B-154202, AUGUST 13, 1964, 44 COMP. GEN. 83

B-154202: Aug 13, 1964

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WAS TERMINATED BY EXECUTIVE ORDER NO. 10397. THE PAYMENTS MADE ARE FOR RECOVERY. " AND THE OFFICER RETAINED THROUGH OVERSIGHT AFTER HIS COMMISSION EXPIRED IS A DE FACTO OFFICER AND IS NOT WITHIN THE PURVIEW OF SECTION 241 OF THE ARMED FORCES RESERVE ACT OF 1952. 1964: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6. HENRY WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. HE WAS CREDITED WITH 9 YEARS. HENRY WAS APPOINTED SECOND LIEUTENANT. THAT HE WAS PROMOTED TO FIRST LIEUTENANT. THAT HE WAS PROMOTED TO CAPTAIN. THAT HE WAS APPOINTED CAPTAIN. THAT HE WAS RELIEVED FROM ACTIVE DUTY ON DECEMBER 29. SUCH STATEMENT ALSO SHOWS THAT HE WAS RECALLED TO ACTIVE DUTY ON NOVEMBER 3. WHEN HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

B-154202, AUGUST 13, 1964, 44 COMP. GEN. 83

PAY - RETIRED - DISABILITY - ERRONEOUS PLACEMENT ON TEMPORARY RETIRED LIST, ETC. WHERE AN OFFICER UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, THAT EXPIRED MARCH 21, 1953, HELD NO COMMISSION FROM APRIL 1, 1953, THE DATE HIS APPOINTMENT IN THE OFFICER'S RESERVE CORPS, PURSUANT TO SECTION 37 OF THE NATIONAL DEFENSE ACT, WAS TERMINATED BY EXECUTIVE ORDER NO. 10397, AND JANUARY 28, 1954, THE DATE HE ACCEPTED AN INDEFINITE ORDER NO. 10397, AND JANUARY 28, 1954, THE DATE HE ACCEPTED AN INDEFINITE APPOINTMENT AS AN ARMY RESERVIST, NO LEGAL BASIS EXISTED FOR HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST ON AUGUST 31, 1953, AND SUBSEQUENT PERMANENT RETIREMENT WITH ENTITLEMENT TO RETIRED PAY BENEFITS, AND THE PAYMENTS MADE ARE FOR RECOVERY, SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, ONLY AUTHORIZING PLACEMENT ON THE TEMPORARY DISABILITY LIST "WHILE ENTITLED TO RECEIVE BASIC PAY," AND THE OFFICER RETAINED THROUGH OVERSIGHT AFTER HIS COMMISSION EXPIRED IS A DE FACTO OFFICER AND IS NOT WITHIN THE PURVIEW OF SECTION 241 OF THE ARMED FORCES RESERVE ACT OF 1952, PROVIDING PAY AND ALLOWANCES FOR RESERVISTS CONTINUED ON ACTIVE DUTY AFTER THE EXPIRATION OF THEIR TERM OF OFFICE.

TO COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, AUGUST 13, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1964, AND ENCLOSURES, FORWARDED HERE BY FIRST INDORSEMENT OF MAY 12, 1964, FROM THE OFFICE OF THE CHIEF OF FINANCE UNDER DO-A-768 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING THE ACCOMPANYING VOUCHER TOTALING $255 IN THE CASE OF CAPTAIN THOMAS L. HENRY, O 450 890, RETIRED, REPRESENTING RETIRED PAY FOR THE PERIOD MARCH 1 THROUGH 30, 1964.

