B-14985, MARCH 26, 1941, 20 COMP. GEN. 558

B-14985, MARCH 26, 1941, 20 COMP. GEN. 558

PAY - PROMOTIONS - TEMPORARY RANK DURING WAR OR NATIONAL EMERGENCY THE PRESIDENT'S AUTHORITY TO TEMPORARILY APPOINT REGULAR ARMY OFFICERS TO HIGHER GRADES IN THE ARMY OF THE UNITED STATES DURING WAR OR NATIONAL EMERGENCY, DOES NOT INCLUDE AUTHORITY TO SO APPOINT OFFICERS--- WITHOUT INDICATION OF CORPS, BRANCH, OR DEPARTMENT--- IN A GRADE NOT PROVIDED FOR IN THE STATUTE FOR THE PARTICULAR CORPS, BRANCH, OR DEPARTMENT IN WHICH THE OFFICER NECESSARILY WILL FUNCTION, AND AS THE RANK OF CAPTAIN IS THE HIGHEST RANK PROVIDED BY STATUTE FOR THE MEDICAL ADMINISTRATIVE CORPS, THE DESIGNATION OF A CAPTAIN OF THAT CORPS AS A TEMPORARY MAJOR WAS NOT EFFECTIVE TO ENTITLE THE OFFICER TO PAY AND ALLOWANCES OF THE HIGHER RANK.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. F. M. MOORE, UNITED STATES ARMY, MARCH 26, 1941:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF JANUARY 27, 1941, TRANSMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED, A VOUCHER IN FAVOR OF WILLIAM C. WILLIAMS FOR $69.20, REPRESENTING THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A CAPTAIN AND THOSE OF A MAJOR WITH OVER 31 YEARS' SERVICE FOR THE PERIOD JANUARY 3 TO JANUARY 31, 1941, THE OFFICER HAVING BEEN APPOINTED A TEMPORARY MAJOR IN THE ARMY OF THE UNITED STATES WHILE SERVING IN THE REGULAR ARMY AS A CAPTAIN IN THE MEDICAL ADMINISTRATIVE CORPS.

PARAGRAPH 49 OF WAR DEPARTMENT SPECIAL ORDERS NO. 305, DATED DECEMBER 30, 1940, IS AS FOLLOWS:

49. ANNOUNCEMENT IS MADE OF THE TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES OF THE FOLLOWING-NAMED OFFICERS OF THE MEDICAL ADMINISTRATIVE CORPS TO THE GRADE OF MAJOR WITH RANK FROM 30 DECEMBER, 1940, UNDER THE PROVISIONS OF SECTION 127A, NATIONAL DEFENSE ACT AS AMENDED BY THE ACT OF CONGRESS APPROVED 9 SEPTEMBER, 1940:

CAPTAIN WILLIAM CLARENCE WILLIAMS

( A.G. 210.1, MED. DEPT.) (12 DEC. 40.)

NOTHING HAS BEEN SUBMITTED TO SHOW THE FACT OF APPOINTMENT EXCEPT THE OATH OF OFFICE WHICH IS AS FOLLOWS:

OATH OF OFFICE REGULAR ARMY

ARMY OF THE UNITED STATES

( TEMPORARY)

I, WILLIAM CLARENCE WILLIAMS, HAVING BEEN APPOINTED TEMPORARILY A MAJOR IN THE ARMY OF THE UNITED STATES, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE UPON WHICH I AM ABOUT TO ENTER, SO HELP ME GOD.

( SGD) WILLIAM C. WILLIAMS, MAJ. MED. ADM. C.

( SIGNATURE) ( GRADE AND ORGANIZATION OR ARM OR SERVICE)

WILLIAM BEAUMONT GENERAL HOSPITAL,

SWORN TO AND SUBSCRIBED BEFORE ME, AT EL PASO, TEXAS, THIS THIRD DAY OF JANUARY, 1941.

G. S. WOODARD,

LT. COL. MEDICAL CORPS, ADJUTANT.

