A-95848, DECEMBER 9, 1938, 18 COMP. GEN. 528

A-95848: Dec 9, 1938

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PAY - RESIGNATION OF MILITARY OFFICER - DELAY IN RECEIPT OF NOTICE OF ACCEPTANCE ALTHOUGH IT IS SETTLED THAT THE SUBMISSION OF A RESIGNATION DOES NOT SEPARATE AN OFFICER FROM THE MILITARY SERVICE. THAT THE RESIGNATION WHEN ACCEPTED BY THE PRESIDENT IS EFFECTIVE. IF A FUTURE DATE IS NOT FIXED. WHERE THE MILITARY AUTHORITIES CONTACTED THE ADDRESS GIVEN BY THE OFFICER FOR THAT PURPOSE DURING A PERIOD OF EXTENDED LEAVE OF ABSENCE AND OTHERWISE WERE DILIGENT IN THEIR EFFORTS TO LOCATE HIM. THE OFFICER WAS DERELICT WITH REGARD TO HIS DUTY IN THE MATTER. THE DATE OF RECEIPT OF NOTICE OF ACCEPTANCE MUST BE TREATED AS THE DATE HE SHOULD HAVE RECEIVED THE NOTICE IN DUE COURSE AND NOT THE DATE OF ACTUAL NOTICE UNDER THE CIRCUMSTANCES.

A-95848, DECEMBER 9, 1938, 18 COMP. GEN. 528

PAY - RESIGNATION OF MILITARY OFFICER - DELAY IN RECEIPT OF NOTICE OF ACCEPTANCE ALTHOUGH IT IS SETTLED THAT THE SUBMISSION OF A RESIGNATION DOES NOT SEPARATE AN OFFICER FROM THE MILITARY SERVICE, AND THAT THE RESIGNATION WHEN ACCEPTED BY THE PRESIDENT IS EFFECTIVE, IF A FUTURE DATE IS NOT FIXED, FROM DATE OF RECEIPT OF NOTICE OF ACCEPTANCE BY THE OFFICER IN THE ORDINARY COURSE, AN OFFICER MAY NOT CONTINUE HIMSELF IN THE SERVICE BY AVOIDING THE RECEIPT OF NOTICE OF ACCEPTANCE OF THE RESIGNATION, AND WHERE THE MILITARY AUTHORITIES CONTACTED THE ADDRESS GIVEN BY THE OFFICER FOR THAT PURPOSE DURING A PERIOD OF EXTENDED LEAVE OF ABSENCE AND OTHERWISE WERE DILIGENT IN THEIR EFFORTS TO LOCATE HIM, AND THE OFFICER WAS DERELICT WITH REGARD TO HIS DUTY IN THE MATTER, THE DATE OF RECEIPT OF NOTICE OF ACCEPTANCE MUST BE TREATED AS THE DATE HE SHOULD HAVE RECEIVED THE NOTICE IN DUE COURSE AND NOT THE DATE OF ACTUAL NOTICE UNDER THE CIRCUMSTANCES.

ACTING COMPTROLLER GENERAL ELLIOTT TO LIEUTENANT COLONEL W. M. DIXON, UNITED STATES ARMY, DECEMBER 9, 1938:

THERE WAS DULY RECEIVED YOUR REQUEST OF JUNE 9, 1938, FOR DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER THEREWITH TRANSMITTED CONTAINING THE CLAIM OF FORMER FIRST LT. JAMES W. PUMPELLY, INFANTRY, UNITED STATES ARMY, FOR THE PERIOD FEBRUARY 1 TO 13, 1938, THE DOUBT AS TO THE PROPRIETY OF PAYMENT BEING DUE TO DELAY IN RECEIPT BY THE OFFICER OF NOTICE OF ACCEPTANCE OF HIS RESIGNATION.

