B-143325, JUL. 26, 1960

B-143325, JUL. 26, 1960

TO LIEUTENANT COLONEL R. H. MACPHERSON, FC:

THE OFFICE, CHIEF OF FINANCE (FIELD DIVISION, INDIANAPOLIS 49, INDIANA) HAS FORWARDED HERE YOUR LETTER OF MAY 31, 1960, AND ENCLOSURES(INCLUDING DA FORM 2139, MILITARY PAY VOUCHER), REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED TO THOMAS DELUCA OF AN AMOUNT REPRESENTING ACTIVE DUTY MILITARY PAY AND ALLOWANCES CLAIMED TO BE DUE AND UNPAID HIM AS OF FEBRUARY 1, 1960, THE DATE HE WAS RELEASED FROM ALL MILITARY CUSTODY PURSUANT TO A WRIT OF HABEAS CORPUS. YOUR REQUEST FOR DECISION AS ALLOCATED D.O. NUMBER 509, BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT THE SUBJECT MAN ENLISTED IN THE READY RESERVE OF THE ARMY RESERVE ON MARCH 8, 1956, AND IN ACCORDANCE WITH SECTION 262 OF THE ARMED FORCES RESERVE ACT OF 1952 (ADDED BY SECTION 2 (I) OF THE ACT OF AUGUST 9, 1955, 69 STAT. 600, 50 U.S.C. 1013) HE PERFORMED AN INITIAL 6-MONTH PERIOD OF ACTIVE DUTY FOR TRAINING. DURING THE BALANCE OF HIS 8-YEAR TERM OF SERVICE UNDER SUCH ENLISTMENT HE WAS OBLIGATED TO PARTICIPATE SATISFACTORILY IN THE TRAINING DUTY PRESCRIBED FOR MEMBERS OF THE READY RESERVE, INCLUDING SCHEDULED DRILLS AND ACTIVE DUTY TRAINING PERIODS. THE RECORD INDICATES THAT DELUCA FAILED TO MEET THE TRAINING DUTY REQUIREMENTS PRESCRIBED AND THAT HE WAS ORDERED TO PERFORM 45 DAYS OF ADDITIONAL ACTIVE DUTY FOR TRAINING. THIS ADDITIONAL ACTIVE DUTY FOR TRAINING WAS PERFORMED BY HIM DURING THE PERIOD DECEMBER 17, 1958, TO JANUARY 31, 1959. SHORTLY THEREAFTER AND DUE TO HIS CONTINUING FAILURE TO MEET THE PRESCRIBED TRAINING DUTY REQUIREMENTS HE WAS REPORTED TO HIS LOCAL SELECTIVE SERVICE DRAFT BOARD FOR PRIORITY INDUCTION AS PROVIDED IN 50 U.S.C. APP. 456 (C) (2) (E). IT IS STATED THAT HE WAS DISCHARGED FROM THE ARMY RESERVE ON MAY 13, 1959, FOR THE PURPOSE OF BEING INDUCTED THE FOLLOWING DAY, MAY 14, 1959, INTO THE ARMY OF THE UNITED STATES.

ON JANUARY 30, 1960, THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK GRANTED A WRIT OF HABEAS CORPUS "IN THE MATTER OF THE APPLICATION OF THOMAS DELUCA FOR A WRIT OF HABEAS CORPUS TO INQUIRE INTO THE CAUSE OF DETENTION OF THOMAS DELUCA: 60 CIV. 136" AND DIRECTED THAT "PETITIONER BE RELEASED FROM CUSTODY.' THE RECORD INDICATES THAT THE SUBJECT MAN WAS RELEASED FROM ALL ARMY CUSTODY ON FEBRUARY 1, 1960, AND THE VOUCHER SUBMITTED WITH YOUR LETTER CONSTITUTES HIS CLAIM FOR THE NET AMOUNT OF MILITARY ACTIVE DUTY PAY AND ALLOWANCES ALLEGED TO BE DUE AND UNPAID HIM AS OF FEBRUARY 1, 1960.