PARAGRAPH 2 OF YOUR LETTER OF APRIL 6, 1964, READS AS FOLLOWS:

THOMAS L. HENRY WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, EFFECTIVE 31 AUGUST 1953, IN THE GRADE OF CAPTAIN, UNDER THE PROVISIONS OF SECTIONS 402 AND 409, PUBLIC LAW 81-351, 65 STATUTE 802, AS AMENDED, BY REASON OF 40 PERCENT DISABILITY. PARAGRAPH 57, DASO 165, DATED 21 AUGUST 1953, ANNOUNCING HIS PLACEMENT ON THE LIST READS,"* * * CAPTAIN THOMAS L. HENRY, O 450 890 CE USAR.' HE WAS CREDITED WITH 9 YEARS, 9 MONTHS, AND 25 DAYS TOTAL ACTUAL ACTIVE SERVICE AND 13 YEARS, 2 MONTHS, AND 10 DAYS TOTAL SERVICE FOR BASIC PAY PURPOSES. PARAGRAPH 55, DASO 140, DATED 18 JULY 1955, ANNOUNCED HIS REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE 31 JULY 1955 AND PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE 1 AUGUST 1955 BY REASON OF 50 PERCENT DISABILITY.

THE STATEMENT OF SERVICE FURNISHED BY THE ADJUTANT GENERAL OF THE ARMY SHOWS THAT THOMAS L. HENRY WAS APPOINTED SECOND LIEUTENANT, ARMY OF THE UNITED STATES, EFFECTIVE SEPTEMBER 30, 1941; THAT HE WAS PROMOTED TO FIRST LIEUTENANT, ARMY OF THE UNITED STATES, EFFECTIVE FEBRUARY 1, 1942; THAT HE WAS PROMOTED TO CAPTAIN, ARMY OF THE UNITED STATES, EFFECTIVE DECEMBER 26, 1942; THAT HE WAS APPOINTED CAPTAIN, OFFICERS' RESERVE CORPS, EFFECTIVE NOVEMBER 16, 1945; AND THAT HE WAS RELIEVED FROM ACTIVE DUTY ON DECEMBER 29, 1945. SUCH STATEMENT ALSO SHOWS THAT HE WAS RECALLED TO ACTIVE DUTY ON NOVEMBER 3, 1950, IN THE GRADE OF CAPTAIN, CORPS OF ENGINEERS, UNITED STATES ARMY RESERVE; THAT HE SERVED ON ACTIVE DUTY UNTIL AUGUST 31, 1953, WHEN HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST; THAT HE WAS GIVEN AN INDEFINITE TERM APPOINTMENT AS CAPTAIN, UNITED STATES ARMY RESERVE, ON JANUARY 8, 1954, WHICH APPOINTMENT WAS ACCEPTED BY HIM ON JANUARY 28, 1954; AND THAT HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE AUGUST 1, 1955.

AS STATED BY YOU, THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, CH. 414, 55 STAT. 728, 10 U.S.C. 484 NOTE (1946 ED.), PROVIDED THAT "DURING THE PRESENT EMERGENCY" THE PRESIDENT MIGHT MAKE TEMPORARY APPOINTMENTS OF QUALIFIED PERSONS AS COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND THAT, IF NOT SOONER VACATED, SUCH APPOINTMENTS SHOULD CONTINUE ,DURING THE PRESENT EMERGENCY" AND 6 MONTHS THEREAFTER. IT APPEARS THAT THOMAS L. HENRY WAS APPOINTED SECOND LIEUTENANT, ARMY OF THE UNITED STATES, EFFECTIVE SEPTEMBER 30, 1941, UNDER THAT JOINT RESOLUTION. AS YOU POINT OUT, SECTION 2 OF THE ACT OF AUGUST 25, 1959, PUBLIC LAW 86-197, 73 STAT. 426, 10 U.S.C. 3441 NOTE, PROVIDED THAT ALL APPOINTMENTS MADE AFTER DECEMBER 6, 1941, IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, THAT WERE NOT EARLIER TERMINATED BY ADMINISTRATIVE ACTION OR SPECIFIC PROVISION OF LAW "MAY BE CONSIDERED FOR ALL PURPOSES TO HAVE CONTINUED IN EFFECT UNTIL THE CLOSE OF MARCH 21, 1953.'

