVED. THE PLAINTIFF ALREADY HELD AN APPOINTMENT IN THE ARMY OF THE UNITED STATES AT THE TIME HE WAS APPOINTED A CAPTAIN IN THE OFFICERS' RESERVE CORPS AND IT WAS THE DURATION OF THE LATTER APPOINTMENT WHICH WAS DECIDED IN THAT CASE. SUCH APPOINTMENT SEEMED TO COME WITHIN THE PROVISIONS OF SECTION 127A. THERE WAS NO QUESTION IN THAT CASE AS TO THE EFFECT OF REPEAL OF THE ACT UNDER WHICH THE PLAINTIFF WAS APPOINTED.

IN VIEW OF THE MATTERS CONSIDERED ABOVE, IT SEEMS APPARENT THAT THERE IS, AT THE LEAST, GRAVE DOUBT THAT THE PERTINENT STATUTORY PROVISIONS CONTEMPLATED THAT PERSONS WHOSE MILITARY STATUS DEPENDED SOLELY ON APPOINTMENTS AS OFFICERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, MADE UNDER THE ACT OF SEPTEMBER 22, 1941, WOULD CONTINUE TO BE OFFICERS AFTER JULY 1, 1948. IN A MATTER INVOLVING SUCH GRAVE DOUBT, WE ARE CONSTRAINED TO RESOLVE THE DOUBT IN FAVOR OF THE CONCLUSION WHICH WILL RESULT IN THE CONSERVATION OF APPROPRIATED FUNDS, AND, THUS, TO RESERVE FOR THE COURTS THE ULTIMATE DETERMINATION OF THE MATTER. SEE LONGWILL V. UNITED STATES, 17 C.1CLS. 88; CHARLES V. UNITED STATES, 19 C.1CLS. 316. THE FIRST QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE.

IN A DIRECTIVE DATED NOVEMBER 7, 1941, ISSUED BY THE ADJUTANT GENERAL ON ORDER OF THE SECRETARY OF WAR, ESTABLISHING POLICIES RELATING TO APPOINTMENTS IN THE ARMY OF THE UNITED STATES UNDER THE ACT OF SEPTEMBER 22, 1941, IT WAS STATED THAT "ALL PERSONS COMMISSIONED AS OFFICERS DURING THE PRESENT EMERGENCY WILL BE APPOINTED IN THE ARMY OF THE UNITED STATES" UNDER THAT ACT, WITH EXCEPTION OF THOSE WHO WERE REQUIRED TO BE APPOINTED IN ONE OF THE COMPONENTS. NO ARMY PUBLICATION HAS BEEN FOUND WHICH ANNOUNCED A DIFFERENT POLICY WITH RESPECT TO APPOINTMENTS IN THE ARMY OF THE UNITED STATES AFTER THE COMMENCEMENT OF WORLD WAR II. FURTHER, IT APPEARS THAT, DURING THE PERIOD OF SUCH WAR, LEGISLATION SPONSORED BY THE WAR DEPARTMENT WITH RESPECT TO FLIGHT OFFICERS (56 STAT. 649), WOMEN'S ARMY CORPS PERSONNEL (57 STAT. 371), AND FEMALE MEDICAL PERSONNEL (58 STAT. 324), SPECIFICALLY PROVIDED THAT APPOINTMENTS OF SUCH PERSONNEL AS COMMISSIONED OFFICERS WOULD BE MADE UNDER THE ACT OF SEPTEMBER 22, 1941.

IT IS UNDERSTOOD THAT MOST OF THE APPOINTMENTS IN THE ARMY OF THE UNITED STATES WHICH WERE ISSUED AFTER THE COMMENCEMENT OF WORLD WAR II DID NOT MENTION THE STATUTORY AUTHORITY UNDER WHICH THEY WERE ISSUED. WHILE SOME APPOINTMENTS STATED THAT THE COMMISSIONS WERE TO CONTINUE FOR THE ,PRESENT EMERGENCY AND SIX MONTHS THEREAFTER"--- THE PHRASEOLOGY OF THE 1941 ACT--- AND OTHERS STATED THE PERIOD AS FOR THE "WAR AND SIX MONTHS THEREAFTER," THAT DIFFERENCE IS NOT REGARDED AS SIGNIFICANT, SINCE THE TERMS "EMERGENCY" AND "WAR" WERE OFTEN USED INTERCHANGEABLY AND SECTION 2 OF THE CITED ACT OF DECEMBER 13, 1941, EXTENDED THE PERIOD OF APPOINTMENT OF ALL MEMBERS OF THE ARMY OF THE UNITED STATES SUBJECT TO ACTIVE MILITARY SERVICE FOR THE DURATION OF THE "WAR" AND SIX MONTHS. IN THE CIRCUMSTANCES, AND IN VIEW OF THE GRAVE DOUBT AS TO WHETHER PARAGRAPH 7, SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED, CONTAINED AUTHORITY FOR THE APPOINTMENT OF OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, QUESTION 2, ALSO, IS ANSWERED IN THE NEGATIVE.