B-122867, JUL. 13, 1955

B-122867: Jul 13, 1955

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WELLS: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10. THE RECORD SHOWS THAT YOU WERE APPOINTED A SECOND LIEUTENANT IN THE U.S. YOU WERE HONORABLY DISCHARGED FROM YOUR ENLISTED STATUS IN THE U.S. YOU WERE GIVEN A RECESS APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE. YOU WERE PROMOTED ON SEPTEMBER 6. THEREAFTER YOUR BASIC MILITARY STATUS WAS THAT OF SECOND LIEUTENANT IN THE REGULAR AIR FORCE HELD UNDER A RECESS APPOINTMENT WHILE SERVING CONCURRENTLY IN THE HIGHER TEMPORARY GRADE OF FIRST LIEUTENANT IN THE AIR FORCE OF THE UNITED STATES. YOUR RECESS APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE WAS CONFIRMED BY THE UNITED STATES SENATE ON MARCH 2. IT IS SHOWN THAT YOU DECLINED TO EXECUTE SUCH OATH OF OFFICE.

B-122867, JUL. 13, 1955

TO MR. LAURENCE D. WELLS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1955, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED DECEMBER 1, 1954, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES BELIEVED TO BE DUE YOU AS A COMMISSIONED OFFICER OF THE UNITED STATES AIR FORCE FOR THE PERIOD FROM AUGUST 4, 1953, TO SEPTEMBER 9, 1953, INCLUSIVE.

THE RECORD SHOWS THAT YOU WERE APPOINTED A SECOND LIEUTENANT IN THE U.S. AIR FORCE RESERVE ON MAY 23, 1950, WHILE SERVING AS AN ENLISTED MAN IN THE U.S. AIR FORCE. YOU WERE HONORABLY DISCHARGED FROM YOUR ENLISTED STATUS IN THE U.S. AIR FORCE ON FEBRUARY 13, 1951, TO ENTER ON EXTENDED ACTIVE DUTY THE NEXT DAY, FEBRUARY 14, 1951, UNDER AN APPOINTMENT AS SECOND LIEUTENANT IN THE AIR FORCE OF THE UNITED STATES. ON AUGUST 27, 1952, YOU WERE GIVEN A RECESS APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE; YOU WERE PROMOTED ON SEPTEMBER 6, 1952, TO THE TEMPORARY GRADE OF FIRST LIEUTENANT IN THE AIR FORCE OF THE UNITED STATES AND ON OCTOBER 13, 1952, YOU ACCEPTED THE RECESS APPOINTMENT ABOVE REFERRED TO, THEREBY VACATING YOUR COMMISSION AS SECOND LIEUTENANT IN THE U.S. AIR FORCE RESERVE. THEREAFTER YOUR BASIC MILITARY STATUS WAS THAT OF SECOND LIEUTENANT IN THE REGULAR AIR FORCE HELD UNDER A RECESS APPOINTMENT WHILE SERVING CONCURRENTLY IN THE HIGHER TEMPORARY GRADE OF FIRST LIEUTENANT IN THE AIR FORCE OF THE UNITED STATES, BY VIRTUE OF YOUR TEMPORARY PROMOTION OF SEPTEMBER 6, 1952.

YOUR RECESS APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE WAS CONFIRMED BY THE UNITED STATES SENATE ON MARCH 2, 1953, AND ON THAT DATE, HEADQUARTERS, U.S. AIR FORCE, IN A MESSAGE ADDRESSED TO YOUR COMMANDING OFFICER IN THE FAR EAST COMMAND DIRECTED THAT YOU EXECUTE A NEW OATH OF OFFICE IN ORDER TO FULLY VEST IN YOU THE PERMANENT RECESS APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE. IT IS SHOWN THAT YOU DECLINED TO EXECUTE SUCH OATH OF OFFICE. THEREAFTER, AS A RESULT OF YOUR SPECIFIC REQUEST TO BE RELEASED FROM ACTIVE MILITARY SERVICE, COUPLED WITH THE ACCEPTANCE ON JULY 13, 1953, BY THE SECRETARY OF THE AIR FORCE OF YOUR RESIGNATION, YOU DEPARTED FROM THE FAR EASTCOMMAND ON AUGUST 2, 1953, BY SURFACE TRANSPORTATION ARRIVING AT PARKS AIR FORCE BASE, CALIFORNIA, ON OR ABOUT AUGUST 27, 1953. IT IS STATED THAT YOU CLEARED PARKS AIR FORCE BASE ON SEPTEMBER 9, 1953.