IT APPEARS THAT CAPTAIN HENRY'S APPOINTMENT OF NOVEMBER 16, 1945, AS A CAPTAIN, OFFICERS' RESERVE CORPS, WAS MADE UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 352 AND 358 (1946 ED.), WHICH PROVIDED THAT APPOINTMENTS IN THE OFFICERS' RESERVE CORPS BELOW THE GRADE OF BRIGADIER GENERAL SHOULD BE MADE BY THE PRESIDENT, THAT ALL SUCH APPOINTMENTS SHOULD BE FOR A PERIOD OF 5 YEARS, BUT THAT AN APPOINTMENT IN FORCE AT THE OUTBREAK OF WAR "SHALL CONTINUE IN FORCE UNTIL SIX MONTHS AFTER ITS TERMINATION.' PARAGRAPH 7, SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 513 (1946 ED.), PROVIDED THAT AN APPOINTMENT OTHER THAN THAT OF A MEMBER OF THE REGULAR ARMY MADE IN TIME OF WAR "SHALL CONTINUE UNTIL SIX MONTHS AFTER ITS TERMINATION.' BY PROCLAMATION 2974, APRIL 28, 1952, THE PRESIDENT OF THE UNITED STATES PROCLAIMED THAT THE NATIONAL EMERGENCIES DECLARED TO EXIST BY PROCLAMATIONS OF SEPTEMBER 8, 1939, AND MAY 27, 1941, "TERMINATED THIS DAY UPON THE ENTRY INTO FORCE OF THE TREATY OF PEACE WITH JAPAN.' SECTION 1 (C) OF THE EMERGENCY POWERS CONTINUATION ACT, CH. 570, 66 STAT. 333, 10 U.S.C. 506 NOTE (1952 ED.), PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE TERMINATION ON APRIL 28, 1952, OF THE STATE OF WAR WITH JAPAN AND OF THE NATIONAL EMERGENCIES MENTIONED ABOVE, 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 AND OF THE AIR FORCE WHICH WOULD TERMINATE AFTER APRIL 27, 1952, AND BEFORE APRIL 1, 1953, UNDER CERTAIN PROVISIONS OF LAW INCLUDING SECTIONS 37 AND 127A (10 U.S.C. 992 (1952 ED.) ( OF THE NATIONAL DEFENSE ACT. SUCH EXTENSIONS TO APRIL 1, 1953, WERE PROVIDED FOR IN EXECUTIVE ORDER NO. 10397, SEPTEMBER 25, 1952. THOSE PROVISIONS OF LAW AND REGULATIONS WILL BE REGARDED AS EFFECTING AN EXTENSION OF CAPTAIN HENRY'S RESERVE MEMBERSHIP TO APRIL 1, 1953.

PARAGRAPH 9 OF YOUR LETTER OF APRIL 6, 1964, READS AS FOLLOWS:

IN VIEW OF THE FACT THAT CAPTAIN HENRY APPARENTLY HELD NO LAWFUL COMMISSION FROM 2 APRIL 1953 THROUGH 27 JANUARY 1954 (THE DATE HE ACCEPTED HIS INDEFINITE APPOINTMENT) (ACCEPTANCE ACTUALLY WAS ON JANUARY 28, 1954), DOUBT EXISTS AS TO WHETHER THE VETERAN'S STATUS DURING THE PERIOD 1 APRIL 1953 THROUGH 31 AUGUST 1953 MAY BE CONSIDERED AS THAT OF A MEMBER ENTITLED TO BASIC PAY, AND WHETHER THERE WAS A LEGAL BASIS FOR HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE 31 AUGUST 1953 AND SUBSEQUENT PERMANENT RETIREMENT WITH ENTITLEMENT TO RETIRED PAY BENEFITS THEREOF. ADVANCE DECISION IS REQUESTED.

SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 817, 37 U.S.C. 272 (B) (1952 ED.), PROVIDED FOR THE PLACEMENT OF A MEMBER'S NAME ON TEMPORARY DISABILITY RETIRED LIST UNDER THE CIRCUMSTANCES THERE PRESCRIBED UPON A DETERMINATION BY THE SECRETARY CONCERNED THAT SUCH MEMBER IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED "WHILE ENTITLED TO RECEIVE BASIC PAY.' SUBSEQUENT PERMANENT RETIREMENT WAS AUTHORIZED AS PRESCRIBED IN SECTION 402 (E), 37 U.S.C. 272 (E) (1952 ED.).

