B-51049, JANUARY 9, 1946, 25 COMP. GEN. 512

B-51049, JANUARY 9, 1946, 25 COMP. GEN. 512

LUMP-SUM PAYMENTS TO AIR CORPS RESERVE OFFICERS - INCLUSION OF TIME UNDER ERRONEOUS COMMISSION IN THE ARMY OF THE UNITED STATES THE PROVISION OF SECTION 3 OF THE ARMY AVIATION CADET ACT OF JUNE 3, 1941, THAT EACH AVIATION CADET, UPON SUCCESSFUL COMPLETION OF HIS TRAINING,"SHALL BE COMMISSIONED AS A SECOND LIEUTENANT, AIR CORPS RESERVE," DOES NOT IN AND OF ITSELF CONSTITUTE SUCH CADETS AIR CORPS RESERVE OFFICERS FROM THE DATE THEY WERE ENTITLED TO BE SO APPOINTED, AND, THEREFORE, AN AVIATION CADET ERRONEOUSLY COMMISSIONED IN THE ARMY OF THE UNITED STATES AND THEREAFTER COMMISSIONED IN THE AIR CORPS RESERVE MAY NOT COUNT SERVICE IN THE ARMY OF THE UNITED STATES IN COMPUTING THE LUMP SUM AUTHORIZED BY SECTION 6 OF THE ACT, UPON RELEASE FROM ACTIVE DUTY, AS SERVICE AS AN AIR CORPS RESERVE OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JANUARY 9, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 11, 1945, AS FOLLOWS:

BECAUSE OF THE SAVING CLAUSE IN THE FIRST SENTENCE OF SECTION 2 OF THE ACT OF 8 JULY 1942 ( PUBLIC LAW 658--- 77TH CONGRESS) INSTRUCTIONS WERE ISSUED BY THE WAR DEPARTMENT THAT MEN WHO HAD ENLISTED OR HAD BEEN APPOINTED AS AVIATION CADETS PRIOR TO 8 JULY 1942 WOULD, UPON QUALIFYING, BE APPOINTED SECOND LIEUTENANT, AIR CORPS RESERVE. THAT WAS DONE TO ENABLE THEM TO QUALIFY FOR THE ADDITIONAL PAYMENT PROVIDED FOR BY SECTION 6 OF THE ACT OF 3 JUNE 1941 ( PUBLIC LAW 97--- 77TH CONGRESS.)

CAPTAIN KENNETH PAUL KIDD, 10873278 WAS APPOINTED AS AN AVIATION CADET 3 JULY 1942 AND UPON SUCCESSFUL COMPLETION OF TRAINING SHOULD HAVE BEEN APPOINTED SECOND LIEUTENANT, AIR CORPS RESERVE. INSTEAD HE WAS ERRONEOUSLY APPOINTED A TEMPORARY SECOND LIEUTENANT, ARMY OF THE UNITED STATES ON 10 MAY 1943, AND WAS PLACED ON ACTIVE DUTY IN THAT STATUS ON 10 MAY 1943. IN ORDER TO CORRECT THIS HE WAS APPOINTED SECOND LIEUTENANT, AIR CORPS RESERVE ON 31 OCTOBER 1944 AND WAS INFORMED THAT SUCH APPOINTMENT DID NOT AFFECT HIS CURRENT TEMPORARY ARMY OF THE UNITED STATES STATUS. HE ACCEPTED APPOINTMENT AS SECOND LIEUTENANT, AIR CORPS RESERVE, 1 DECEMBER 1944. ORDERS HAVE BEEN ISSUED CONFIRMING ASSIGNMENT TO ACTIVE DUTY AS SECOND LIEUTENANT, AIR CORPS RESERVE, EFFECTIVE 1 DECEMBER 1944.

A DECISION IS REQUESTED AS TO WHETHER OR NOT THIS OFFICER'S APPOINTMENT AS SECOND LIEUTENANT, AIR CORPS RESERVE, HIS ACCEPTANCE THEREOF, AND HIS ASSIGNMENT TO DUTY AS SECOND LIEUTENANT, AIR CORPS RESERVE, ARE SUFFICIENT TO ENABLE HIM TO QUALIFY, UPON RELIEF FROM ACTIVE DUTY, FOR THE ADDITIONAL PAYMENT PROVIDED FOR IN THE ACT OF 3 JUNE 1941.

