B-125839, FEB. 9, 1956

B-125839, FEB. 9, 1956

TO MR. WILLIAM B. COBB, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 9, 1955, WHICH DISALLOWED YOUR CLAIM FOR $212.40 ALLEGED TO BE DUE YOU BY VIRTUE OF ATTENDANCE AT AND PARTICIPATION IN TEN DRILL PERIODS IN OCTOBER, NOVEMBER AND DECEMBER 1953, AS A MEMBER OF THE STAFF AND FACULTY OF THE HONOLULU UNITED STATES RESERVE SCHOOL IN YOUR CAPACITY AS HEAD OF THE JUDGE ADVOCATE GENERAL'S CORPS BRANCH IN THAT SCHOOL. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT SINCE YOUR APPOINTMENT AS A RESERVE OFFICER IN THE JUDGE ADVOCATE GENERAL'S CORPS EXPIRED BY OPERATION OF LAW ON APRIL 1, 1953, YOU WERE NOT AN OFFICER DE JURE DURING THE PERIOD INVOLVED.

YOU SAY THAT AT NO TIME WERE YOU OR ANY OF YOUR SUPERIORS ADVISED THAT YOUR COMMISSION, ACCEPTED NOVEMBER 15, 1945, HAD EXPIRED BY OPERATION OF LAW ON APRIL 1, 1953, OR AT ANY OTHER TIME AND YOU CLAIMED THAT YOU HAD EVERY REASON TO BELIEVE THAT THE ORDERS CALLING YOU TO ACTIVE DUTY DURING THE PERIOD INVOLVED WERE VALID AND ENFORCEABLE.

SECTION 37 OF THE ACT OF JUNE 3, 1916, 39 STAT. 189, AS AMENDED, 10 U.S.C. 358, PROVIDED, AMONG OTHER THINGS, THAT APPOINTMENT IN EVERY CASE IN THE OFFICER'S RESERVE CORPS SHOULD BE FOR A PERIOD OF FIVE YEARS, BUT THAT AN APPOINTMENT IN FORCE AT THE OUTBREAK OF WAR SHOULD CONTINUE IN FORCE UNTIL SIX MONTHS AFTER ITS TERMINATION. SECTION 127A OF THE ACT OF JUNE 3, 1916, AS ADDED BY SECTION 51 OF THE ACT OF JUNE 4, 1920, 41 STAT. 785, AND AMENDED BY SECTION 20 OF THE ACT OF JUNE 15, 1933, 48 STAT. 161, 10 U.S.C. 513, PROVIDED THAT AN APPOINTMENT, OTHER THAN THAT OF A MEMBER OF THE REGULAR ARMY MADE IN TIME OF WAR, SHOULD CONTINUE UNTIL SIX MONTHS AFTER ITS TERMINATION. SEE MILEY V. LOVETT, 193 F.2D 712.

THE ACT OF JULY 3, 1952, 66 STAT. 330, PROVIDED THAT NOTWITHSTANDING THE TERMINATION ON APRIL 28, 1952, OF THE EXISTENCE OF A STATE OF WAR WITH JAPAN, DECLARED DECEMBER 8, 1941, AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND ON MAY 27, 1941, AND NOTWITHSTANDING ANY PROCLAMATION OF PEACE WITH RESPECT TO SUCH WAR, THE PRESIDENT WAS AUTHORIZED TO CONTINUE IN EFFECT UNTIL AND INCLUDING APRIL 1, 1953, ALL APPOINTMENTS AS OFFICERS OF THE ARMY WHICH, UNDER THE PROVISIONS OF SECTION 37 OF THE ACT OF JUNE 3, 1916, AS AMENDED, AND SECTION 127A OF THAT ACT WAS ADDED BY THE ACT OF JUNE 4, 1920, AS AMENDED, WOULD TERMINATE AFTER APRIL 27, 1952, AND BEFORE APRIL 1, 1953. EXECUTIVE ORDER NO. 10397, DATED SEPTEMBER 25, 1952, THE PRESIDENT CONTINUED IN EFFECT ALL SUCH APPOINTMENTS UNTIL AND INCLUDING APRIL 1, 1953.

HENCE, YOUR APPOINTMENT AS A RESERVE OFFICER EXPIRED ON APRIL 1, 1953, AND SINCE THE RECORDS INDICATE THAT YOU WERE NOT GIVEN ANOTHER APPOINTMENT, (SEE SECTION 224 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 487) YOU HAD NO STATUS AS A RESERVE OFFICER AFTER APRIL 1, 1953, AND NO ORDERS SHOULD HAVE BEEN ISSUED PLACING YOU ON ACTIVE DUTY AFTER THAT DATE. ANY SUCH ORDERS AND YOUR COMPLIANCE WITH THEM WERE NOT LEGALLY SUFFICIENT TO CONFER AN OFFICE ON YOU OR TO CONSTITUTE YOU A DE JURE OFFICER. NOTHING SHORT OF A NEW APPOINTMENT COULD DO THAT. AS A PERSON MUST ESTABLISH LEGAL TITLE TO AN OFFICE BEFORE HE CAN RECOVER THE PAY OR OTHER EMOLUMENTS ATTACHING TO THE OFFICE, YOU CANNOT PROPERLY BE PAID FOR ANY SERVICES RENDERED DURING THE PERIOD INVOLVED. BENNETT V. UNITED STATES, 19 C.CLS. 379.

CONCERNING YOUR ALLEGATION THAT THE DENIAL OF YOUR CLAIM IS INEQUITABLE, IT SHOULD BE POINTED OUT THAT OUR OFFICE IS WITHOUT AUTHORITY TO SETTLE CLAIMS AGAINST THE UNITED STATES SOLELY ON MORAL OR EQUITABLE GROUNDS. ITS JURISDICTION IS RESTRICTED TO THE CONSIDERATION AND ALLOWANCE OF CLAIMS WHICH CLEARLY ARE FOR PAYMENT IN ACCORDANCE WITH THE APPLICABLE LAW OR UNDER THE TERMS OF A VALID AGREEMENT EXECUTED PURSUANT TO LAW. IN THE ABSENCE OF SUCH CONDITIONS, OUR OFFICE IS WITHOUT DISCRETION IN THE MATTER AND MUST DISALLOW THE CLAIM.