THE DEPARTMENT OF THE AIR FORCE ALSO HAS ADVISED THIS OFFICE THAT YOUR APPLICATION OF OCTOBER 8, 1953, REQUESTING THAT YOUR MILITARY RECORDS BE CORRECTED TO SHOW THAT YOU WERE SEPARATED FROM THE MILITARY SERVICE ON SEPTEMBER 9, 1953, RATHER THAN ON AUGUST 3, 1953, WAS DENIED DECEMBER 18, 1953, BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS. THE DEPARTMENT OF THE AIR FORCE FURTHER REPORTS THAT YOU HAD NO MILITARY STATUS IN THE AIR FORCE AFTER AUGUST 3, 1953.

ARTICLE II, SECTION 2, CLAUSE 3 OF THE CONSTITUTION OF THE UNITED STATES PROVIDES THAT:

"THE PRESIDENT SHALL HAVE POWER TO FILL UP ALL VACANCIES THAT MAY HAPPEN DURING THE RECESS OF THE SENATE, BY GRANTING COMMISSIONS WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SESSION.'

THUS, UNDER THE PRECISE LANGUAGE OF THE CONSTITUTION YOUR RECESS APPOINTMENT EXPIRED ON AUGUST 3, 1953, THE DATE OF TERMINATION OF THE "NEXT SESSION" OF THE CONGRESS. HENCE, INASMUCH AS YOU EXPRESSLY DECLINED TO EXECUTE THE REQUIRED OATH OF OFFICE UNDER SUCH APPOINTMENT AND SINCE IT IS REPORTED BY THE DEPARTMENT OF THE AIR FORCE THAT YOU HELD NO OTHER APPOINTMENT OF ANY NATURE IN THE AIR FORCE, YOU CEASED BY OPERATION OF LAW TO BE AN OFFICER AND A MEMBER OF THAT SERVICE ON AUGUST 3, 1953. CONSEQUENTLY, SINCE YOU WERE NOT A MEMBER OF THE AIR FORCE AFTER AUGUST 3, 1953, NO LEGAL BASIS EXISTS FOR THE PAYMENT TO YOU FOR ANY PERIOD SUBSEQUENT TO AUGUST 3, 1953, OF ANY PAY AND ALLOWANCES AS PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, FOR ,MEMBERS" OF THE UNIFORMED SERVICES. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 1, 1954, PROPERLY DISALLOWED YOUR CLAIM AND UPON REVIEW IS SUSTAINED.

THE SEVERAL QUESTIONS (NUMBERED 1 THROUGH 9, INCLUSIVE) PRESENTED IN YOUR LETTER PERTAIN TO MATTERS CONCERNING THE ADMINISTRATION AND FUNCTIONS OF THE DEPARTMENT OF THE AIR FORCE. SUCH MATTERS ARE NOT WITHIN THE JURISDICTION OF THIS OFFICE.

CONCERNING YOUR INQUIRY AS TO WHAT FURTHER RECOURSE IS AVAILABLE TO YOU, IT MAY BE STATED THAT THE ACTION TAKEN HERE DOES NOT PRECLUDE A JUDICIAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION OF YOUR RIGHT TO THE PAY AND ALLOWANCES CLAIMED BY YOU.