B-127798, JUN. 8, 1956

B-127798: Jun 8, 1956

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MCGARRAH: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 22 AND APRIL 26. WHICH WILL BE CONSIDERED AS REQUESTING THE REVIEW OF OUR SETTLEMENT OF APRIL 20. PROVIDED THAT THE CITED ORDERS OF SEPTEMBER 2 WERE AMENDED. SUCH ORDERS APPARENTLY WERE DELIVERED TO YOU ON SEPTEMBER 13 AND YOU SIGNED OUT AT YOUR STATION THE FOLLOWING DAY. YOU SAY THAT THE CIVIL OFFICE ACCEPTED BY YOU WAS THAT OF NOTARY IN AND FOR THE COUNTY OF SALINE. THAT THE EFFECTIVE DATE OF YOUR APPOINTMENT TO THAT OFFICE WAS AUGUST 18. YOU INDICATE THAT NONE OF THE DUTIES OF YOUR CIVIL OFFICE WERE PERFORMED PRIOR TO SEPTEMBER 14. IT IS PRESUMED. THAT THE OFFICE ACTUALLY WAS ACCEPTED ON AUGUST 18. THAT YOU WERE QUALIFIED TO PERFORM THE DUTIES AND FUNCTIONS OF THE OFFICE FROM AND AFTER THAT DATE.

B-127798, JUN. 8, 1956

TO MR. JAMES E. MCGARRAH:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 22 AND APRIL 26, 1956, REFERRED HERE BY HONORABLE BRUCE ALGER, WHICH WILL BE CONSIDERED AS REQUESTING THE REVIEW OF OUR SETTLEMENT OF APRIL 20, 1956, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES AS A COMMISSIONED OFFICER OF THE UNITED STATES AIR FORCE FOR THE PERIOD AUGUST 19 TO SEPTEMBER 14, 1954.

PARAGRAPH 13 OF SPECIAL ORDERS NO. 171, DEPARTMENT OF THE AIR FORCE, DATED SEPTEMBER 2, 1954, CONFIRMED VERBAL ORDERS OF THE SECRETARY OF THE AIR FORCE ANNOUNCING THE VACATION OF YOUR APPOINTMENT AS FIRST LIEUTENANT, REGULAR AIR FORCE, AND YOUR HONORABLE DISCHARGE EFFECTIVE AUGUST 18, 1954, UNDER THE PROVISIONS OF SECTION 1222, REVISED STATUTES, BY REASON OF ACCEPTANCE OF A CIVIL OFFICE. PARAGRAPH 21, SPECIAL ORDERS NO. 177, DEPARTMENT OF THE AIR FORCE, DATED SEPTEMBER 13, 1954, PROVIDED THAT THE CITED ORDERS OF SEPTEMBER 2 WERE AMENDED, BY WAY OF CORRECTION OF AN ADMINISTRATIVE ERROR, TO DELETE REFERENCE TO YOUR HONORABLE DISCHARGE FROM THE SERVICE. SUCH ORDERS APPARENTLY WERE DELIVERED TO YOU ON SEPTEMBER 13 AND YOU SIGNED OUT AT YOUR STATION THE FOLLOWING DAY. IN LETTER DATED MAY 20, 1956, YOU SAY THAT THE CIVIL OFFICE ACCEPTED BY YOU WAS THAT OF NOTARY IN AND FOR THE COUNTY OF SALINE, STATE OF KANSAS, AND THAT THE EFFECTIVE DATE OF YOUR APPOINTMENT TO THAT OFFICE WAS AUGUST 18, 1954. YOU INDICATE THAT NONE OF THE DUTIES OF YOUR CIVIL OFFICE WERE PERFORMED PRIOR TO SEPTEMBER 14, EITHER WITH OR WITHOUT PAY. IT IS PRESUMED, HOWEVER, THAT THE OFFICE ACTUALLY WAS ACCEPTED ON AUGUST 18, 1954, AND THAT YOU WERE QUALIFIED TO PERFORM THE DUTIES AND FUNCTIONS OF THE OFFICE FROM AND AFTER THAT DATE.

SECTION 1222, REVISED STATUTES, UPON WHICH THE VACATION OF COMMISSION ANNOUNCED IN YOUR ORDERS WAS BASED, PROVIDES AS FOLLOWS:

"NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED.'

THE PURPOSE OF SUCH PROVISION IS TO PREVENT, BY INVOKING A FORFEITURE OF MILITARY COMMISSION FOR VIOLATION, THE OCCUPANCY CONCURRENTLY OF CIVIL AND MILITARY OFFICES. THE STATUTE MAKES THE POSITIONS INCOMPATIBLE AS A MATTER OF LAW, WITHOUT QUALIFICATION AND WITHOUT REGARD TO ANY SHOWING OF COMPATIBILITY IN FACT WITH RESPECT TO A PARTICULAR OFFICER AND A PARTICULAR POSITION. 25 COMP. GEN. 377, 381. CONSEQUENTLY, EVEN THOUGH IT APPEARS THAT YOU DID NOT IN FACT PERFORM THE FUNCTIONS OF NOR RECEIVE THE RENUMERATION PROVIDED FOR THE CIVIL OFFICE DURING THE PERIOD IN QUESTION, AND THAT YOU CONTINUED TO PERFORM THE DUTIES OF AN AIR FORCE OFFICER THROUGHOUT THE PERIOD, THE FACT THAT YOU APPARENTLY ACCEPTED AND QUALIFIED FOR THE CIVIL OFFICE ON AUGUST 18 REQUIRES THE CONCLUSION THAT BY THAT ACT AND ON THAT DAY YOU CEASED TO BE AN OFFICER OF THE AIR FORCE BY VIRTUE OF THE QUOTED PROVISION OF SECTION 1222 OF THE REVISED STATUTES. IT MUST BE HELD, THEREFORE, THAT INASMUCH AS YOU WERE NOT AN OFFICER OF THE AIR FORCE DURING THE PERIOD COVERED BY YOUR CLAIM NO LEGAL BASIS EXISTS FOR THE PAYMENT TO YOU OF THE CLAIMED PAY AND ALLOWANCES AUTHORIZED FOR COMMISSIONED OFFICERS OF THE MILITARY FORCES WHILE IN AN ACTIVE DUTY STATUS. ACCORDINGLY, THE SETTLEMENT OF APRIL 20, 1956, MUST BE SUSTAINED.

RESPECTING YOUR CLAIM FOR PER DIEM FOR THE PERIOD OF TRAVEL REQUIRED IN PROCEEDING FROM SALINA, KANSAS, TO ANNAPOLIS, MARYLAND, THE PLACE OF ACCEPTANCE OF APPOINTMENT, YOU ARE ADVISED THAT THE 6 CENTS PER MILE PAID TO YOU FOR THAT DISTANCE AT THE TIME OF YOUR SEPARATION IS AN ALLOWANCE AUTHORIZED TO COVER ALL TRANSPORTATION AND SUBSISTENCE EXPENSES OF TRAVEL. THEREFORE, THERE IS NO AUTHORITY FOR THE PAYMENT OF A PER DIEM ALLOWANCE IN ADDITION TO THE MILEAGE ALLOWANCE YOU RECEIVED. SEE IN THAT CONNECTION, PARAGRAPH 4151 OF THE JOINT TRAVEL REGULATIONS.

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