A-53121, FEBRUARY 8, 1934, 13 COMP. GEN. 214

A-53121: Feb 8, 1934

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GRATUITIES - ONE YEAR'S PAY - NAVY OFFICER AN ENSIGN IN THE NAVY WHOSE COMMISSION WAS REVOKED BECAUSE OF MISCONDUCT. IS NOT ENTITLED UPON DISCHARGE TO 1 YEAR'S PAY OR ANY PART THEREOF. IS HEREBY REVOKED. AT WHICH TIME YOU WILL CEASE TO BE AN OFFICER OF THE NAVY. 2. ACKNOWLEDGMENT OF RECEIPT IS REQUESTED. EACH OFFICER WHOSE COMMISSION IS SO REVOKED SHALL BE DISCHARGED FROM THE SERVICE WITH NOT MORE THAN 1 YEAR'S PAY. * * * REGULATIONS PURSUANT TO THIS ACT. THE SECRETARY OF THE NAVY MAY REVOKE THE COMMISSION OF ANY OFFICER WHOSE CONDUCT OR PERFORMANCE OF DUTY IS SUCH AS NOT TO JUSTIFY HIS RETENTION AS AN OFFICER OF THE NAVY. OR WHO FAILS IN THE EXAMINATION WHICH ARE TO BE HELD PRIOR TO THE EXPIRATION OF THE TWO-YEAR PERIOD OF SUCH COMMISSIONED SERVICE.

A-53121, FEBRUARY 8, 1934, 13 COMP. GEN. 214

GRATUITIES - ONE YEAR'S PAY - NAVY OFFICER AN ENSIGN IN THE NAVY WHOSE COMMISSION WAS REVOKED BECAUSE OF MISCONDUCT, UNDER THE ACT OF MAY 6, 1932, 47 STAT. 149, 150, AND REGULATIONS ISSUED PURSUANT THERETO, IS NOT ENTITLED UPON DISCHARGE TO 1 YEAR'S PAY OR ANY PART THEREOF.

COMPTROLLER GENERAL MCCARL TO LEROY B. HALSEY, FEBRUARY 8, 1934:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR REVIEW OF SETTLEMENT OF NOVEMBER 23, 1933, DISALLOWING YOUR CLAIM FOR 1 YEAR'S PAY BY REASON OF THE REVOCATION OF YOUR COMMISSION EFFECTIVE APRIL 30, 1933.

ON APRIL 6, 1933, THE SECRETARY OF THE NAVY ISSUED ORDERS TO YOU AS FOLLOWS: FROM: SECRETARY OF THE NAVY. TO: ENSIGN LEROY B. HALSEY, U.S.N.

U.S.S. WEST VIRGINIA. VIA: COMMANDER, BATTLESHIPS, BATTLE FORCE. SUBJECT: REVOCATION OF APPOINTMENT. REFERENCE:

(A) ACT OF CONGRESS APPROVED MAY 6, 1932--- PUBLIC, NO. 122, 72D

CONGRESS.

(B) LETTER FROM COMMANDING OFFICER, U.S.S. WEST VIRGINIA, DATED

MARCH 19, 1933, RELATIVE TO YOUR MISCONDUCT.

1. YOUR APPOINTMENT AS AN ENSIGN IN THE NAVY REVOCABLE FOR A PERIOD OF TWO YEARS FROM JUNE 2, 1932, IS HEREBY REVOKED, EFFECTIVE APRIL 30, 1933, AT WHICH TIME YOU WILL CEASE TO BE AN OFFICER OF THE NAVY.

2. ACKNOWLEDGMENT OF RECEIPT IS REQUESTED.

REFERENCE (A), ACT OF MAY 6, 1932, 47 STAT. 149, 150, PROVIDES:

SEC. 2. THAT ALL COMMISSIONS HEREAFTER ISSUED AS ENSIGNS IN THE LINE OF THE NAVY, SECOND LIEUTENANTS IN THE MARINE CORPS, AND IN THE LOWEST COMMISSIONED GRADES OF THE STAFF CORPS OF THE NAVY WITH THE RANK OF ENSIGN, MAY BE REVOKED BY THE SECRETARY OF THE NAVY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, AT ANY TIME DURING A PERIOD OF TWO YEARS FROM THE DATES OF SUCH COMMISSION, AND EACH OFFICER WHOSE COMMISSION IS SO REVOKED SHALL BE DISCHARGED FROM THE SERVICE WITH NOT MORE THAN 1 YEAR'S PAY. * * *

REGULATIONS PURSUANT TO THIS ACT, NAVY GENERAL ORDER NO. 229, OCTOBER 14, 1932, PROVIDE:

1. (A) IN THE CASE OF OFFICERS SERVING UNDER REVOCABLE COMMISSIONS AS PROVIDED IN THE ACT OF CONGRESS APPROVED MAY 6, 1932, THE SECRETARY OF THE NAVY MAY REVOKE THE COMMISSION OF ANY OFFICER WHOSE CONDUCT OR PERFORMANCE OF DUTY IS SUCH AS NOT TO JUSTIFY HIS RETENTION AS AN OFFICER OF THE NAVY; OR WHO FAILS IN THE EXAMINATION WHICH ARE TO BE HELD PRIOR TO THE EXPIRATION OF THE TWO-YEAR PERIOD OF SUCH COMMISSIONED SERVICE; OR WHOSE RETENTION AS AN OFFICER OF THE NAVY IS NOT JUSTIFIED FOR OTHER GOOD AND SUFFICIENT REASONS APPEARING TO THE SATISFACTION OF THE SECRETARY OF THE NAVY.