SECTIONS 3 AND 6 OF THE ARMY AVIATION CADET ACT, APPROVED JUNE 3, 1941, 55 STAT. 239, 240, PROVIDE AS FOLLOWS:

SEC. 3. UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, MALE CITIZENS OF THE UNITED STATES MAY ENLIST AS AVIATION CADETS, AND ENLISTED MEN IN THE REGULAR ARMY MAY BE APPOINTED BY THE SECRETARY OF WAR AS AVIATION CADETS. EACH AVIATION CADET SHALL, AT THE TIME OF HIS ENLISTMENT OR APPOINTMENT AS SUCH, BE REQUIRED TO SIGN AN AGREEMENT THAT UPON HIS SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION AS AN AVIATION CADET HE WILL ACCEPT A COMMISSION AS SECOND LIEUTENANT, AIR CORPS RESERVE, AND WILL SERVE AS SUCH FOR A CONTINUOUS PERIOD OF THREE YEARS ON ACTIVE DUTY, UNLESS SOONER RELEASED: PROVIDED, THAT IN THE CASE OF A MINOR, SUCH AGREEMENT SHALL BE SIGNED WITH THE CONSENT OF HIS PARENTS OR GUARDIAN. UPON THE SUCCESSFUL COMPLETION OF SUCH PRESCRIBED COURSE OF TRAINING AND INSTRUCTION, EACH AVIATION CADET SHALL BE COMMISSIONED AS A SECOND LIEUTENANT, AIR CORPS RESERVE, AND UPON THE COMPLETION OF SUCH PERIOD OF THREE YEARS ON ACTIVE DUTY EACH SUCH SECOND LIEUTENANT SHALL BE PROMOTED TO THE GRADE OF FIRST LIEUTENANT, AIR CORPS RESERVE. THE SECRETARY OF WAR MAY AT ANY TIME DISCHARGE ANY AVIATION CADET OR RELEASE FROM ACTIVE DUTY ANY SUCH OFFICER IN THE AIR CORPS RESERVE.

SEC. 6. SECTION 2 OF THE ACT OF JUNE 16, 1936 (49 STAT. 1524), AS AMENDED, IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 2. WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS SUCH OFFICER, AND IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON HIS OWN REQUEST, OR AS A RESULT OF INEFFICIENT OR UNSATISFACTORY SERVICE AS DETERMINED BY THE SECRETARY OF WAR, SUCH LUMP-SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE. THE LUMP-SUM PAYMENTS HEREIN AUTHORIZED SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS MAY OTHERWISE BE ENTITLED TO RECEIVE.'

SECTION 2 OF THE FLIGHT OFFICER ACT, APPROVED JULY 8, 1942, 56 STAT. 649, TEMPORARILY SUSPENDING THE PROVISIONS OF THE SAID SECTION 3 OF THE ACT OF JUNE 3, 1941, READS, IN PERTINENT PART, AS FOLLOWS:

SEC. 2. THE PROVISIONS OF SECTION 3 OF THE ARMY AVIATION CADET ACT OF JUNE 3, 1941, ARE HEREBY SUSPENDED FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER EXCEPT AS TO ANY PERSON WHO HAS ENLISTED OR WHO HAS BEEN APPOINTED AS AN AVIATION CADET PRIOR TO THE DATE OF ENACTMENT OF THIS ACT. DURING SUCH PERIOD AND UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, MALE CITIZENS OF THE UNITED STATES MAY ENLIST AS AVIATION CADETS AND MEN HAVING AN ENLISTED STATUS IN THE ARMY OF THE UNITED STATES MAY BE APPOINTED BY THE SECRETARY OF WAR AS AVIATION CADETS. ALL ENLISTMENTS SHALL BE FOR THE PERIOD OF THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER UNLESS SOONER TERMINATED BY THE PRESIDENT. UPON SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION AND UNDER SUCH REGULATIONS WITH RESPECT TO SELECTION AS THE SECRETARY OF WAR MAY PRESCRIBE, EACH SUCH CADET SHALL BE COMMISSIONED AS A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941 ( PUBLIC LAW 252, SEVENTY- SEVENTH CONGRESS), OR APPOINTED AS A FLIGHT OFFICER IN THE ARMY OF THE UNITED STATES. * * *