IT APPEARS THAT WHILE ON DUTY WITH THE SIXTEENTH INFANTRY BY PARAGRAPH 7 OF SPECIAL ORDERS NO. 276, HEADQUARTERS, SECOND CORPS AREA, NOVEMBER 29, 1937, THE OFFICER WAS GRANTED LEAVE OF ABSENCE FOR 3 MONTHS EFFECTIVE ON OR ABOUT NOVEMBER 29, 1937, WITH PERMISSION TO LEAVE THE CONTINENTAL LIMITS OF THE UNITED STATES. LEAVE OF ABSENCE HAD THERETOFORE BEEN GRANTED FOR 4 DAYS BY ORAL ORDER ORDER OF THE COMMANDING OFFICER, FORT JAY, N.Y., EFFECTIVE ON OR ABOUT NOVEMBER 25, 1937 (SEE PAR. 3, S.O. 265, HEADQUARTERS, FORT JAY, N.Y., NOVEMBER 29, 1937). THE GRANT OF 3 MONTHS' LEAVE WOULD THEREFORE HAVE EXPIRED ON OR ABOUT FEBRUARY 28, 1938. THE ADJUTANT OF THE SIXTEENTH INFANTRY CERTIFIED JULY 18, 1938, AS FOLLOWS:

THIS IS TO CERTIFY THAT ACCORDING TO RECORDS ON FILE AT THIS HEADQUARTERS, THE REQUEST FOR LEAVE OF ABSENCE DATED NOVEMBER 20, 1937,FOR THREE MONTHS, EFFECTIVE ON OR ABOUT NOVEMBER 27, 1937, IN THE CASE OF FORMER FIRST LIEUTENANT JAMES W. PUMPELLY, 16TH INFANTRY, SHOWS HIS OFFICIAL ADDRESS FOR FORWARDING MAIL AS:

C/O MRS. JAMES PUMPELLY

ARPARTADO 367

CAYEY, P.R.

FURTHER, THAT THERE IS NO OTHER OFFICIAL ADDRESS KNOWN TO BE OF RECORD.

BY LETTER DATED JANUARY 10, 1938, FROM CALLE MUNOZ RIVERA, CAYEY, PUERTO RICO, ADDRESSED TO THE ADJUTANT GENERAL OF THE ARMY THROUGH MILITARY CHANNELS, THE OFFICER REQUESTED THAT HIS ,RESIGNATION AS AN OFFICE OF THE ARMY OF THE UNITED STATES BE ACCEPTED BY THE PRESIDENT.' BY LETTER DATED JANUARY 29, 1938, DATED AT POST OF SAN JUAN, P.R., THE OFFICER ADDRESSED THE COMMANDING GENERAL, SECOND CORPS AREA, GIVING HIS REASONS FOR DESIRING TO RESIGN FROM THE ARMY AND CONCLUDED THAT LETTER --

3. MY PRESENT ADDRESS IS P.O. BOX 894, SAN JUAN, PUERTO RICO.

BY PARAGRAPH 16, WAR DEPARTMENT SPECIAL ORDERS NO. 27 OF FEBRUARY 2, 1938, THE FOLLOWING ANNOUNCEMENT WAS MADE:

THE RESIGNATION BY FIRST LIEUTENANT JAMES WILLARD PUMPELLY, INFANTRY, OF HIS COMMISSION AS AN OFFICER OF THE ARMY, IS ACCEPTED BY THE PRESIDENT.

ADVICE TO THIS EFFECT WAS SENT BY THE ADJUTANT GENERAL TO THE COMMANDING GENERAL, SECOND CORPS AREA, ON THE SAME DATE, AND AMONG OTHER MATTERS DIRECTED:

* * * WIRE THIS OFFICE DATE LIEUTENANT PUMPELLY RECEIVES OFFICIAL NOTIFICATION OF ACCEPTANCE OF RESIGNATION. * * *

IN RESPONSE TO A RADIO INQUIRY OF THE ADJUTANT GENERAL FEBRUARY 14, THE COMMANDING GENERAL OF THE SECOND CORPS AREA RADIOED:

REPORT THAT FIRST LIEUTENANT JAMES W. PUMPELLY, INFANTRY, RECEIVED OFFICIAL NOTIFICATION ACCEPTANCE OF RESIGNATION ON FEBRUARY THIRTEENTH WAS MADE BY RADIO THIS DATE STOP DELAY DUE DIFFICULTY CONTACTING OFFICER NOW IN PUERTO RICO * * *