(D) IN CASE, UNDER THE PROVISIONS OF THE ACT CITED ABOVE, A COMMISSION IS REVOKED BECAUSE OF MISCONDUCT, THE OFFICER UPON DISCHARGE WILL NOT BE ALLOWED A YEAR'S PAY OR ANY PART THEREOF.

IT IS OBVIOUS THAT YOUR APPOINTMENT AS ENSIGN IN THE NAVY FROM JUNE 2, 1932, WAS UNDER SAID ACT AND THAT THE REVOCATION OF YOUR COMMISSION EFFECTIVE APRIL 30, 1933, WAS PURSUANT TO THE QUOTED REGULATIONS UNDER AUTHORITY OF SAID ACT. YOU CONTEND THAT BY REASON OF THE FACT THAT YOU WERE NOT TRIED BY COURT MARTIAL AND FOUND GUILTY OF MISCONDUCT, THE REVOCATION OF YOUR COMMISSION WAS NOT BY REASON OF MISCONDUCT AND, THEREFORE, UNDER THE STATUTE, YOU ARE ENTITLED TO ONE YEAR'S PAY. THE STATUTE PROVIDES THAT "EACH OFFICER WHOSE COMMISSION IS SO REVOKED SHALL BE DISCHARGED FROM THE SERVICE WITH NOT MORE THAN ONE YEAR'S PAY.' UNDER THE LAW THE SECRETARY OF THE NAVY HAS DISCRETIONARY AUTHORITY TO FIX BY REGULATIONS THE AMOUNT THAT MAY BE PAID AN OFFICER SO DISCHARGED NOT TO EXCEED "ONE YEAR'S PAY.' ACCORDINGLY, PROVISION IN SAID REGULATIONS THAT WHEN "A COMMISSION IS REVOKED BECAUSE OF MISCONDUCT, THE OFFICER UPON DISCHARGE WILL NOT BE ALLOWED A YEAR'S PAY OR ANY PART THEREOF" IS IN ACCORDANCE WITH THE STATUTE.

THE STATUTE DOES NOT REQUIRE THAT THE SECRETARY OF THE NAVY SHALL STATE THE CAUSE FOR REVOCATION OF A COMMISSION BUT THAT THE COMMISSION SHALL BE REVOKED "UNDER SUCH REGULATIONS AS HE (THE SECRETARY) MAY PRESCRIBE," THUS LEAVING THE MATTER OF PRESCRIBING A CAUSE FOR REVOCATION ENTIRELY WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY. THE REGULATIONS, ALSO, PROVIDE, IN PARAGRAPH 1 (C) THAT:

IN CASE THE REVOCATION OF AN OFFICER'S COMMISSION IS RECOMMENDED BY HIS COMMANDING OFFICER OR HIGHER NAVAL AUTHORITY, SUCH RECOMMENDATION SHALL BE ACCOMPANIED BY A COMPLETE STATEMENT OF FACTS, TOGETHER WITH SUCH STATEMENT AS THE OFFICER CONCERNED MAY DESIRE TO MAKE WITH RESPECT THERETO.

IN LETTER TO YOU APRIL 29, 1933, THE SECRETARY OF THE NAVY STATED:

1. THE DEPARTMENT HAS GIVEN CAREFUL CONSIDERATION TO YOUR STATEMENT OF APRIL 22, 1933, IN EXPLANATION OF THE CHARGE OF FALSEHOOD THAT HAS BEEN LAID AGAINST YOU BY THE COMMANDING OFFICER, U.S.S. WEST VIRGINIA.

2. THE FALSEHOOD AND THE PURPOSE FOR RESORTING THERETO STANDS AS AN ADMITTED FACT. THE DEPARTMENT CAN FIND NOTHING IN YOUR STATEMENT IN EXTENUATION OF THIS OFFENSE, AND IS CONVINCED THAT, DESPITE YOUR FOUR YEARS OF TRAINING AT THE NAVAL ACADEMY, YOU HAVE DEMONSTRATED YOUR UNFITNESS TO HOLD A COMMISSION AS ENSIGN. THE SAME OFFENSE, IF COMMITTED BY AN OFFICER NOT SERVING UNDER A REVOCABLE COMMISSION, WOULD REQUIRE TRIAL BY GENERAL COURT MARTIAL, AND UNDER THE CIRCUMSTANCES WOULD INVOLVE DISMISSAL. BECAUSE OF YOUR STATUS, THE DEPARTMENT IS ENABLED TO ADOPT THE LESS HARSH METHOD OF REVOKING YOUR COMMISSION.

3. IN VIEW OF THE FOREGOING, THE DEPARTMENT'S DECISION REMAINS UNCHANGED.

IT MUST BE CONCLUDED FROM THE FACTS THUS APPEARING THAT YOUR COMMISSION WAS REVOKED EFFECTIVE APRIL 30, 1933, FOR "MISCONDUCT (FALSEHOOD)," AND THAT SAID REVOCATION WAS IN ACCORDANCE WITH THE LAW AND REGULATIONS PURSUANT THERETO. YOU ARE NOT THEREFORE ENTITLED TO ONE YEAR'S PAY OR ANY PART THEREOF.