B-157324, SEPT. 20, 1965, 45 COMP. GEN. 149

B-157324, SEPT. 20, 1965, 45 COMP. GEN. 149

APPOINTMENTS - MILITARY PERSONNEL - TERMINATION - WOMEN'S ARMY CORPS APPOINTMENTS PRIOR TO DECEMBER 6, 1941, IN THE WOMEN'S ARMY CORPS ORIGINATING UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, AUTHORIZING THE TEMPORARY APPOINTMENT OF OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, APPOINTMENTS CONTINUED BY THE ACT OF JULY 1, 1943, ESTABLISHING THE CORPS IN THE ARMY, AND REPEALED BY THE ACT OF JULY 25, 1947, EFFECTIVE JULY 1, 1948, AND EXTENDED 1 YEAR BY THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, FROM DATE OF ENACTMENT, JUNE 12, 1948, THE ACT THAT ESTABLISHED THE CORPS IN THE REGULAR ARMY, TERMINATED JUNE 12, 1949, THE SUSPENDED REPEAL PROVISION BECOMING EFFECTIVE AUTOMATICALLY, WITHOUT REENACTMENT ON THE EXPIRATION OF THE EXTENDED PERIOD, AND THE APPOINTMENTS MADE AFTER DECEMBER 6, 1941 UNDER THE JOINT RESOLUTION THAT WERE NOT TERMINATED BY ADMINISTRATIVE ACTION OR SOME PROVISION OF LAW OTHER THAN THE 1948 ACT CONTINUED IN EFFECT UNTIL MARCH 31, 1953 UNDER THE ACT OF AUGUST 25, 1959.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 20, 1965:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 23, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER APPOINTMENTS IN THE WOMEN'S ARMY CORPS THAT ORIGINATED UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, 55 STAT. 728, TERMINATED (1) ON JUNE 12, 1949, PURSUANT TO SECTION 110 OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, 62STAT. 363, OR (2) ON MARCH 31, 1953, UNDER THE PROVISIONS OF THE ACT OF AUGUST 25, 1959, 73 STAT. 425. THE QUESTION PRESENTED IS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 362 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, AUTHORIZED THE TEMPORARY APPOINTMENT OF OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT APPOINTING SUCH PERSONS AS OFFICERS IN ANY PARTICULAR COMPONENT AND PROVIDED THAT SUCH APPOINTMENT SHOULD CONTINUE DURING THE EMERGENCY EXISTING AT THAT TIME AND FOR 6 MONTHS THEREAFTER. THE ACT OF JULY 1, 1943, 57 STAT. 371, 50 U.S.C. APP. 1551 (1946 ED.), ESTABLISHED THE WOMEN'S ARMY CORPS FOR SERVICE IN THE ARMY OF THE UNITED STATES, AND SECTION 3 OF THIS ACT, 50 U.S.C. APP. 1553 (1946 ED.), PROVIDED THAT THE COMMISSIONED OFFICERS OF THAT CORPS SHOULD CONSIST OF WOMEN APPOINTED AS OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941. THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, AND THE ACT OF JULY 1, 1943, WERE REPEALED EFFECTIVE JULY 1, 1948, BY SECTION 2A OF THE ACT OF JULY 25, 1947, 61 STAT. 451.

ON JUNE 12, 1948, PRIOR TO THE EFFECTIVE DATE OF THE REPEAL OF THE 1941 AND 1943 ACTS, THERE WAS ENACTED THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, THE PURPOSE OF WHICH WAS TO ESTABLISH THE WOMEN'S ARMY CORPS IN THE REGULAR ARMY AND TO AUTHORIZE THE ENLISTMENT AND APPOINTMENT OF WOMEN IN THE REGULAR AIR FORCE, REGULARLY NAVY AND MARINE CORPS, AND IN THE RESERVE COMPONENTS OF THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS. SECTION 110 OF THAT ACT PROVIDED THAT "NOTWITHSTANDING THE PROVISIONS OF SECTION 2A OF THE ACT OF JULY 25, 1947 (PUBLIC LAW 239, EIGHTIETH CONGRESS), NEITHER (1) THE ACT OF JULY 1, 1943 (57 STAT. 371), NOR (2) THE ACT OF SEPTEMBER 22, 1941 (55 STAT. 728, CH. 414), AS AMENDED INSOFAR AS IT PERTAINS TO OFFICERS OF THE WOMEN'S ARMY CORPS HERETOFORE APPOINTED THEREUNDER, SHALL BE REPEALED UNTIL THAT DATE WHICH IS TWELVE MONTHS AFTER THE DATE OF ENACTMENT OF THIS ACT.' THE LEGISLATIVE HISTORY OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, INDICATES THAT THIS DELAY OF 1 YEAR IN THE EFFECTIVE DATE OF THE REPEAL OF THE 1943 AND 1941 ACTS AS THEY APPLIED TO OFFICERS OF THE WOMEN'S ARMY CORPS WAS NECESSARY IN VIEW OF THE FACT THAT UNDER SECTION 2A OF THE ACT OF JULY 25, 1947, THE WOMEN'S ARMY CORPS WOULD OTHERWISE TERMINATE ON JULY 1, 1948. THE DELAY TO JUNE 12, 1949, WAS INTENDED TO PERMIT AN ORDERLY TRANSITION FROM THE WOMEN'S ARMY CORPS TO THE NEW RESERVE STATUS.