IN RESPONSE TO A WAR DEPARTMENT RADIOGRAM OF APRIL 25, 1938, TO THE COMMANDING OFFICER, SAN JUAN, PUERTO RICO, REQUESTING INFORMATION SHOWING THE CIRCUMSTANCES WHICH CAUSED THE DELAYED NOTIFICATION OF THE ACCEPTANCE OF THE OFFICER'S RESIGNATION, THE COMMANDING OFFICER OF THE POST OF SAN JUAN BY RADIO OF APRIL 26, 1938, REPORTED AS FOLLOWS:

REURAD APRIL TWENTY-FIFTH PERIOD DURING PERIOD IN QUESTION LIEUT. PUMPELLY WAS ASSIGNED TO SIXTEENTH INFANTRY AND ON THREE MONTHS' LEAVE IN PUERTO RICO TRAVELING THROUGHOUT ISLAND FOR PURPOSE OF BUILDING UP CIVILIAN BROKERAGE BUSINESS VENTURE PRECEDING RESIGNATION PERIOD BEGINNING FEBRUARY THIRD EVERY EFFORT WAS MADE (5PHI) TO CONTACT HIM INCLUDING DAILY QUESTIONING MRS. PUMPELLY AND BUSINESS ASSOCIATES PERIOD EACH REPORT OF HIS WHEREABOUTS WAS INVESTIGATED PERIOD ASSISTANCE WAS RENDERED BY REGULAR ARMY OFFICERS ON NATIONAL GUARD DUTY IN ISLAND PERIOD ON EVENING FEBRUARY EIGHT HE CALLED AT QUARTERS PERSONNEL ADJUTANT POST SAN/JUAN WHO WAS OFF THE (1PHIPHI) POST PERIOD ALTHO LIEUT PUMPELLY WAS INFORMED BY SERVANT OF WHEREABOUTS OF ADJUTANT HE MADE NO EFFORT TO CONTACT HIM PERIOD INSTEAD HE LEFT A WRITTEN PROXY AUTHORIZING THE ADJUTANT TO SIGN PAPERS AND A NOTE GIVING INFORMATION AS TO WHERE HE COULD BE CONTACTED AND STATING THEREIN HE HAD (15PHI) BEEN TOO BUSY TO COME SOONER PERIOD EFFORTS TO LOCATE HIM AT ADDRESS GIVEN WERE UNSUCCESSFUL PERIOD ON FEBRUARY TWELFTH WIFE AND FRIENDS WERE NOTIFIED THAT POLICE ASSISTANCE WOULD BE REQUESTED IF THEY COULD NOT LOCATE HIM IN TWENTY FOUR HOURS PERIOD HE TELEGRAPHED FROM PONCE NIGHT OF TWELFTH AND (2PHIPHI) REPORTED THIS HEADQUARTERS MORNING THIRTEENTH PERIOD SECOND CORPS AREA WAS NOTIFIED BY RADIO ON FEBRUARY FIFTH OF INABILITY TO CONTACT HIM.

IT IS, OF COURSE, SETTLED THAT THE SUBMISSION OF A RESIGNATION DOES NOT SEPARATE AN OFFICER FROM THE MILITARY SERVICE AND THAT THE RESIGNATION WHEN ACCEPTED BY THE PRESIDENT IS EFFECTIVE, IF A FUTURE DATE IS NOT FIXED, FROM THE DATE OF RECEIPT OF NOTICE OF ACCEPTANCE BY THE OFFICER IN THE ORDINARY COURSE. IN THE BARGER CASE, 6 CT.CLS. 35, WHERE THERE WAS A DELAY ATTRIBUTABLE TO OTHER OFFICERS IN THE DELIVERY OF THE ACCEPTANCE OF THE OFFICER'S RESIGNATION THE COURT, AT PAGE 38, USED THE FOLLOWING LANGUAGE:

* * * WHOSOEVER ELSE MAY HAVE BEEN TO BLAME FOR NOT GIVING THIS INFORMATION TO CLAIMANT, IT IS QUITE CLEAR THAT HE WAS WITHOUT FAULT IN THE PREMISES. AND AT PAGE 39---

IF THE COLONEL COMMANDING THE REGIMENT IN WHICH CLAIMANT WAS SERVING CHOSE TO TAKE THE RESPONSIBILITY OF WITHHOLDING FROM HIM THE KNOWLEDGE OF THE ACCEPTANCE OF HIS RESIGNATION, THE COLONEL, AND NOT THE CLAIMANT, WAS IN FAULT.