AS PREVIOUSLY STATED, THE SUBJECT MAN WAS DISCHARGED FROM THE ARMY RESERVE ON MAY 13, 1959, AND INDUCTED ON MAY 14, 1959, INTO THE ARMY OF THE UNITED STATES PURSUANT TO THE PROVISIONS OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 50 U.S.C. APP. 451. THE COURT, AS DISCLOSED IN THE MEMORANDUM OPINION DATED JANUARY 30, 1960, CONSIDERED "THE VALIDITY OF PETITIONER'S REQUIRED INDUCTION INTO THE ARMY" AND FOUND THAT THE PETITIONER (DELUCA) HAD NOT BEEN FURNISHED, AS REQUIRED BY THE PROVISIONS OF ARMY REGULATIONS 135-90, A COPY OF DD FORM 44 (RESERVE UNIT COMMANDER'S REPORT TO THE SELECTIVE SERVICE DRAFT BOARD IN THE CASE OF A RESERVIST WHO FAILS TO PARTICIPATE SATISFACTORILY IN READY RESERVE UNIT TRAINING). ALSO, THE COURT STATED "THERE WAS GRAVE DOUBT AS TO THE AUTHORITY OF THE DRAFT BOARD TO REQUIRE THE INDUCTION OF PETITIONER" DUE TO THE FACT THAT THE CERTIFICATION (SEE PARAGRAPH 7F, ARMY REGULATIONS 135-90, CHANGES NO. 2, JANUARY 30, 1957) REQUIRED ON DD FORM 44--- ALL REASONABLE EFFORTS IN ACCORDANCE WITH CURRENT REGULATIONS HAVE FAILED TO INDUCE SATISFACTORY PARTICIPATION"--- HAD BEEN OMITTED BY THE UNIT COMMANDER. THE COURT, CONCLUDING THAT "AT THE PRESENT TIME, HOWEVER, PETITIONER SHOULD NOT BE IN THE ARMY AND SEEMS TO BE UNLAWFULLY INCARCERATED BECAUSE OF HIS ARMY SERVICE" GRANTED THE WRIT OF HABEAS CORPUS AND DIRECTED THE RELEASE OF DELUCA FROM ARMY CUSTODY.

IN REACHING THE ABOVE CONCLUSION THE COURT RELIES ON THE CASE OF VER MEHREN V. SIRMYER, 36 F. 2D 876, STATING THAT "WHERE AN INDIVIDUAL IS INDUCTED INTO THE ARMY WITHOUT COMPLIANCE WITH THE STEPS REQUIRED BY THE LAW AND REGULATIONS, THE ARMY HAS NO JURISDICTION TO TRY HIM AS A DESERTER. ITS JUDGMENT WOULD BE VOID AND HABEAS CORPUS SHOULD BE ALLOWED.' IN THE VER MEHREN CASE, IT WAS HELD THAT ONLY PERSONS WHO ARE SUBJECT TO MILITARY LAW ARE LIABLE TO TRIAL BY AN ARMY COURT MARTIAL. THE PRESENT CASE THE GRANTING OF THE WRIT OF HABEAS CORPUS CLEARLY IS FOUNDED ON THE VIEW THAT SINCE DELUCA WAS NOT LAWFULLY INDUCTED INTO THE ARMY OF THE UNITED STATES HE WAS NOT A MEMBER OF THE MILITARY SERVICE AND HENCE NOT SUBJECT TO ARMY COURT MARTIAL DURING ANY PART OF THE PERIOD FROM MAY 14, 1959, TO FEBRUARY 1, 1960, INCLUSIVE. CONSEQUENTLY, DELUCA WAS NOT A DE JURE MEMBER OF THE ARMY OF THE UNITED STATES DURING THE PERIOD INDICATED. HE MAY, HOWEVER, BE VIEWED AS HAVING A DE FACTO STATUS DURING SUCH PERIOD.

SERVICE IN A DE FACTO STATUS CANNOT FORM THE BASIS OF ANY LEGAL CLAIM AGAINST THE GOVERNMENT FOR COMPENSATION THEREFOR, BUT COMPENSATION ALREADY PAID FOR SERVICES RENDERED IN A DE FACTO STATUS MAY BE RETAINED IF NOT IN EXCESS OF THE LEGAL AMOUNT PRESCRIBED THEREFOR. IT IS WELL ESTABLISHED THAT ONE CLAIMING THE SALARY OF AN OFFICE MUST ESTABLISH HIS LEGAL TITLE TO THE OFFICE AND IT IS NOT SUFFICIENT FOR SUCH PURPOSE THAT HE IS AN OFFICER DE FACTO. ROMERO V. UNITED STATES, 24 C.CLS. 331. COMPARE BEEMAN V. UNITED STATES, 65 C.CLS. 431, AND SEE MILLER V. UNITED STATES, 19 C.CLS. 339, HOLDING THAT AN OFFICER ILLEGALLY PLACED ON THE RETIRED LIST HOLDS A DE FACTO STATUS AND CONSEQUENTLY CANNOT RECOVER PAY NOT YET RECEIVED, BUT ON THE OTHER HAND IS NOT REQUIRED TO PAY BACK TO THE GOVERNMENT PAY THERETOFORE RECEIVED AND OTHERWISE AUTHORIZED FOR THAT POSITION. SUCH RULE PRECLUDES THE PAYMENT OF ANY FURTHER ACTIVE DUTY PAY AND ALLOWANCES TO DELUCA WHO MAY HOWEVER RETAIN THE AMOUNTS WHICH HAVE HERETOFORE BEEN RECEIVED BY HIM AS A DE FACTO ENLISTED MEMBER OF THE ARMY OF THE UNITED STATES.

YOU ARE ADVISED THAT PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH, TOGETHER WITH THE ACCOMPANYING CORRESPONDENCE AND PAPERS, WILL BE RETAINED IN THIS OFFICE.