SECTION 10 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACTS OF JANUARY 29, 1938, 52 STAT. 8, AND APRIL 3, 1939, 53 STAT. 559, PROVIDES:

THE MEDICAL DEPARTMENT SHALL CONSIST OF ONE SURGEON GENERAL WITH THE RANK OF MAJOR GENERAL, FOUR ASSISTANTS WITH THE RANK OF BRIGADIER GENERAL, ONE OF WHOM SHALL BE AN OFFICER IN THE DENTAL CORPS, * * * THE MEDICAL ADMINISTRATIVE CORPS, * * * THE NUMBER OF OFFICERS OF THE MEDICAL CORPS SHALL BE ONE THOUSAND FOUR HUNDRED AND TWENTY-FOUR, AND OF THE MEDICAL ADMINISTRATIVE CORPS, SIXTEEN. * * *

HEREAFTER AN OFFICER OF THE MEDICAL, VETERINARY OR DENTAL CORPS SHALL BE PROMOTED TO THE GRADE OF CAPTAIN AFTER THREE YEARS' SERVICE, TO THE GRADE OF MAJOR AFTER TWELVE YEARS' SERVICE, TO THE GRADE OF LIEUTENANT COLONEL AFTER TWENTY YEARS' SERVICE, AND TO THE GRADE OF COLONEL AFTER TWENTY-SIX YEARS' SERVICE.

AN OFFICER OF THE MEDICAL ADMINISTRATIVE CORPS SHALL BE PROMOTED TO THE GRADE OF FIRST LIEUTENANT AFTER FIVE YEARS' SERVICE, AND TO THE GRADE OF CAPTAIN AFTER TEN YEARS' SERVICE. * * *

UNDER SECTION 24E OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 151, APPOINTMENTS IN THE MEDICAL ADMINISTRATIVE CORPS SHALL BE MADE IN THE GRADE OF SECOND LIEUTENANT FROM PHARMACISTS BETWEEN THE AGES OF 21 AND 32 YEARS WHO ARE GRADUATES OF RECOGNIZED SCHOOLS OR COLLEGES OF PHARMACY REQUIRING 4 YEARS OF INSTRUCTION FOR GRADUATION, UNDER SUCH REGULATIONS AND AFTER SUCH EXAMINATION AS THE SECRETARY OF WAR SHALL PRESCRIBE.

BY PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 858, AND THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 885, THE CONGRESS DECLARED THAT IT WAS IMPERATIVE TO INCREASE AND TRAIN THE PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES AND AUTHORIZED THE PRESIDENT TO CALL AND INDUCT INTO THE SERVICE THE PERSONNEL THEREIN REFERRED TO.

PARAGRAPH 7 OF SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 20 OF THE ACT OF JUNE 15, 1933, 48 STAT. 161, AND SECTION 101 OF THE ACT OF SEPTEMBER 9, 1940, PUBLIC, NO. 781, 54 STAT. 875, 10 U.S.C. 513, PROVIDES:

IN TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT ANY OFFICER OF THE REGULAR ARMY MAY BE APPOINTED TO HIGHER TEMPORARY GRADE WITHOUT VACATING HIS PERMANENT APPOINTMENT. IN TIME OF WAR ANY OFFICER OF THE REGULAR ARMY APPOINTED TO HIGHER TEMPORARY GRADE, AND ALL OTHER PERSONS APPOINTED, AS OFFICERS, SHALL BE APPOINTED AND COMMISSIONED IN THE ARMY OF THE UNITED STATES. SUCH APPOINTMENTS IN GRADES BELOW THAT OF BRIGADIER GENERAL SHALL BE MADE BY THE PRESIDENT ALONE, AND GENERAL OFFICERS BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: * * *

UNDER SECTION 1 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 2, THE ARMY OF THE UNITED STATES CONSISTS OF THE REGULAR ARMY, THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, AND THE OTHER RESERVE COMPONENTS AS THEREIN ENUMERATED, AND IT APPEARS TO BE THE PURPOSE AND POLICY DURING THE PRESENT EXPANSION AND TRAINING PROGRAM AS AUTHORIZED BY PUBLIC RESOLUTION NO. 96 AND THE ACT OF SEPTEMBER 16, 1940, SUPRA, TO PRESERVE THE IDENTITY OF THE VARIOUS COMPONENTS COMPRISING THE ARMY OF THE UNITED STATES. IN THE NATIONAL DEFENSE ACT AS NOW AMENDED AND IN FORCE WILL BE FOUND THE COMPOSITION OF THE REGULAR ARMY INCLUDING THE COMBATANT AND NONCOMBATANT BRANCHES (SECTION 2); ITS ORGANIZATION (SECTION 3); AND LIMITATIONS UPON THE NUMBER AND MAXIMUM GRADES OF OFFICERS OF THE STAFF AND LINE BRANCHES AND THE AUTHORITY OF THE PRESIDENT TO ORGANIZE THE LINE BRANCHES OF THE REGULAR ARMY INTO SUCH UNITS AS HE MAY PRESCRIBE (SECTIONS 6 TO 20, INCLUSIVE).