SO, ALSO, IN GOULD'S CASE, 19 CT.CLS. 593, AT PAGE 595, THE COURT STATED:

THE DISCHARGE OF AN OFFICER OF THE ARMY DOES NOT TAKE EFFECT SO AS TO RELIEVE THE GOVERNMENT FROM ITS OBLIGATIONS TO HIM UNTIL HE IS NOTIFIED OF THE FACT AND IS ACTUALLY DISCHARGED FROM SERVICE. WHILE HE IS RETAINED IN SERVICE WITHOUT HIS FAULT, IN IGNORANCE OF AN ORDER, WHICH DISMISSES HIM, HE IS TO ALL INTENTS AND PURPOSES SO FAR AN OFFICER OF THE ARMY AS TO BE ENTITLED TO ALL COMPENSATION AND EMOLUMENTS OF THE OFFICE.

SO THAT IF THERE IS DELAY IN THE RECEIPT OF THE ACCEPTANCE OF THE RESIGNATION BY AN OFFICER AT THE PLACE HE SHOULD RECEIVE IT, EITHER FIXED BY HIS STATION OR ASSIGNMENT IF ON DUTY, OR AT THE PLACE GIVEN AS HIS ADDRESS WHILE ON LEAVE, DUE TO HIS FAULT, HE CAN NOT CONTINUE HIMSELF IN THE SERVICE BY AVOIDING THE RECEIPT OF NOTICE OF THE ACCEPTANCE OF HIS RESIGNATION. THIS SEEMS TO HAVE BEEN THE UNIFORM RULE OF THE WAR DEPARTMENT, SEE OPS.J.A.G. 1912, PAGE 816, PARAGRAPH IV, D5C/1), WHICH SHOWS THE REPEATED APPLICATION OF THAT VIEW OF THE LAW. THIS CASE MUST BE JUDGED BY THAT ESTABLISHED RULE.

HERE THE OFFICER WAS ON EXTENDED LEAVE WHEN ON JANUARY 10, 1938, HE SUBMITTED HIS RESIGNATION. ON JANUARY 29, HE HAD COMMUNICATED WITH THE COMMANDING GENERAL OF THE SECOND CORPS AREA AS TO THE REASONS FOR HIS RESIGNATION. HE DID NOT CHANGE THE ADDRESS OFFICIALLY AND FORMALLY LEFT WITH THE ADJUTANT OF THE SIXTEENTH INFANTRY, WHERE HE COULD BE REACHED BY MAIL WHILE ON LEAVE. BECAUSE OF THE REQUIREMENTS OF ARMY REGULATIONS THAT THE NOTICE OF ACCEPTANCE OF RESIGNATION BE DELIVERED TO THE OFFICER IN PERSON AND HIS ACKNOWLEDGEMENT SECURED, THE COMMANDING OFFICER AT THE POST OF SAN JUAN DEEMED IT NECESSARY TO DELIVER THE NOTICE OF ACCEPTANCE OF RESIGNATION PERSONALLY TO THE OFFICER. TO THAT END COMMENCING FEBRUARY 3 HE COMMUNICATED WITH THE OFFICER'S WIFE AT THE ADDRESS GIVEN BY THE OFFICER AS TO THE WHEREABOUTS OF THE OFFICER. EFFORTS WERE ALSO MADE WITH THE SAME PURPOSE BY INQUIRIES MADE OF THE OFFICER'S BUSINESS ASSOCIATES. THE ASSISTANCE OF REGULAR ARMY OFFICERS ON DUTY WITH THE NATIONAL GUARD IN PUERTO RICO WAS ALSO UTILIZED. APPARENTLY AS A RESULT OF THESE WIDESPREAD INQUIRIES THE OFFICER CALLED AT THE QUARTERS OF THE PERSONNEL ADJUTANT, POST OF SAN JUAN, ON THE EVENING OF FEBRUARY 8, WHEN THE ADJUSTANT WAS ABSENT FROM THE POST, AND ALTHOUGH HE WAS INFORMED WHERE HE COULD INTERVIEW THE ADJUTANT, HE MADE NO SUCH EFFORT BUT LEFT AN UNSATISFACTORY NOTE AND "INFORMATION AS TO WHERE HE COULD BE CONTACTED," BUT EFFORTS TO LOCATE HIM AT SUCH ADDRESS WERE NO MORE SUCCESSFUL THAN THE PRIOR EFFORTS. FINALLY ON FEBRUARY 12, HIS WIFE AND HIS FRIENDS, THE PERSONS THERETOFORE COMMUNICATED WITH, WERE INFORMED THAT IF THE OFFICER WAS NOT LOCATED WITHIN 24 HOURS THE SERVICES OF THE POLICE WOULD BE UTILIZED TO LOCATE HIM. THEN, AND THEN ONLY, DID THE OFFICER COMMUNICATE WITH THE ADJUTANT AT THE POST OF SAN JUAN AND ON FEBRUARY 13, REPORTED AT THE POST WHERE THE NOTICE OF ACCEPTANCE OF RESIGNATION WAS DELIVERED TO HIM AND HIS ACKNOWLEDGMENT OF SUCH DELIVERY SECURED.

