B-101721, JANUARY 25, 1952, 31 COMP. GEN. 335

B-101721: Jan 25, 1952

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AT WHICH TIME HE WAS TO HAVE REVERTED TO THE GRADE OF LIEUTENANT PURSUANT TO THE STATUTE AND THE ORDERS ANNOUNCING HIS PROMOTION TO CAPTAIN. IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED AS A DE FACTO OFFICER IN THE HIGHER GRADE. 1952: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28. IS ENTITLED TO RETAIN THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES. THE FACTS ARE SUMMARIZED IN YOUR LETTER AS FOLLOWS: THIS OFFICER. WAS PROMOTED TO THE GRADE OF CAPTAIN. IN PERTINENT PART " ANNOUNCEMENT IS MADE OF THE TEMP PROMOTION * * * UNDER THE PROVISIONS OF PUBLIC LAW 455 77TH CONGRESS APPROVED 16 FEB. 1942. THESE PROMOTIONS WILL AUTOMATICALLY TERMINATE EFFECTIVE UPON RELIEF FROM DUTY WITH THE ARMY AIR FORCE OR ARMY AIR FORCE INSTALLATIONS.'.

B-101721, JANUARY 25, 1952, 31 COMP. GEN. 335

PAY - OFFICERS IN DE FACTO STATUS - RETENTION OF PAY AND ALLOWANCES AN ARMY OFFICER WHO, IN GOOD FAITH AND WITH KNOWLEDGE AND ACQUIESCENCE OF THE ARMY AUTHORITIES, ERRONEOUSLY CONTINUED TO OCCUPY THE TEMPORARY OFFICE OF CAPTAIN IN THE ARMY FOR OVER SEVEN YEARS SUBSEQUENT TO HIS RELIEF FROM ACTIVE DUTY WITH THE ARMY AIR FORCES, AT WHICH TIME HE WAS TO HAVE REVERTED TO THE GRADE OF LIEUTENANT PURSUANT TO THE STATUTE AND THE ORDERS ANNOUNCING HIS PROMOTION TO CAPTAIN, IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED AS A DE FACTO OFFICER IN THE HIGHER GRADE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, JANUARY 25, 1952:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1951, REQUESTING A DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES RELATED THEREIN, FIRST LIEUTENANT ALEXANDER L. JONES, 10-281965, IS ENTITLED TO RETAIN THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES, INCLUDING UNUSED LEAVE PAY, RECEIVED BY HIM AS A CAPTAIN, AND THOSE OF A FIRST LIEUTENANT, FOR THE PERIOD JANUARY 13, 1943, TO JULY 15, 1950.

THE FACTS ARE SUMMARIZED IN YOUR LETTER AS FOLLOWS:

THIS OFFICER, WHILE SERVING ON EXTENDED ACTIVE DUTY IN THE GRADE OF FIRST LIEUTENANT, INFANTRY RESERVE, ASSIGNED TO THE 71ST AAFFTD, CAMDEN, ARKANSAS, WAS PROMOTED TO THE GRADE OF CAPTAIN, AUS AC,EFFECTIVE 7 DECEMBER 1942, PER PARAGRAPH 18, SPECIAL ORDERS 333, WAR DEPARTMENT, 7 DECEMBER 1942, WHICH STATED, IN PERTINENT PART " ANNOUNCEMENT IS MADE OF THE TEMP PROMOTION * * * UNDER THE PROVISIONS OF PUBLIC LAW 455 77TH CONGRESS APPROVED 16 FEB. 1942. THESE PROMOTIONS WILL AUTOMATICALLY TERMINATE EFFECTIVE UPON RELIEF FROM DUTY WITH THE ARMY AIR FORCE OR ARMY AIR FORCE INSTALLATIONS.' THE PERTINENT PROVISIONS OF PUBLIC LAW 455, 77TH CONGRESS, READ: "* * * THAT, DURING ANY WAR IN WHICH THE UNITED STATES IS NOW ENGAGED, ANY OFFICER OF * * * ANY OTHER SECTION OF THE OFFICERS' RESERVE CORPS ASSIGNED TO DUTY WITH ANY TACTICAL UNIT, OR ANY INSTALLATION OF ANY STAFF, OF THE AIR CORPS * * * MAY BE APPOINTED TO HIGHER TEMPORARY GRADE NOT ABOVE THAT OF COLONEL, WITHOUT VACATING HIS EXISTING COMMISSION IN * * * THE OFFICERS' RESERVE CORPS * * *. * * * SUCH APPOINTMENTS SHALL CONTINUE UNTIL SIX MONTHS AFTER THE TERMINATION OF ANY WAR IN WHICH THE UNITED STATES IS NOW ENGAGED UNLESS SOONER TERMINATED BY ORDER OF THE PRESIDENT, OR UNTIL RELIEVED FROM ASSIGNMENT TO THE DUTY HEREIN DESCRIBED, WHICHEVER IS EARLIER: * * *.'