SECTION 2 (B) OF THE ACT OF JULY 2, 1940, PUBLIC NO. 703, 54 STAT. 713, PROVIDES IN PART:

THE PRESIDENT MAY, DURING THE FISCAL YEAR 1941, ASSIGN OFFICERS AND ENLISTED MEN TO THE VARIOUS BRANCHES OF THE ARMY IN SUCH NUMBERS AS HE CONSIDERS NECESSARY, IRRESPECTIVE OF THE LIMITATIONS ON THE STRENGTH OF ANY PARTICULAR BRANCH OF THE ARMY SET FORTH IN THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED: * * *

IT APPEARS TO BE CLEAR THAT THE PROVISIONS OF LAW AND THE STATUTORY LIMITATIONS UPON THE NUMBER OF OFFICERS AUTHORIZED BY THE NATIONAL DEFENSE ACT, AS AMENDED, ARE AFFECTED BY THE FIRST SENTENCE OF PARAGRAPH 7 OF SECTION 127A OF THE NATIONAL DEFENSE ACT AS AMENDED BY THE ACT OF SEPTEMBER 9, 1940, AND THE ACT OF JULY 2, 1940, SUPRA.

THE AMENDMENT OF THE FIRST SENTENCE BY THE ACT OF SEPTEMBER 9, 1940, ADDED THE WORDS "OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT," THE EFFECT OF WHICH WAS TO AUTHORIZE THE PRESIDENT TO APPOINT OFFICERS OF THE REGULAR ARMY TO A HIGHER TEMPORARY GRADE NOT ONLY IN TIME OF WAR BUT IN A NATIONAL EMERGENCY. THE LANGUAGE OF THE SECOND AND THIRD SENTENCES OF PARAGRAPH 7 WAS NOT CHANGED BY THE AMENDMENT OF SEPTEMBER 9, 1940, BUT IT SEEMS EVIDENT THAT THE ANTECEDENT OF THE PHRASE " SUCH APPOINTMENTS" AT THE BEGINNING OF THE THIRD SENTENCE IS NOT LIMITED TO THE SENTENCE IMMEDIATELY PRECEDING BUT RELATES BACK, ALSO, TO THE FIRST SENTENCE OF THE PARAGRAPH, THE NECESSARY EFFECT OF WHICH WAS TO GIVE THE PRESIDENT AUTHORITY TO MAKE TEMPORARY APPOINTMENTS OF OFFICERS OF THE REGULAR ARMY UP TO AND INCLUDING THE GRADE OF COLONEL IN THE ARMY OF THE UNITED STATES IN TIME OF WAR AND DURING A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT WITHOUT CONFIRMATION BY THE SENATE. WHILE THE AUTHORITY VESTED IN THE PRESIDENT TO APPOINT AND COMMISSION TEMPORARILY SUCH REGULAR ARMY OFFICERS IN THE ARMY OF THE UNITED STATES EVIDENTLY REMOVES THE LIMITATIONS UPON THE NUMBER OF OFFICERS WHO MAY BE SO COMMISSIONED, THE LIMITATIONS UPON THE MAXIMUM OR HIGHEST GRADES AUTHORIZED FOR OFFICERS FOR THE VARIOUS BRANCHES OF THE ARMY AS DEFINITELY FIXED BY THE NATIONAL DEFENSE ACT ARE NOT AFFECTED BY THE AMENDMENT REFERRED TO.

