B-120608, SEPTEMBER 21, 1954, 34 COMP. GEN. 132

B-120608: Sep 21, 1954

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PAY - DE FACTO STATUS - RETENTION OF PAY ARMY RESERVE CAPTAIN WHO ACCEPTED AN APPOINTMENT IN THE REGULAR ARMY AS A SECOND LIEUTENANT UNDER ORDERS WHICH PROVIDED IN CLEAR AND UNMISTAKABLE LANGUAGE THAT A RESERVE APPOINTMENT IN ANY COMPONENT OF THE ARMED FORCES WOULD AUTOMATICALLY BE TERMINATED ON DATE OF EXECUTION OF THE OATH OF OFFICE MAY NOT RETAINED PAY AND ALLOWANCES RECEIVED IN GRADE OF CAPTAIN FROM DATE OF ACCEPTANCE OF COMMISSION AS SECOND LIEUTENANT UPON BASIS THAT ORDERS WERE ADDRESSED TO HIM AS CAPTAIN AND AFFORDED JUSTIFICATION FOR ASSUMING THAT HE HAD BEEN PROMOTED TO SUCH A RANK. A DE FACTO OFFICER IS ONE WHO SERVES UNDER AN APPOINTMENT WHICH HE WAS JUSTIFIED IN BELIEVING WAS COMPETENT TO INVEST HIM WITH SUCH OFFICE SO THAT A CAPTAIN IN THE RESERVES WHO CONTINUED TO RECEIVE THE PAY AND ALLOWANCES OF THAT GRADE AFTER HE HAD ACCEPTED AN APPOINTMENT IN THE REGULAR ARMY UNDER ORDERS EXPRESSLY PROVIDING THAT ACCEPTANCE OF APPOINTMENT AS A SECOND LIEUTENANT WOULD AUTOMATICALLY TERMINATE HIS APPOINTMENT IN THE RESERVES MAY NOT BE CONSIDERED AS HAVING SERVED IN GOOD FAITH ON ACTIVE DUTY IN THE GRADE OF CAPTAIN AND ENTITLED TO RETAIN SUCH PAYMENTS.

B-120608, SEPTEMBER 21, 1954, 34 COMP. GEN. 132

PAY - DE FACTO STATUS - RETENTION OF PAY ARMY RESERVE CAPTAIN WHO ACCEPTED AN APPOINTMENT IN THE REGULAR ARMY AS A SECOND LIEUTENANT UNDER ORDERS WHICH PROVIDED IN CLEAR AND UNMISTAKABLE LANGUAGE THAT A RESERVE APPOINTMENT IN ANY COMPONENT OF THE ARMED FORCES WOULD AUTOMATICALLY BE TERMINATED ON DATE OF EXECUTION OF THE OATH OF OFFICE MAY NOT RETAINED PAY AND ALLOWANCES RECEIVED IN GRADE OF CAPTAIN FROM DATE OF ACCEPTANCE OF COMMISSION AS SECOND LIEUTENANT UPON BASIS THAT ORDERS WERE ADDRESSED TO HIM AS CAPTAIN AND AFFORDED JUSTIFICATION FOR ASSUMING THAT HE HAD BEEN PROMOTED TO SUCH A RANK. A DE FACTO OFFICER IS ONE WHO SERVES UNDER AN APPOINTMENT WHICH HE WAS JUSTIFIED IN BELIEVING WAS COMPETENT TO INVEST HIM WITH SUCH OFFICE SO THAT A CAPTAIN IN THE RESERVES WHO CONTINUED TO RECEIVE THE PAY AND ALLOWANCES OF THAT GRADE AFTER HE HAD ACCEPTED AN APPOINTMENT IN THE REGULAR ARMY UNDER ORDERS EXPRESSLY PROVIDING THAT ACCEPTANCE OF APPOINTMENT AS A SECOND LIEUTENANT WOULD AUTOMATICALLY TERMINATE HIS APPOINTMENT IN THE RESERVES MAY NOT BE CONSIDERED AS HAVING SERVED IN GOOD FAITH ON ACTIVE DUTY IN THE GRADE OF CAPTAIN AND ENTITLED TO RETAIN SUCH PAYMENTS.