THUS, UNDER SECTION 3 OF THE SAID ACT OF JUNE 3, 1941, EACH AVIATION CADET AT THE TIME OF HIS ENLISTMENT WAS REQUIRED TO SIGN AN AGREEMENT THAT UPON THE SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION HE WOULD ACCEPT A COMMISSION AS SECOND LIEUTENANT, AIR CORPS RESERVE, AND WOULD SERVE AS AN AIR CORPS RESERVE OFFICER FOR A CONTINUOUS PERIOD OF THREE YEARS ON ACTIVE DUTY, UNLESS SOONER RELEASED; AND IT WAS PROVIDED THAT UPON THE SUCCESSFUL COMPLETION OF SUCH PRESCRIBED COURSE OF TRAINING AND INSTRUCTION, EACH AVIATION CADET "SHALL BE COMMISSIONED AS A SECOND LIEUTENANT, AIR CORPS RESERVE.' WHILE SECTION 2 OF THE SAID FLIGHT OFFICER ACT OF JULY 8, 1942, TEMPORARILY SUSPENDED SUCH PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 3, 1941, AND PROVIDED, IN LIEU THEREOF, THAT DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER AVIATION CADETS, UPON SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING, SHALL BE COMMISSIONED AS SECOND LIEUTENANTS IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, OR APPOINTED FLIGHT OFFICERS IN THE ARMY OF THE UNITED STATES, THE SECTION EXPRESSLY EXCEPTED FROM SUCH SUSPENSION PROVISION ANY PERSON WHO HAD ENLISTED OR HAD BEEN APPOINTED AN AVIATION CADET PRIOR TO THE DATE OF THE ENACTMENT THEREOF, THAT IS, PRIOR TO JULY 8, 1942. IN THE PRESENT CASE IT APPEARS THAT CAPTAIN KIDD WAS APPOINTED AN AVIATION CADET ON JULY 3, 1942, AND, THEREFORE, HE WAS ELIGIBLE FOR APPOINTMENT AS A SECOND LIEUTENANT IN THE AIR CORPS RESERVE UPON SUCCESSFUL COMPLETION OF THE COURSE OF TRAINING AND INSTRUCTION AS AN AVIATION CADET. IT APPEARS FROM YOUR LETTER, HOWEVER, THAT, UPON COMPLETION OF SUCH TRAINING COURSE, HE WAS ERRONEOUSLY APPOINTED DIRECTLY IN THE ARMY OF THE UNITED STATES ON MAY 10, 1043--- PRESUMABLY UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728--- AND THAT HE ACTUALLY WAS NOT APPOINTED IN THE AIR CORPS RESERVE UNTIL OCTOBER 31, 1944. HENCE, THE QUESTION ARISES AS TO WHETHER HE WILL BE ELIGIBLE, UPON RELEASE FROM ACTIVE DUTY, FOR THE LUMP-SUM PAYMENT AUTHORIZED UNDER SECTION 6 OF THE ARMY AVIATION CADET ACT OF JUNE 3, 1941, FOR AIR CORPS RESERVE OFFICERS OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS "SUCH OFFICER.'

INASMUCH AS SECTION 6 OF THE SAID ACT OF JUNE 3, 1941, REQUIRES ACTIVE SERVICE AS AN AIR CORPS RESERVE OFFICER TO BECOME ELIGIBLE FOR THE LUMP- SUM PAYMENT AUTHORIZED THEREIN (24 COMP. GEN. 423), AND SINCE IT APPEARS THAT CAPTAIN KIDD WAS NOT APPOINTED AN AIR CORPS RESERVE OFFICER UNTIL OCTOBER 31, 1944, AND NEITHER ACCEPTED THE COMMISSION NOR WAS ASSIGNED TO ACTIVE DUTY AS AN AIR CORPS RESERVE OFFICER UNTIL DECEMBER 1, 1944, HIS SERVICE PRIOR TO DECEMBER 1, 1944, MAY NOT BE REGARDED AS ACTIVE SERVICE AS AN AIR CORPS RESERVE OFFICER, UNLESS IT MAY BE CONSIDERED THAT THE PROVISION IN THE STATUTE THAT "UPON THE SUCCESSFUL COMPLETION OF SUCH PRESCRIBED COURSE OF TRAINING AND INSTRUCTION, EACH AVIATION CADET SHALL BE COMMISSION AS A SECOND LIEUTENANT, AIR CORPS RESERVE," HAD THE EFFECT OF CONSTITUTING HIM AN OFFICER IN THE AIR CORPS RESERVE FROM THE DATE HE WAS ENTITLED TO BE SO APPOINTED. A SOMEWHAT SIMILAR PROPOSITION HAS BEEN CONSIDERED IN CASES INVOLVING THE STATUTORY RIGHT OF OFFICERS TO PROMOTION UPON THE HAPPENING OF SOME SPECIFIED CONTINGENCY. THUS, IN AN OPINION DATED APRIL 19, 1906 (25 OP. ATTY. GEN. 591), ATTORNEY GENERAL MOODY CONSIDERED THE PRINCIPLE WITH RESPECT TO A STATUTE THAT REQUIRED CERTAIN VACANCIES IN THE INSPECTOR GENERAL'S DEPARTMENT OF THE ARMY TO BE FILLED BY PROMOTION ACCORDING TO SENIORITY OF OFFICERS IN THAT DEPARTMENT. THE OPINION IS, IN PART, AS FOLLOWS:

* * * MAJOR CHAMBERLAIN, BEING THE SENIOR OFFICER OF THAT GRADE, WAS THEREFORE OF RIGHT ENTITLED TO BE PROMOTED TO THE VACANCY OCCURRING IN THE NEXT HIGHEST GRADE ON MARCH 1, 1901. BUT I THINK THE RIGHT CANNOT BE HELD TO HAVE VESTED AND BECOME COMPLETE UNTIL HIS ACTUAL APPOINTMENT ON MARCH 11, 1901. THE LAW DID NOT OPERATE OF ITSELF TO MAKE HIM A LIEUTENANT- COLONEL ON THE DAY HE BECAME ENTITLED TO THE ADVANCEMENT; IT WAS NECESSARY THAT THERE SHOULD BE AN EXERCISE OF THE APPOINTING POWER TO CONFER THE OFFICE UPON HIM, AND UNTIL HIS COMMISSION WAS SIGNED BY THE PRESIDENT THE OFFICE DID NOT VEST. A SIMILAR VIEW HAS ALWAYS BEEN TAKEN BY MY PREDECESSORS. IN 13 OPINION., 13, THE ATTORNEY-GENERAL HELD, RESPECTING CERTAIN ACTS AND ARMY REGULATIONS REQUIRING VACANCIES IN ESTABLISHED REGIMENTS AND CORPS TO THE RANK OF COLONEL TO BE FILLED BY PROMOTION ACCORDING TO SENIORITY, THAT THESE LAWS AND REGULATIONS PRESCRIBED ONLY THE MODE IN WHICH VACANCIES SHOULD BE FILLED; "THEY DO NOT CONFER UPON THE OFFICER NEXT IN THE ORDER OF SUCCESSION ANY RIGHT TO THE VACANT PLACE. THIS HE CAN ACQUIRE ONLY BY VIRTUE OF A NEW COMMISSION.' AND IN 13 OPINION., 44, IT WAS HELD THAT THE RIGHT TO AN OFFICE IN THE ARMY IS NOT A VESTED ONE UNTIL THE COMMISSION IS SIGNED BY THE PRESIDENT. (SEE, ALSO, 4 OPINION., 217; 6 ID., 87; 9 ID., 297; MARBURY V. MADISON, 1 CR., 137, 157.) AND, IN AN OPINION DATED SEPTEMBER 22, 1911, 29 OP. ATTY. GEN. 254, 256, IN REPLY TO A CONTENTION THAT THE TEN EXISTING STATUTORY PROVISIONS RESPECTING PROMOTIONS IN THE ARMY BESTOWED UPON THE SENIOR OFFICER NEXT IN LINE FOR PROMOTION A VESTED RIGHT TO PROMOTION AT THE MOMENT A VACANCY OCCURS, IRRESPECTIVE OF WHETHER THE APPOINTMENT TO THAT GRADE IS MADE BY THE PRESIDENT OR CONFIRMED BY THE SENATE, IT WAS STATED THAT---

* * * PROMOTION IN THE ARMY IS, IN THE LAST ANALYSIS, MERELY AN APPOINTMENT TO A HIGHER OFFICE THEREIN; AND THIS FACT IS ILLUSTRATED AND CONFIRMED BY THE LONG ESTABLISHED PRACTICE OF SUBMITTING NOMINATIONS FOR PROMOTION IN THE ARMY TO THE SENATE FOR CONFIRMATION AND OF THEREAFTER ISSUING A COMMISSION FOR THE HIGHER OFFICE. PROMOTION, THEREFORE, HAVING REGARD TO ITS REAL NATURE, IS AS MUCH OR AS LITTLE WITHIN THE PRESIDENT'S CONSTITUTIONAL POWER OF APPOINTMENT AS AN ORIGINAL APPOINTMENT, AND IS SUBJECT, IN SO FAR AS THAT MATTER IS CONCERNED, TO THE SAME CONSIDERATIONS. NOW APPOINTMENT IN THE ARMY AS IN ANY OTHER DEPARTMENT OF THE GOVERNMENT IS AN EXECUTIVE, NOT LEGISLATIVE, ACT ( STORY ON CONST. VOL. II, SEC. 1526; FEDERALIST NO. 76; WYMAN ON ADMINISTRATIVE LAW, SEC. 48), AND THE PROVISIONS OF THE CONSTITUTION ARE SATISFIED BY GIVING CONGRESS THE POWER TO MAKE THE GENERAL RULES PRESCRIBING THE ORGANIZATION AND GOVERNMENT OF THE ARMY, LEAVING TO THE PRESIDENT, WITH THE ADVICE AND CONSENT OF THE SENATE, THE DESIGNATION OF THE PARTICULAR INDIVIDUALS WHO ARE TO FILL THE OFFICE CREATED BY CONGRESS THEREIN.