PARAGRAPH 10, SPECIAL ORDERS 13, WAR DEPARTMENT 1943, AS AMENDED, RELIEVED OFFICER FROM DUTY WITH THE ARMY AIR FORCES, 64TH AAFFTD, CAMDEN, SOUTH CAROLINA, AND ASSIGNED HIM TO THE INFANTRY REPLACEMENT TRAINING CENTER, CAMP CROFT, SOUTH CAROLINA. THESE ORDERS CONTAINED THE FOLLOWING STATEMENT " IF PROVISIONS OF PUBLIC LAW 455 77TH CONGRESS ( SEC 1 BULL 8 WD 1942) APPLY OFFICER WILL NOTIFY FIN O PAYING ACCOUNTS DATE OF RELIEF.' THE SUBJECT OFFICER, BY FIRST INDORSEMENT DATED 19 JANUARY 1943 ADDRESSED TO THE ADJUTANT GENERAL, CALLED ATTENTION TO THE FACT THAT ORDERS RELIEVING HIM FROM DUTY WITH THE AIR CORPS SHOULD PROVIDE FOR REDUCTION TO THE GRADE OF FIRST LIEUTENANT, INFANTRY RESERVE, THE PERMANENT RANK THEN HELD. NO ACTION WAS TAKEN BY THE ADJUTANT GENERAL BY REASON OF THE FACT THAT THE ORDERS SPECIFIED THAT THE OFFICER WAS TO NOTIFY THE FINANCE OFFICER PAYING HIS ACCOUNTS OF THE DATE OF HIS RELIEF FROM DUTY WITH THE AIR CORPS. HOWEVER, ALL SUBSEQUENT ORDERS AND CORRESPONDENCE PERTAINING TO THIS OFFICER HAVE SHOWN HIS GRADE AS CAPTAIN AND HE CONTINUED TO RECEIVE THE ACTIVE DUTY PAY OF A CAPTAIN.