ACTING COMPTROLLER GENERAL WEITZEL TO SECRETARY OF THE ARMY, SEPTEMBER 21, 1954:

REFERENCE IS MADE TO YOUR LETTER OF JULY 1, 1954, REQUESTING A DECISION WHETHER CAPTAIN WILLIAM S. ROONEY MAY BE CONSIDERED TO HAVE SERVED IN GOOD FAITH ON ACTIVE DUTY IN THE GRADE OF CAPTAIN SO AS TO BE ENTITLED TO RETAIN ANY PAY AND ALLOWANCES RECEIVED IN THAT GRADE FROM THE DATE HE EXECUTED OATH OF OFFICE AS A SECOND LIEUTENANT, REGULAR ARMY, FEBRUARY 17, 1950, TO THE DATE HE WAS PROMOTED TO CAPTAIN IN THE ARMY OF THE UNITED STATES ON JANUARY 26, 1954, OR WHETHER HE WILL BE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN THE GRADE OF CAPTAIN AND SECOND LIEUTENANT FOR THE PERIOD FEBRUARY 17, 1950, TO JULY 31, 1951, AND BETWEEN THE GRADE OF CAPTAIN AND FIRST LIEUTENANT FOR THE PERIOD AUGUST 1, 1951, TO JANUARY 26, 1954.

A RESUME OF THE FACTS IN THE CASE FURNISHED FROM THE RECORDS OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, SET FORTH IN THE "1DISCUSSION" SUBMITTED WITH YOUR LETTER, IS AS FOLLOWS:

WILLIAM S. ROONEY WAS ORDERED TO ACTIVE DUTY ON 31 JULY 1948 AS A CAPTAIN, MSC, ORC, PURSUANT TO WAR DEPARTMENT ORDERS NO. 145, DATED 21 JULY 1948 FOR COMPETITIVE TOUR FOR THE PURPOSE OF OBTAINING A REGULAR ARMY COMMISSION. THE GRADE OF CAPTAIN WAS VACATED UPON HIS ACCEPTANCE OF APPOINTMENT AS SECOND LIEUTENANT, REGULAR ARMY,ON 17 FEBRUARY 1950. PRIOR TO APRIL 1951, REGULAR ARMY APPOINTMENT ORDERS READ TO THE EFFECT THAT A HIGHER AUS GRADE WOULD NOT BE AFFECTED UPON ACCEPTANCE OF REGULAR ARMY APPOINTMENT BUT THAT A RESERVE APPOINTMENT IN ANY COMPONENT OF THE ARMED FORCES OF THE UNITED STATES WOULD BE AUTOMATICALLY TERMINATED ON THE DATE THE OFFICER EXECUTED OATH OF OFFICE. SINCE WILLIAM S. ROONEY DID NOT HOLD AN AUS COMMISSION HE SHOULD HAVE REVERTED TO THE LOWER GRADE OF SECOND LIEUTENANT, REGULAR ARMY. HIS STATEMENT AS TO HIS REASONS FOR CONTINUING TO SERVE IN THE GRADE OF CAPTAIN, READS:

"1. IN COMPLIANCE WITH PARAGRAPH 2, BASIC COMMUNICATION, THE FOLLOWING STATEMENT OF REASONS WHY I HAVE SERVED AS A CAPTAIN FROM 17 FEBRUARY 1950 TO DATE IS SUBMITTED.

"2. I WAS APPOINTED A CAPTAIN, ARMS RESERVE ON 9 JUNE 1948.