SECTION 2 OF THE ACT OF AUGUST 25, 1959, PUBLIC LAW 86-197, 73 STAT. 425, 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 (CH. 414, 55 STAT. 728), THAT WERE NOT EARLIER TERMINATED BY ADMINISTRATIVE ACTION OR SPECIFIC PROVISION OF LAW MAY BE CONSIDERED TO HAVE CONTINUED IN EFFECT UNTIL THE CLOSE OF MARCH 31, 1953.'

IN DECISION OF OCTOBER 7, 1955, 35 COMP. GEN. 191, WE HELD THAT ALL APPOINTMENTS IN THE ARMY OF THE UNITED STATES MADE UNDER THE 1941 ACT, NOT CONTINUED UNDER OTHER PROVISIONS OF LAW, TERMINATED ON JUNE 30, 1948, THE EFFECTIVE DATE OF REPEAL OF THE 1941 ACT. THE LEGISLATIVE HISTORY OF SECTION 2 OF THE ACT OF AUGUST 25, 1959 (PAGES 4 AND 5 OF S.REPT. NO. 727 TO ACCOMPANY H.R. 3365 WHICH BECAME PUBLIC LAW 88 197) SHOWS THAT SECTION 2 WAS INTENDED TO OVERCOME THAT DECISION.

THE MILITARY PAY AND ALLOWANCE COMMITTEE SUGGESTS THE POSSIBILITY THAT THE ABOVE-QUOTED SECTION 110 OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948 MAY BE VIEWED AS A SPECIFIC PROVISION OF LAW TERMINATING WAC APPOINTMENTS FOR PURPOSES OF THE ACT OF AUGUST 25, 1959. ON THE BASIS, HOWEVER, THAT IT PROPERLY SHOULD BE REGARDED AS SIMPLY AN AUTHORIZATION FOR THE CONTINUED RECOGNITION OF APPOINTMENTS AS THEY THEN EXISTED, THE PAY COMMITTEE EXPRESSES THE VIEW THE WAC APPOINTMENTS THAT ORIGINATED UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, SHOULD BE REGARDED AS CONTINUING IN EFFECT UNTIL MARCH 31, 1953, UNDER THE PROVISIONS OF THE ACT OF AUGUST 25, 1959.

BY ITS OWN TERMS SECTION 110 OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948 DID NO MORE THAN SUSPEND THE REPEAL OF SECTION 2A OF THE ACT OF JULY 25, 1947, AND THE ACT OF JULY 1, 1943 (CREATING THE WOMEN'S ARMY CORPS), UNTIL JUNE 12, 1949. HENCE WE FIND NO SOUND BASIS FOR VIEWING IT AS A SPECIFIC PROVISION OF LAW TERMINATING APPOINTMENTS MADE UNDER THE 1941 ACT. AS A GENERAL RULE, AN ACT SUSPENDED FOR A FIXED PERIOD OF TIME BECOMES EFFECTIVE AUTOMATICALLY AND WITHOUT REENACTMENT ON THE EXPIRATION OF THAT PERIOD. SEE 82 C.J.S. STATUTES, SECTION 304. THUS, EXCEPT FOR THE 1-YEAR DELAY IN THE EFFECTIVE DATE OF THE REPEAL PROVISIONS OF THE 1947 ACT, THE STATUS OF WAC APPOINTMENTS MADE UNDER THE ACT OF SEPTEMBER 22, 1941, WAS NO DIFFERENT FOR PURPOSES OF THOSE REPEAL PROVISIONS THAN OTHER APPOINTMENTS IN THE ARMY OF THE UNITED STATES MADE UNDER THE 1941 ACT. CONSEQUENTLY, IT IS OUR VIEW THAT, AS WAS THE CASE OF ALL OTHER APPOINTMENTS MADE UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, WAC APPOINTMENTS MADE UNDER THAT RESOLUTION WERE TERMINATED BY ITS REPEAL, NOTWITHSTANDING THE EFFECTIVE DATE OF SUCH REPEAL WAS DELAYED UNTIL JUNE 12, 1949.

THE PRIMARY PURPOSE OF SECTION 2 OF THE ACT OF AUGUST 25, 1959, WAS TO VALIDATE UNTIL MARCH 31, 1953,"ALL" APPOINTMENTS MADE AFTER DECEMBER 6, 1941, UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, THAT WERE TERMINATED BY ITS REPEAL AND WHICH WERE NOT EARLIER TERMINATED BY ADMINISTRATIVE ACTION OR SPECIFIC PROVISION OF LAW. SINCE THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THAT SECTION INDICATING THAT CONGRESS INTENDED TO EXCLUDE FROM ITS BENEFITS CERTAIN CLASSES OF OFFICERS, IT IS OUR VIEW THAT WAC APPOINTMENTS THAT ORIGINATED UNDER THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, AND NOT OTHERWISE TERMINATED BY ADMINISTRATIVE ACTION OR SOME PROVISION OF LAW OTHER THAN SECTION 110 OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, MAY BE CONSIDERED AS HAVING CONTINUED IN EFFECT UNTIL MARCH 31, 1953, UNDER THE 1959 ACT.