IT FURTHER APPEARS FROM YOUR LETTER THAT THE ERRONEOUS CONTINUATION OF THE GRADE OF CAPTAIN BY LIEUTENANT JONES SUBSEQUENT TO HIS RELIEF FROM DUTY WITH THE ARMY AIR FORCES BY ORDER OF JANUARY 13, 1943, WAS NOT DISCOVERED BY THE DEPARTMENT OF THE ARMY UNTIL JUNE 1950, WHEN HIS PROMOTION TO THE GRADE OF MAJOR WAS BEING CONSIDERED, AND THAT INSTRUCTIONS WERE ISSUED ON JUNE 15, 1950, THAT THE OFFICER DROP THE ASSUMED GRADE OF CAPTAIN IMMEDIATELY AND REVERT TO THE TEMPORARY GRADE OF FIRST LIEUTENANT, ARMY OF THE UNITED STATES. YOU ALSO REFER TO A STATEMENT MADE BY THE OFFICER IN FOURTH INDORSEMENT DATED JULY 15, 1950, TO THE EFFECT THAT UPON REPORTING AT CAMP CROFT, SOUTH CAROLINA, IN 1943, HE INFORMED THE FINANCE OFFICER OF THE PROVISO IN HIS ORDERS RESPECTING REVERSION TO THE GRADE OF FIRST LIEUTENANT UPON RELIEF FROM THE ARMY AIR FORCES; THAT HE WAS INFORMED NO ATTENTION SHOULD BE PAID TO THE PROVISO IN THE ORDERS; THAT HE HAD BEEN PROMOTED TO THE GRADE OF CAPTAIN AND WOULD REMAIN A CAPTAIN, AND THAT SINCE HE ( JONES) CONSIDERED SUCH OFFICER CONVERSANT WITH THE VARIOUS LAWS AND REGULATIONS GOVERNING PAY, HE SAW NO POINT IN CHECKING FURTHER INTO THE MATTER. IN THAT CONNECTION IT MAY BE NOTED THAT AT THAT TIME ( JANUARY 1943) THE OFFICER HAD COMPLETED MORE THAN TWELVE YEARS' SERVICE FOR LONGEVITY AND PERIOD PAY PURPOSES AND, SINCE UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, THEN IN EFFECT, THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT WITH OTHER TEN YEARS' SERVICE WERE THE SAME AS THOSE OF A CAPTAIN WITH THE SAME LENGTH OF SERVICE, IT IS POSSIBLE THAT THE FINANCE OFFICER AT CAMP CROFT INTENDED TO INFORM JONES THAT THE REVERSION TO THE GRADE OF FIRST LIEUTENANT WOULD MAKE NO DIFFERENCE IN HIS CURRENT PAY ACCOUNTS AND THE PURPORT OF THIS COULD HAVE BEEN MISUNDERSTOOD BY JONES. HIS CONTINUED OCCUPANCY OF THE OFFICE OF CAPTAIN DID NOT INVOLVE ANY INCREASE IN HIS PAY AND ALLOWANCES UNTIL MORE THAN FOUR YEARS LATER ( MAY 1947), WHEN HE COMPLETED SEVENTEEN YEARS' SERVICE. WHEN HE FIRST BEGAN DRAWING INCREASED PAY AS A CAPTAIN IN 1947 HE HAD SERVED AS A CAPTAIN ON ACTIVE DUTY FOR MORE THAN FOUR YEARS THROUGHOUT THE WAR, IN THE UNITED STATES AND OVERSEAS, WITH THE FULL KNOWLEDGE AND ACQUIESCENCE OF THE ARMY AUTHORITIES AND ALL ORDERS AND OFFICIAL CORRESPONDENCE DURING SUCH YEARS AND THEREAFTER UNTIL JUNE 1950 SHOWED HIS GRADE AS CAPTAIN. THE ONLY QUESTION HERE INVOLVED IS WHETHER THE GOVERNMENT IS ENTITLED TO RECOVER THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A CAPTAIN AND THOSE OF A FIRST LIEUTENANT RECEIVED BY HIM WHILE SERVING AS A CAPTAIN DURING SUCH LATTER PERIOD FROM MAY 1947 TO JUNE 1950.