"3. UPON ENTRY INTO A COMPETITIVE TOUR FOR APPOINTMENT INTO THE REGULAR ARMY, I WAS TOLD THAT UPON RECEIVING A COMMISSION IN THE REGULAR ARMY, IT WOULD HAVE NO EFFECT ON THE GRADE THAT I HELD AS A TEMPORARY CAPTAIN. PARAGRAPH 10, AR 605-20 DATED 2 NOVEMBER 1949, IS QUOTED IN PART AS FOLLOWS:"1ACCEPTANCE OF APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR ARMY WILL NOT, OF ITSELF, AFFECT A HIGHER TEMPORARY GRADE IN WHICH OFFICER ON EXTENDED ACTIVE DUTY IS SERVING AT THAT TIME * * *.' AS A FURTHER INDICATION OF WHAT THE POLICY OF THE ARMY IS IN REGARDS TO HIGHER TEMPORARY GRADES, CHANGE 1 TO AR 605-20, DATED 22 JUNE 1951, IS QUOTED: "* * * HIGHER TEMPORARY GRADES HELD IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WILL BE CONTINUED AND THOSE HELD IN THE ORGANIZED RESERVE CORPS AND NATIONAL GUARD OF THE UNITED STATES WILL BE CONVERTED TO ARMY OF THE UNITED STATES WITHOUT COMPONENT. * * *.'

"4. REFERENCE IS MADE TO PARAGRAPH 64, SPECIAL ORDERS 226, DEPARTMENT OF THE ARMY, DATED 18 NOVEMBER 1949, WHICH APPOINTED ME AS A 2D LIEUTENANT OF THE MSC, RA. THAT PROGRAM, IN PART, STATES THAT "1ACCEPTANCE OF THIS APPOINTMENT WILL NOT AFFECT A HIGHER ARMY OF THE UNITED STATES GRADE UNTIL SUCH GRADE IS SUBJECT TO GENERAL GRADE REDUCTION PROGRAM.'

"5. THE FOLLOWING DEPARTMENT OF ARMY SPECIAL ORDERS ARE QUOTED:

"A.PAR. 8, SO 101, D/A, DATED 24 MAY 1950,"1CAPT. WILLIAM S. ROONEY, 1060892, MSC.'

"B. PAR. 8, SO 162, D/A, DATED AUGUST 1950,"1CAPT. WILLIAM S. ROONEY, 1060892, MSC. RA.'

"C. LTR. O., CONFIRMATORY ORDERS, D/A, DATED 10 SEPTEMBER 1952,"1CAPT. WILLIAM S. ROONEY, 1060892, MSC.'

"D. AR. 8, SO 57, D/A, DATED 25 MARCH 1953,"1CAPT. WILLIAM S. ROONEY, 1060892, MSC.'

"6. BASED ON THE QUOTED ARMY REGULATIONS AND SPECIAL ORDERS, IT WAS MY UNDERSTANDING, AND IS MY UNDERSTANDING, THAT, THOUGH I WAS APPOINTED IN THE REGULAR ARMY IN THE GRADE OF 2D LIEUTENANT, THIS WOULD NOT TERMINATE MY TEMPORARY GRADE OF CAPTAIN. FURTHER, IT IS MY BELIEF THAT, SHOULD ANY FURTHER ACTION BE REQUIRED, SUCH ACTION SHOULD HAVE BEEN TAKEN BY THE DEPARTMENT OF THE ARMY.

DEPARTMENT OF THE ARMY SPECIAL ORDERS CONCERNING WILLIAM S. ROONEY CONTINUOUSLY ADDRESSED HIM AS " CAPTAIN WILLIAM S. ROONEY" SINCE 21 JULY 1948.'