SECTION 241 OF THE ARMED FORCES RESERVE ACT OF 1952, CH. 608, 66 STAT. 492, EFFECTIVE JANUARY 1, 1953, 50 U.S.C. 972 (1952 ED.), PROVIDED:

MEMBERS OF THE RESERVE COMPONENTS RETAINED OR CONTINUED ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PURSUANT TO LAW AFTER THE EXPIRATION OF THEIR TERM OF SERVICE ARE ENTITLED TO PAY AND ALLOWANCES WHILE ON SUCH DUTY EXCEPT TO THE EXTENT THAT FORFEITURE THEREOF IS ADJUDGED BY AN APPROVED SENTENCE OF A COURT-MARTIAL OR NONJUDICIAL PUNISHMENT BY A COMMANDING OFFICER, OR UNLESS OTHERWISE IN A NONPAY STATUS PURSUANT TO LAW.

IT IS STATED IN S.REPT. NO. 1795 (PAGE 30) AND H.REPT. NO. 1066 (PAGE 46) ON H.R. 5426, 82D CONGRESS, WHICH BECAME THE ARMED FORCES RESERVE ACT OF 1952, THAT THE RESERVISTS TO BE BENEFITED BY SECTION 241 ARE THOSE WHOSE PRESENCE IS "REQUIRED" FOR OFFICIAL REASONS BEYOND THE TERM OF THEIR ENLISTMENT OR APPOINTMENT. IT SEEMS, THEREFORE, THAT THIS POINTS TO SITUATIONS WHERE THE SERVICE WISHES TO RETAIN THE PERSON CONCERNED FOR SOME OFFICIAL REASON OR PURPOSE; MERE OVERSIGHT IN NOT KNOWING THAT A MAN'S COMMISSION HAS EXPIRED WOULD NOT BE ENOUGH TO BRING HIM WITHIN THE PURVIEW OF SECTION 241. IT IS OUR VIEW THAT AN OFFICER WHO IS RETAINED THROUGH OVERSIGHT, AFTER HIS COMMISSION HAS EXPIRED, IS A DE FACTO OFFICER AND NOTHING MORE; THAT SUCH AN OFFICER MAY NOT BE CONSIDERED TO BE A MEMBER "ENTITLED TO RECEIVE BASIC PAY" WITHIN THE INTENT AND MEANING OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949; AND THAT IT IS THEN TOO LATE FOR A DETERMINATION OF DISABILITY TO BE MADE WHICH WOULD SERVE AS A BASIS FOR HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST AND HIS SUBSEQUENT PERMANENT RETIREMENT WITH ENTITLEMENT TO RETIRED PAY BENEFITS THEREOF. SEE 29 COMP. GEN. 520, 36 COMP. GEN. 632, AND HEINS V. UNITED STATES, 137 CT.CL. 658, 665 (1957). SEE, ALSO, 33 COMP. GEN. 339, 344-345 AND 41 COMP. GEN. 706, 708.

ON SUCH BASIS, IT IS CONCLUDED THAT THERE WAS NO LEGAL BASIS FOR CAPTAIN HENRY'S PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AUGUST 31, 1953, AND HIS SUBSEQUENT PERMANENT RETIREMENT ON AUGUST 1, 1955. IT NECESSARILY FOLLOWS THAT HE IS NOT ENTITLED TO RETAIN THE RESULTING PAYMENTS OF RETIRED PAY IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF HIS RECORDS THROUGH THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS. OUR DEFENSE ACCOUNTING AND AUDITING DIVISION IS BEING ADVISED TO TAKE EXCEPTIONS TO SUCH PAYMENTS IN THE ABSENCE OF SUCH A CORRECTION.

THE VOUCHER PRESENTED IS BEING RETAINED HERE INASMUCH AS PAYMENT THEREIN IS NOT AUTHORIZED.