CONGRESS MAY POINT OUT THE GENERAL CLASS OF INDIVIDUALS FROM WHICH AN APPOINTMENT MUST BE MADE, IF MADE AT ALL, BUT IT CAN NOT CONTROL THE PRESIDENT'S DISCRETION TO THE EXTENT OF COMPELLING HIM TO COMMISSION A DESIGNATED INDIVIDUAL. ( PRESIDENT HARRISON'S VETO, FEB. 26, 1891, MESSAGES OF PRESIDENTS, VOL. 9, P. 138; ATTORNEY GENERAL BREWSTER'S OPINION IN FITZ JOHN PORTER'S CASE, 18 OP. 18.) MANDAMUS WOULD NOT LIE AGAINST THE PRESIDENT IN SUCH A CASE. THE MATTER IS REALLY CONCLUDED, IN SO FAR AS THIS DEPARTMENT IS CONCERNED, BY ATTORNEY GENERAL MOODY'S OPINION IN COL. CHAMBERLIN'S CASE (25 OP. 591, RELYING ON 13 OP. 13). FOLLOWS, THEREFORE, THAT, WHILE PROMOTION IS A "RIGHT" INHERING IN THE OFFICER NEXT IN LINE OF PROMOTION AND PRACTICALLY ALMOST CERTAIN TO VEST IN HIM, IT IS YET INCHOATE IN ITS NATURE AND ITS LEGAL VESTING IS SUBJECT TO THE FUNDAMENTAL CONDITION OF AN APPOINTMENT BY THE PRESIDENT * * * .

IN VIEW OF THE CONCLUSIONS REACHED IN THOSE OPINIONS RESPECTING THE LEGAL EFFECT OF STATUTES DIRECTING THE APPOINTMENT OR PROMOTION OF OFFICERS UPON THE HAPPENING OF SPECIFIC CONTINGENCIES, THAT IS, THAT THE HAPPENING OF THE CONTINGENCY DOES NOT IN AND OF ITSELF OPERATE TO VEST IN THE OFFICER THE BENEFITS OF THE STATUTE UNTIL SUCH TIME AS THERE HAS BEEN AN APPOINTMENT TO THE OFFICE BY THE PRESIDENT, I AM CONSTRAINED TO HOLD THAT THE PROVISIONS OF THE ARMY AVIATION CADET ACT OF 1941 LEGALLY MAY NOT BE VIEWED AS HAVING HAD THE EFFECT OF MAKING THE OFFICER HERE INVOLVED, UPON COMPLETION OF THE COURSE OF INSTRUCTION AND TRAINING AS AN AVIATION CADET, A COMMISSIONED OFFICER IN THE AIR CORPS RESERVE, ALTHOUGH HE WAS ENTITLED, UNDER THE STATUTE, TO BE SO APPOINTED. SINCE SECTION 6 OF THE SAID ACT AUTHORIZES PAYMENT OF THE LUMP SUM THEREIN PROVIDED FOR AIR CORPS RESERVE OFFICERS, ONLY, AND SPECIFICALLY RESTRICTS SUCH LUMP-SUM PAYMENT TO PERIODS OF ACTIVE SERVICE "AS SUCH OFFICER," AND AS CAPTAIN KIDD DID NOT ACCEPT HIS APPOINTMENT IN THE AIR CORPS RESERVE AND BEGIN ACTIVE DUTY THEREUNDER UNTIL DECEMBER 1, 1944, IT MUST BE CONCLUDED THAT SERVICE PERFORMED BY HIM PRIOR TO THAT DATE AS AN OFFICER OF THE ARMY OF THE UNITED STATES, UNDER THE CIRCUMSTANCES HERE INVOLVED, MAY NOT BE COUNTED IN THE COMPUTATION OF SUCH LUMP-SUM PAYMENT. BUT, OF COURSE, SERVICE AS AN AIR CORPS RESERVE OFFICER SUBSEQUENT TO THE DATE OF SUCH ACCEPTANCE MAY BE COUNTED IN COMPUTING THE LUMP-SUM PAYMENT OTHERWISE DUE HIM WHEN RELEASED FFROM ACTIVE DUTY.