ON THESE FACTS IS TO BE DETERMINED WHETHER OR NOT THE DELAY IN RECEIPT OF THE NOTICE OF THE ACCEPTANCE OF HIS RESIGNATION WAS DUE TO THE FAULT OF THE OFFICER. IT SEEMS EVIDENT, HAVING SUBMITTED HIS RESIGNATION AND BEING ON LEAVE UNTIL THE END OF FEBRUARY, HE MUST HAVE KNOWN WHAT THE PURPOSE WAS OF THE EFFORT OF THE COMMANDING OFFICER OF THE POST OF SAN JUAN IN ATTEMPTING TO SECURE HIS REPORTING AT THE POST. HE ACTUALLY REPORTED FEBRUARY 8, AFTER USUAL BUSINESS HOURS, BUT MADE NO EFFORT THEN TO COMMUNICATE WITH THE ADJUTANT BUT LEFT AN ADDRESS WHICH WAS OF NO MORE VALUE IN SECURING HIS RESPONSE THAN THE ADDRESS THERETOFORE USED BY THE COMMANDING OFFICER OF THE POST OF SAN JUAN WHICH WAS THE ADDRESS LEFT WITH THE ADJUTANT OF THE SIXTEENTH INFANTRY WHEN GOING ON LEAVE. WHETHER IT IS INTEREST IN HIS BUSINESS VENTURE OR OTHERWISE, IT IS OBVIOUS AN OFFICER CANNOT RUN AWAY FROM A NOTICE OF THE ACCEPTANCE OF HIS RESIGNATION AND KEEP HIMSELF IN A PAY STATUS. HAD THE OFFICER RESPONDED TO THE NOTICE OF FEBRUARY 3 GIVEN TO HIS WIFE AT THE ADDRESS LEFT BY HIM AS PROMPTLY AS HE DID WHEN HIS WIFE WAS INFORMED THAT THE SERVICES OF THE POLICE WOULD BE UTILIZED IN LOCATING HIM, HE WOULD HAVE REPORTED FEBRUARY 4, 1938. FOR PAY PURPOSES THAT DATE MUST BE TREATED AS THE DATE HE SHOULD HAVE RECEIVED NOTICE IN DUE COURSE OF THE ACCEPTANCE OF HIS RESIGNATION. THE VOUCHER IS RETURNED HEREWITH AND YOU ARE AUTHORIZED TO PAY IT IN THE PROPER AMOUNT FOR THE PERIOD FEBRUARY 1 TO 4, 1938.