WHILE THE ORDER IN THE PRESENT CASE INDICATES THE OFFICER HAS BEEN COMMISSIONED IN THE ARMY OF THE UNITED STATES AND NOT IN THE MEDICAL ADMINISTRATIVE CORPS, OBVIOUSLY HE IS IN THE MEDICAL DEPARTMENT. HE IS NOT A MAJOR OF INFANTRY OF THE UNITED STATES ARMY, OR A MAJOR OF ANY OTHER BRANCH OR CROPS. HE IS NOT A MEDICAL OFFICER, NOR A DENTAL OFFICER, NOR A VETERINARY OFFICER; SO, BEING IN THE MEDICAL DEPARTMENT OF THE ARMY OF THE UNITED STATES, HE MUST BE AN OFFICER OF THAT PORTION OF THE MEDICAL DEPARTMENT CREATED BY STATUTE AS THE MEDICAL ADMINISTRATIVE CORPS. SECTION 10 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUPRA, PROVIDES THAT AN OFFICER OF THE MEDICAL ADMINISTRATIVE CORPS SHALL BE PROMOTED TO FIRST LIEUTENANT AFTER 5 YEARS' SERVICE TO THE GRADE OF CAPTAIN AFTER 10 YEARS' SERVICE. UNDER PARAGRAPH 7 OF SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND DURING THE FISCAL YEAR 1941 UNDER SECTION 2B OF THE ACT OF JULY 2, 1940, PUBLIC, NO. 703, 54 STAT. 713, THE LIMITATION UPON THE NUMBER OF OFFICERS WHO MAY BE ASSIGNED TO ANY BRANCH OF THE ARMY IS REMOVED, BUT THESE PROVISIONS OBVIOUSLY ARE SUBJECT TO THE UNREPEALED PROVISIONS OF THE BASIC LAW WHICH RESTRICT THE GRADE OR RANK WHICH LEGALLY MAY BE ASSIGNED AN OFFICER OF A PARTICULAR BRANCH OF THE SERVICE WHERE SUCH LIMIT IS FIXED BY STATUTE. UNDER SECTION 10 OF THE NATIONAL DEFENSE ACT, AS AMENDED, THE HIGHEST GRADE LEGALLY AUTHORIZED FOR AN OFFICER OF THE MEDICAL ADMINISTRATIVE CORPS IS THAT OF CAPTAIN, FOR WHOM THE MAXIMUM PAY AND ALLOWANCES UPON COMPLETION OF 17 YEARS' SERVICE WOULD BE THOSE OF THE FOURTH PERIOD UNDER THE PROVISIONS OF THE FIFTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED.

THAT PORTION OF THE MEDICAL DEPARTMENT OF THE REGULAR ARMY CREATED BY STATUTE AS THE MEDICAL ADMINISTRATIVE CORPS HAS A STATUTORY ORGANIZATION CONSISTING OF OFFICERS OF THE GRADE OF SECOND LIEUTENANT, FIRST LIEUTENANT AND CAPTAIN. OFFICERS OF THE GRADE OF MAJOR, MEDICAL ADMINISTRATIVE CORPS OF THE ARMY, ARE NOT PROVIDED FOR IN THE STATUTE. THEREFORE, SINCE THE MEDICAL ADMINISTRATIVE CORPS IN THE REGULAR ARMY IS A STATUTORY ORGANIZATION WITH A STATUTORY LIMITATION ON THE GRADE OF OFFICERS THEREOF, IT IS NOT APPARENT ON WHAT BASIS IT COULD BE HELD THAT THE AUTHORITY TO APPOINT OFFICERS TEMPORARILY IN THE ARMY OF THE UNITED STATES INCLUDES THE AUTHORITY TO APPOINT OFFICERS--- WITHOUT INDICATION OF CORPS, BRANCH, OR DEPARTMENT--- IN A GRADE NOT PROVIDED FOR IN THE STATUTE FOR PARTICULAR CORPS, BRANCH OR DEPARTMENT IN WHICH THE OFFICER NECESSARILY WILL FUNCTION. IT WILL BE OBSERVED THE ORDER ANNOUNCING THE APPOINTMENT IN THIS CASE DID NOT RELIEVE THE OFFICER FROM THE DUTY HE WAS THEN PERFORMING. APPARENTLY HE CONTINUED ON THE DUTY THERETOFORE ASSIGNED HIM AS A CAPTAIN, MEDICAL ADMINISTRATIVE CORPS, REGULAR ARMY, AND, AS INDICATED ABOVE IN THE QUOTATION OF THE OFFICER'S OATH OF OFFICE, THE OFFICER HIMSELF RECOGNIZES THAT UNDER HIS TEMPORARY APPOINTMENT HE STILL IS AN OFFICER IN THE MEDICAL ADMINISTRATIVE CORPS.

ACCORDINGLY, I HAVE TO ADVISE THAT, ON THE PRESENT RECORD, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.