IT IS WELL SETTLED THAT A PERSON DISCHARGING THE DUTIES OF AN OFFICE UNDER COLOR OF AUTHORITY IS ENTITLED TO RETAIN THE PAY RECEIVED BY HIM IN GOOD FAITH AS AN OFFICER DE FACTO. UNITED STATES V. ROYER, 268 U.S. 394. FOLLOWING THAT DECISION THIS OFFICE HAS REGARDED THE RIGHT OF A PERSON TO RETAIN THE PAY OF AN OFFICER DE FACTO AS CONDITIONED UPON HIS GOOD FAITH IN DISCHARGING THE DUTIES OF THE OFFICE. 28 COMP. GEN. 514; 29 ID. 520. THAT IS TO SAY, WHILE A PERSON MAY BE AN OFFICER DE FACTO THOUGH NOT ACTING IN GOOD FAITH, HE MAY NOT RETAIN THE EMOLUMENTS RECEIVED AS A DE FACTO OFFICER IF THEY WERE NOT RECEIVED IN GOOD FAITH. WHILE THE OFFICER IN THE PRESENT CASE UNQUESTIONABLY WAS CHARGEABLE WITH THE KNOWLEDGE OF THE LIMITATION OF THE APPOINTMENT AS CAPTAIN IN THE AIR CORPS, AND HIS SELF-SERVING REPRESENTATIONS MADE IN 1950 ARE NOT SO PERSUASIVE IN THEMSELVES AS TO ESTABLISH AFFIRMATIVELY THAT HE ACTED IN GOOD FAITH, IT APPEARS NECESSARY TO CONSIDER AND EVALUATE THE OTHER FACTS IN ORDER TO DETERMINE THE GOVERNMENT'S RIGHT TO RECOVER THE ADDITIONAL EMOLUMENTS PAID TO HIM DURING THE LAST THREE YEARS HE SERVED AS A CAPTAIN. ON SUCH FACTS THE VIEW APPEARS TENABLE THAT AT LEAST DURING THE LATTER PART OF THE SEVEN YEARS THE OFFICER PERFORMED THE DUTIES OF A CAPTAIN WHEN SUCH DUTIES NOT ONLY HAD BEEN PREVIOUSLY ACQUIESCED IN BUT ACTUALLY HAD BEEN DIRECTED UNDER ORDERS OF THE WAR DEPARTMENT THROUGHOUT THE WAR, HE HAD REASONABLE GROUNDS FOR THE SUPPOSITION OR BELIEF THAT EITHER THE REVERSIONARY PROVISIONS IN THE ORDERS OF DECEMBER 7, 1942, HAD BEEN WITHOUT EFFECT OR THAT THEIR EFFECT HAD BEEN EFFACED BY THE PREVIOUSLY LONG CONTINUED OFFICIAL RECOGNITION OF HIS STATUS AS A CAPTAIN. HIS ACTING AS A CAPTAIN, PURPORTEDLY UPON THE ADVICE OF THE FINANCE OFFICER, DID NOT INCREASE HIS MONETARY REMUNERATION UNTIL ALMOST FOUR AND ONE-HALF YEARS AFTER HE IN FACT REVERTED TO THE GRADE OF FIRST LIEUTENANT, DURING WHICH TIME HE NORMALLY COULD HAVE ANTICIPATED A PROMOTION TO CAPTAIN IF HE REMAINED IN ACTIVE SERVICE. A PROBABLE EFFECT OF HIS OCCUPYING THE OFFICE OF CAPTAIN WOULD BE TO PREJUDICE HIS ACTUAL PROMOTION TO THAT OFFICE, SINCE IF HE ALREADY WERE A CAPTAIN THERE WOULD BE NO OCCASION TO PROMOTE HIM TO CAPTAIN. DURING THAT FOUR AND ONE-HALF YEAR PERIOD, AS WELL AS THE THREE SUBSEQUENT YEARS, HE OCCUPIED THE OFFICE OF CAPTAIN AND WAS REGARDED AS A CAPTAIN BY THE ARMY AUTHORITIES, HIS TRUE GRADE BEING DISCOVERED ONLY IN JUNE 1950, WHEN HE WAS BEING CONSIDERED FOR PROMOTION TO THE GRADE OF MAJOR. SUCH A LONG AND CONTINUING UNCHALLENGED OCCUPANCY OF THE OFFICE OF CAPTAIN UNDER CIRCUMSTANCES NATURALLY WOULD TEND TO DISPEL ANY DOUBTS HE INITIALLY MAY HAVE ENTERTAINED AS TO HIS RIGHT TO OCCUPY SUCH OFFICE AND SUPPORT A GROWING CONVICTION THAT HE RIGHTFULLY HELD THAT OFFICE. WHILE THE MATTER IS NOT FREE FROM DOUBT, I THINK THE CONCLUSION IS WARRANTED, PARTICULARLY IN VIEW OF THE LONG ACQUIESCENCE OF THE ARMY AUTHORITIES AT ALL TIMES AFTER JANUARY 1943, THAT THE RECORD DOES NOT SUFFICIENTLY ESTABLISH THAT JONES OCCUPIED THE OFFICE OF CAPTAIN DURING THE PERIOD FROM MAY 1947 TO JUNE 1950 WITH SUCH LACK OF GOOD FAITH THAT THE GOVERNMENT IS ENTITLED TO RECOVER FROM HIM THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND THOSE OF A CAPTAIN RECEIVED BY HIM FOR THAT PERIOD.

THE QUESTION PRESENTED AS TO WHETHER THE OFFICER MAY RETAIN THE PAY AND ALLOWANCES SO RECEIVED IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE.