B-158203, MAR. 10, 1966

B-158203: Mar 10, 1966

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DEPARTMENT OF THE AIR FORCE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 16. YOUR LETTER AND ENCLOSURES WERE FORWARDED HERE DECEMBER 16. THAT HE WAS HONORABLY DISCHARGED FEBRUARY 7. THAT HE WAS RELEASED FROM ACTIVE DUTY AND DISCHARGED FROM HIS COMMISSION AS FIRST LIEUTENANT. 1949 (ACTIVE DUTY COMMENCING THAT DAY) AND HIS PRESENT ACTIVE DUTY RANK IS SHOWN AS LIEUTENANT COLONEL (T). THE PERIOD OF HIS SERVICE AS A CADET AT THE MILITARY ACADEMY IS NOT CREDITABLE IN COMPUTING COLONEL POULSON'S LENGTH OF SERVICE FOR ANY PURPOSE AS AN OFFICER OF THE AIR FORCE. 10 U.S.C. 8682. IT IS ASSERTED. THAT THIS SAME PERIOD SHOULD HAVE BEEN INCLUDED IN ESTABLISHING THE RATE OF HIS ACTIVE DUTY PAY AS A COMMISSIONED OFFICER OF THE UNITED STATES AIR FORCE FOLLOWING HIS GRADUATION FROM THE MILITARY ACADEMY.

B-158203, MAR. 10, 1966

TO ACCOUNTING AND FINANCE OFFICER THROUGH DIRECTORATE OF ACCOUNTING AND FINANCE HEADQUARTERS, DEPARTMENT OF THE AIR FORCE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 16, 1965, AND ENCLOSURES, REQUESTING DECISION CONCERNING THE ARMY OF THE UNITED STATES (COMMISSIONED OFFICER) STATUS OF LIEUTENANT COLONEL JOHN A. POULSON, USAF, 18512A, DURING THE PERIOD HE ATTENDED THE U.S. MILITARY ACADEMY. YOUR LETTER AND ENCLOSURES WERE FORWARDED HERE DECEMBER 16, 1965, UNDER AIR FORCE REQUEST NO. 879 ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ATTACHMENT NO. 1 (RECEIVED AS AN ENCLOSURE WITH YOUR LETTER) CONSISTS OF MILITARY PAY ORDER NO. 13 DATED AUGUST 12, 1965, AND DD FORM 13, AN OFFICIAL STATEMENT OF SERVICE, DATED NOVEMBER 6, 1964. THE OFFICIAL STATEMENT OF SERVICE DISCLOSES THAT COLONEL POULSON ENLISTED IN THE ENLISTED RESERVE CORPS ON NOVEMBER 28, 1942; THAT HE WAS HONORABLY DISCHARGED FEBRUARY 7, 1944; THAT HE ACCEPTED A COMMISSION THE NEXT DAY AS SECOND LIEUTENANT, ARMY OF THE UNITED STATES; THAT HE BECAME A FIRST LIEUTENANT, ARMY OF THE UNITED STATES ON AUGUST 22, 1944; AND THAT HE WAS RELEASED FROM ACTIVE DUTY AND DISCHARGED FROM HIS COMMISSION AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES, ON JULY 1, 1945, TO ATTEND THE U.S. MILITARY ACADEMY FROM JULY 2, 1945, TO JUNE 2, 1949, INCLUSIVE, A PERIOD OF 3 YEARS, 11 MONTHS AND 1 DAY. HE ACCEPTED APPOINTMENT IN THE GRADE OF SECOND LIEUTENANT IN THE UNITED STATES AIR FORCE ON JUNE 3, 1949 (ACTIVE DUTY COMMENCING THAT DAY) AND HIS PRESENT ACTIVE DUTY RANK IS SHOWN AS LIEUTENANT COLONEL (T), UNITED STATES AIR FORCE.

THE PERIOD OF HIS SERVICE AS A CADET AT THE MILITARY ACADEMY IS NOT CREDITABLE IN COMPUTING COLONEL POULSON'S LENGTH OF SERVICE FOR ANY PURPOSE AS AN OFFICER OF THE AIR FORCE. 10 U.S.C. 8682. IT IS ASSERTED, HOWEVER, THAT THIS SAME PERIOD SHOULD HAVE BEEN INCLUDED IN ESTABLISHING THE RATE OF HIS ACTIVE DUTY PAY AS A COMMISSIONED OFFICER OF THE UNITED STATES AIR FORCE FOLLOWING HIS GRADUATION FROM THE MILITARY ACADEMY, ON THE BASIS THAT HIS COMMISSION AS AN OFFICER IN THE ARMY OF THE UNITED STATES REMAINED IN EFFECT DURING THAT PERIOD. BY ADJUTANT GENERAL'S LETTER ORDER OF AUGUST 6, 1945, THE OFFICER (THEN A CADET) WAS ADVISED AS FOLLOWS:

"YOUR STATUS AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES WAS TERMINATED 1 JULY 1945 BY YOUR ADMISSION TO THE UNITED STATES MILITARY ACADEMY, 2 JULY 1945.

"BY ORDER OF THE SECRETARY OF WAR:

WM. H.O-CONNOR

ADJUTANT GENERAL"

THE ADJUTANT GENERAL'S LETTER ORDER OF AUGUST 6, 1945, DOES NOT EXPRESSLY RECITE THAT IT WAS ISSUED BY DIRECTION OF THE PRESIDENT AND IT IS URGED THAT FOR THAT REASON THE OFFICER'S ARMY OF THE UNITED STATES COMMISSION MUST BE CONSIDERED TO HAVE CONTINUED IN EFFECT.

IT SEEMS CLEAR THAT COLONEL POULSON'S APPOINTMENT ON FEBRUARY 8, 1944, AS A COMMISSIONED OFFICER (SECOND LIEUTENANT) IN THE ARMY OF THE UNITED STATES WAS EFFECTED UNDER AUTHORITY OF THE JOINT RESOLUTION APPROVED SEPTEMBER 22, 1941, CH. 414, 55 STAT. 728, AS AMENDED BY THE ACT OF JULY 7, 1943, CH. 191, 57 STAT. 380, PROVIDING IN PERTINENT PART:

"THAT DURING THE PRESENT EMERGENCY, TEMPORARY APPOINTMENTS AS OFFICERS IN THE ARMY OF THE UNITED STATES MAY BE MADE, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, FROM AMONG QUALIFIED PERSONS WITHOUT APPOINTING SUCH PERSONS AS OFFICERS IN ANY PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES. ALL PERSONS SO APPOINTED AS OFFICERS SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES AND MAY BE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES TO SERVE THEREIN FOR SUCH PERIODS OF TIME AS THE PRESIDENT MAY PRESCRIBE. 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: PROVIDED, THAT ANY APPOINTMENT MADE UNDER THE PROVISIONS OF THIS ACT MAY BE VACATED AT ANY TIME BY THE PRESIDENT AND, IF NOT SOONER VACATED, SHALL CONTINUE DURING THE PRESENT EMERGENCY AND SIX MONTHS THEREAFTER: PROVIDED FURTHER, THAT ANY PERSON APPOINTED AS AN OFFICER IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THIS ACT SHALL RECEIVE THE SAME PAY AND ALLOWANCES AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE: * * *.'

THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, WAS REPEALED EFFECTIVE JULY 1, 1948 (WITH AN EXCEPTION NOT PERTINENT HERE) BY SECTION 2A OF THE JOINT RESOLUTION OF JULY 25, 1947, CH. 327, 61 STAT. 451. SEE 35 COMP. GEN. 191 AND DECISION OF JUNE 3, 1959, IN ABT V. UNITED STATES, 146 CT.CL. 205 (1959).

SECTION 216 R.S., 5 U.S.C. 190 (1940 ED.), IN EFFECT DURING THE PERIOD IN QUESTION (REPEALED AUGUST 10, 1956, 70A STAT. 641, AND REPLACED BY 10 U.S.C. 3012/B) AND 8012/B) ( PROVIDED:

"THE SECRETARY OF WAR SHALL PERFORM SUCH DUTIES AS SHALL FROM TIME TO TIME BE ENJOINED ON OR INTRUSTED TO HIM BY THE PRESIDENT RELATIVE TO MILITARY COMMISSIONS, THE MILITARY FORCES, THE WARLIKE STORES OF THE UNITED STATES, OR TO OTHER MATTERS RESPECTING MILITARY AFFAIRS; AND HE SHALL CONDUCT THE BUSINESS OF THE DEPARTMENT IN SUCH MANNER AS THE PRESIDENT SHALL DIRECT.'

IT WAS HELD IN BILLINGS V. UNITED STATES, 23 CT.CL. 166, 176 (1888) THAT UNDER THE ABOVE-QUOTED PROVISIONS OF LAW:

"THE ORDERS OF THE SECRETARY OF WAR, AND OTHER OFFICERS SUBORDINATE TO HIM, ACTING BY HIS AUTHORITY, IN THE BUSINESS OF THE DEPARTMENT, ARE PRESUMED TO HAVE BEEN ISSUED IN THE MANNER DIRECTED BY THE PRESIDENT, EXCEPT WHEN SUBJECT TO SPECIAL REGULATIONS OF STATUTE LAW, OR WHERE DUTIES OF A PERSONAL OR JUDICIAL CHARACTER ARE ENTRUSTED TO THE PRESIDENT, AS IN THE APPROVAL OR DISAPPROVAL OF THE FINDINGS OF A COURT-MARTIAL AS HELD IN RUNKLE'S CASE (122 U.S. 543 (1887) ).'

THE DECISION IN RUNKLE V. UNITED STATES RELATED TO AN OFFICER OF THE ARMY WHO HAD BEEN FOUND GUILTY BY COURT-MARTIAL AND SENTENCED TO BE DISMISSED FROM THE SERVICE. THAT SENTENCE UNDER THE PROVISIONS OF THE THEN 65TH ARTICLE OF WAR COULD NOT BECOME EFFECTIVE UNTIL APPROVED BY THE PRESIDENT. THE DISMISSAL WAS APPROVED BY THE SECRETARY OF WAR BUT NOT BY THE PRESIDENT. THE SUPREME COURT HELD THAT THE SENTENCE OF DISMISSAL COULD NOT BECOME OPERATIVE UNTIL APPROVED BY THE PRESIDENT AND THAT AS SUCH APPROVAL WAS NOT ADMINISTRATIVE BUT JUDICIAL IN CHARACTER IT COULD NOT BE DELEGATED TO THE SECRETARY OF WAR. A FEW YEARS LATER, IN A DECISION UPHOLDING AN ORDER OF THE SECRETARY OF WAR AS CONSTITUTING "THE ACTION OF THE PRESIDENT" AND DISTINGUISHING THE RUNKLE CASE, THE SUPREME COURT IN UNITED STATES V. FLETCHER, 148 U.S. 84, 90 (1893), STATED:

"REFERENCE TO THE REPORT OF THAT CASE (RUNKLE V. UNITED STATES) SHOWS THAT THE CIRCUMSTANCES WERE SO EXCEPTIONAL AS TO RENDER IT HARDLY A SAFE PRECEDENT IN ANY OTHER.'

IN ARMY REGULATIONS 1-15, DATED AUGUST 9, 1944, IT IS PROVIDED IN PARAGRAPH LB:

"* * * UNDER THE LAW AND DECISIONS OF THE SUPREME COURT, THE ACTS OF THE SECRETARY OF WAR ARE THE PRESIDENT'S ACTS, AND HIS DIRECTIONS AND ORDERS ARE THE PRESIDENT'S DIRECTIONS AND ORDERS * * *.'

THERE IS NOTHING IN THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, WHICH CAN BE CONSIDERED AS HAVING IMPOSED A JUDICIAL DUTY UPON THE PRESIDENT WITH RESPECT TO VACATING AN APPOINTMENT MADE THEREUNDER IN THE ARMY OF THE UNITED STATES. COMPARE BEARD V. STAHR, 200 F.SUPP. 766 (1961), IN WHICH IT WAS POINTED OUT THAT "SUPERVISION AND CONTROL OVER THE SELECTION, APPOINTMENT AND DISMISSAL OF OFFICERS (IN THE ARMED FORCES) ARE NOT JUDICIAL FUNCTIONS.' ALSO, THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, DID NOT IMPOSE A SPECIFIC STATUTORY REQUIREMENT THAT THE PRESIDENT MUST HAVE ACTED PERSONALLY IN THE MATTER. IT IS OUR VIEW THAT THE ADJUTANT GENERAL'S LETTER ORDER OF AUGUST 6, 1945, CONSTITUTED ADEQUATE LEGAL NOTICE TO COLONEL POULSON THAT HIS COMMISSIONED OFFICER STATUS IN THE ARMY OF THE UNITED STATES HAD BEEN TERMINATED ON JULY 1, 1945, THE SAME DATE THAT THE OFFICIAL STATEMENT OF SERVICE IN HIS CASE SHOWS THAT HE WAS RELEASED FROM ACTIVE DUTY AND DISCHARGED TO ATTEND THE UNITED STATES MILITARY ACADEMY.

COLONEL POULSON IS SHOWN TO HAVE ENTERED ON ACTIVE DUTY AS A SECOND LIEUTENANT IN THE UNITED STATES AIR FORCE ON JUNE 3, 1949, AND THE AIR FORCE REGISTER OF JANUARY 1, 1950, SHOWS (AT PAGE 161) HIS PAY ENTRY DATE TO BE OCTOBER 29, 1946, COMPUTED WITHOUT CREDIT FOR THE PERIOD JULY 2, 1945, TO JUNE 2, 1949, INCLUSIVE. AS PREVIOUSLY INDICATED, HE HAS REMAINED ON ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE UNITED STATES AIR FORCE FROM JUNE 3, 1949, TO DATE AND YET, SO FAR AS THE RECORD BEFORE US SHOWS, IT WAS NOT UNTIL AFTER 16 YEARS OF ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE REGULAR AIR FORCE THAT HE MADE ANY INQUIRY OR RAISED ANY QUESTION ABOUT THE STATUS" OF HIS TEMPORARY APPOINTMENT AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES DURING THE PERIOD HE ATTENDED THE UNITED STATES MILITARY ACADEMY. DURING ALL THESE YEARS HE HAD MADE NO CLAIM FOR INCREASED LONGEVITY PAY AND NO REASON IS GIVEN FOR HIS LONG SILENCE IN THE MATTER. IN THE CIRCUMSTANCES, THERE IS A STRONG PRESUMPTION THAT HIS TEMPORARY OFFICER STATUS WAS TERMINATED BY PROPER ADMINISTRATIVE ACTION ON JULY 1, 1945, AND SUCH PRESUMPTION MAY BE OVERCOME ONLY BY CLEAR EVIDENCE TO THE CONTRARY. IT WOULD NOT BE REASONABLE TO DECLARE THE LETTER ORDER OF AUGUST 6, 1945, TO BE ABSOLUTELY VOID AND OF NO EFFECT AT THIS LATE DATE SOLELY BY REASON OF THE FACT THAT THE WORDS "BY DIRECTION OF THE PRESIDENT" DO NOT APPEAR THEREIN, PARTICULARLY SINCE THE ADMINISTRATIVE RECORDS AND ACTION IN HIS CASE HAVE FOR MANY YEARS SHOWN THAT HIS AUS STATUS TERMINATED ON JULY 1, 1945. THE SITUATION IN THAT RESPECT IS BASICALLY DIFFERENT FROM THAT CONSIDERED BY THIS OFFICE IN DECISION OF JUNE 10, 1953, 32 COMP. GEN. 548, WHERE NO ACTION WHATEVER, ADMINISTRATIVE OR OTHERWISE, HAD BEEN TAKEN TO TERMINATE THE AUS STATUS DURING THE PERIOD OF SERVICE AS A CADET AT THE U.S. MILITARY ACADEMY.

THE ADJUTANT GENERAL'S LETTER ORDER OF AUGUST 6, 1945, DOES NOT DISCLOSE ALL THE FACTS AND CIRCUMSTANCES RELATING TO ITS ISSUANCE AND IT DOES NOT NEGATIVE THE POSSIBILITY THAT OTHER INFORMATION NOT NOW AVAILABLE MAY HAVE EXISTED WHICH SHOULD BE CONSIDERED IN DETERMINING WHETHER COLONEL POULSON'S STATUS AS A FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES WAS EFFECTIVELY TERMINATED BY PROPER AUTHORITY. HENCE, ON THE BASIS OF THE RECORD PRESENTED THIS OFFICE MAY NOT CONCLUDE THAT COLONEL POULSON'S ARMY OF THE UNITED STATES STATUS WAS NOT IN FACT TERMINATED ON JULY 1, 1945. ACCORDINGLY, PAYMENT ON THE MILITARY PAY ORDER RECEIVED WITH YOUR LETTER IS NOT AUTHORIZED AND SUCH ORDER, TOGETHER WITH THE PAPERS ATTACHED THERETO, WILL BE RETAINED HERE.