PARAGRAPH 64, SPECIAL ORDERS NO. 226, DEPARTMENT OF THE ARMY, DATED NOVEMBER 18, 1949, APPOINTING WILLIAM S. ROONEY A SECOND LIEUTENANT IN THE REGULAR ARMY, PROVIDED AS FOLLOWS:

64. DP ANNOUNCEMENT IS MADE OF THE RECESS APMT AS 2D LT. IN THE MSC RA OF THE US EFF 2 NOV. 1949 OF THE FOL-NAMED OFF SUBJECT TO PHYSICAL QUAL AS DETERMINED BY FINAL TYPE PHYSICAL EXAM AS PRESCRIBED IN AR 40-105. DATE OF RANK IS INDICATED BELOW. ACPT OF THIS APMT WILL NOT EFFECT A HIGHER AUS GRADE UNTIL SUCH GRADE IS SUBJECT TO GEN GRADE REDUCTION PROGRAM. OFF WILL REMAIN ASGD TO PRESENT DY STA AND ORGANIZATION. RES APMT IN ANY COMPONENT OF THE ARMED FORCES OF THE US WILL BE AUTOMATICALLY TERMINATED ON DATE OFF EXECUTES OATH OF OFFICE. EDCMR WILL BE DATE OF ACPT OF THIS APMT.

SINCE THE ORDERS PROVIDED IN CLEAR AND UNMISTAKABLE LANGUAGE THAT A RESERVE APPOINTMENT IN ANY COMPONENT OF THE ARMED FORCES OF THE UNITED STATES WOULD BE AUTOMATICALLY TERMINATED ON THE DATE THE OFFICER TOOK THE OATH OF OFFICE AND SINCE HE ACCEPTED HIS APPOINTMENT AS SECOND LIEUTENANT, REGULAR ARMY, ON FEBRUARY 17, 1950, THERE SHOULD HAVE BEEN NO DOUBT ON HIS PART THAT HIS COMMISSION AS A RESERVE OFFICER HAD BEEN TERMINATED. AND IF, AS STATED BY HIM, HE WAS PREVIOUSLY TOLD THAT ,UPON RECEIVING A COMMISSION IN THE REGULAR ARMY, IT WOULD HAVE NO EFFECT ON THE GRADE THAT I HELD AS A TEMPORARY CAPTAIN," THE ORDERS OF NOVEMBER 18, 1949, SHOULD AT LEAST HAVE CREATED SUFFICIENT DOUBT IN HIS MIND TO CAUSE HIM TO VERIFY HIS STATUS. THERE APPEARS NO CONFLICT BETWEEN SPECIAL ORDERS NO. 226 AND PARAGRAPH 10, AR 605-20 (25), DATED NOVEMBER 2, 1949, SINCE SUCH REGULATIONS MERELY PROVIDED THAT THE ACCEPTANCE OF AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR ARMY WOULD NOT, OF ITSELF,"AFFECT A HIGHER TEMPORARY GRADE IN WHICH OFFICER ON EXTENDED ACTIVE DUTY IS SERVING AT THE TIME.' AND DID NOT HAVE ANY APPLICATION WHERE THE ORDERS OF APPOINTMENT PROVIDED OTHERWISE, AS IN THIS CASE.

IT WILL BE NOTED THAT CAPTAIN ROONEY REFERS TO CHANGE 1 TO AR 605-20 (25), DATED JUNE 22, 1951, WHICH MODIFIED PARAGRAPH 10 OF THE REGULATIONS WHICH HAD BEEN IN EFFECT SINCE NOVEMBER 2, 1949, AND PROVIDED WITH RESPECT TO APPOINTMENTS IN THE REGULAR ARMY THAT HIGHER TEMPORARY GRADES HELD IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WOULD BE CONTINUED AND THOSE HELD IN THE ORGANIZED RESERVE CORPS WOULD BE CONVERTED TO ARMY OF THE UNITED STATES WITHOUT COMPONENT. THIS REGULATION WAS PROMULGATED MORE THAN 16 MONTHS AFTER CAPTAIN ROONEY ACCEPTED HIS COMMISSION IN THE REGULAR ARMY AND WAS NOT RETROACTIVE IN APPLICATION. SINCE CAPTAIN ROONEY DID NOT HOLD AN AUS COMMISSION ON FEBRUARY 17, 1950, WHEN HE ACCEPTED HIS COMMISSION IN THE REGULAR ARMY, AND SINCE, UNDER THE ORDERS APPOINTING HIM A SECOND LIEUTENANT IN THE REGULAR ARMY, HIS COMMISSION AS CAPTAIN IN THE OFFICERS' RESERVE CORPS WAS AUTOMATICALLY TERMINATED ON FEBRUARY 17, 1950, IT COULD NOT BE CONVERTED TO A COMMISSION IN THE ARMY OF THE UNITED STATES UNDER THE REGULATION DATED JUNE 22, 1951.

THE FACT THAT AFTER JULY 21, 1948, DEPARTMENT OF THE ARMY SPECIAL ORDERS ADDRESSED HIM AS " CAPTAIN WILLIAM S. ROONEY" DID NOT, OF COURSE, CHANGE HIS STATUS AND UNTIL HE ACCEPTED HIS COMMISSION OF SECOND LIEUTENANT IN THE REGULAR ARMY ON FEBRUARY 17, 1950, SUCH ORDERS WERE ENTIRELY PROPER. AS STATED IN DECISION OF MAY 26, 1947, B-65956, TO COLONEL CARL WITCHER, IT WOULD SEEM OBVIOUS THAT A MERE ADMINISTRATIVE ERROR IN REFERRING TO AN OFFICER'S RANK DOES NOT OPERATE TO CHANGE HIS STATUS IN THAT RESPECT, NOR DOES IT AFFORD ANY JURISDICTION FOR HIM TO ASSUME THAT HE HAS BEEN PROMOTED TO SUCH RANK.

IT HAS BEEN HELD THAT, FOR AN INDIVIDUAL TO BE CONSIDERED AS HAVING SERVED AS A DE FACTO OFFICER, IT MUST BE ESTABLISHED THAT HE SERVED UNDER COLOR OF AUTHORITY. UNITED STATES V. ROYER, 268 U.S. 394. THE PHRASE "COLOR OF AUTHORITY" CONTEMPLATES THAT THE INCUMBENT OF THE OFFICE SERVING PURSUANT TO AN APPOINTMENT WHICH HE WAS JUSTIFIED IN BELIEVING WAS COMPETENT TO INVEST HIM WITH SUCH OFFICE. DECISION OF MAY 20, 1949, B- 81535, TO THE SECRETARY OF THE NAVY. IN VIEW OF THE FACT THAT SPECIAL ORDERS NO. 226 EXPRESSLY INFORMED CAPTAIN ROONEY THAT ACCEPTANCE OF HIS APPOINTMENT AS A SECOND LIEUTENANT IN THE REGULAR ARMY, WHICH OCCURRED ON FEBRUARY 17, 1950, WOULD TERMINATE HIS APPOINTMENT IN THE RESERVES, HIS FAILURE TO VERIFY HIS STATUS--- IF HE HAD ANY SUBSTANTIAL REASON FOR DOUBT --- CANNOT OPERATE TO GIVE HIM THE ADVANTAGES OF A DE FACTO STATUS. THE CIRCUMSTANCES, THIS OFFICE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT CAPTAIN ROONEY SERVED IN THE CAPACITY OF CAPTAIN DURING THE PERIOD FROM FEBRUARY 17, 1950, TO JANUARY 26, 1954, IN GOOD FAITH WITHOUT ACTUAL NOTICE OR KNOWLEDGE THAT HIS APPOINTMENT AS A CAPTAIN HAD BEEN TERMINATED ON THE FORMER DATE. IT IS NOT ESTABLISHED THAT HE IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES OF THAT GRADE AND, ACCORDINGLY, HE SHOULD BE REQUIRED TO REPAY THE GOVERNMENT THE DIFFERENCE BETWEEN THE AMOUNTS SO RECEIVED AND THE PAY AND ALLOWANCES OF THE GRADES ACTUALLY HELD BY HIM IN THE REGULAR ARMY DURING THAT PERIOD.