B-55823, JUNE 19, 1947, 26 COMP. GEN. 940

B-55823: Jun 19, 1947

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INSOFAR AS THE GOVERNMENT IS CONCERNED. HAD SERVED WITH THE GUERRILLA FORCES IN THE PHILIPPINES AND WITH THE PHILIPPINE ARMY AND WHOSE PAY FOR SUCH SERVICES WAS CHARGED. 1947: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5. AS FOLLOWS: THERE IS FORWARDED HEREWITH SEPARATE FILES OF CORRESPONDENCE RELATING TO THE PAY STATUS OF ANGEL FONTILLAS. IT WILL BE OBSERVED FROM THE ENCLOSED CORRESPONDENCE THAT FONTILLAS AND CANAGAS ARE NOW COMMISSIONED OFFICERS ON ACTIVE DUTY IN THE PHILIPPINE ARMY. NEITHER FONTILLAS NOR CANAGAS WAS CALLED TO ACTIVE DUTY IN THE NAVY DURING THE PRESENT WAR. IT IS REPORTED THAT FONTILLAS RECEIVED FIVE MONTHS PAY AS A CAPTAIN IN THE PHILIPPINE ARMY FOR THE PERIOD FEBRUARY 1.

B-55823, JUNE 19, 1947, 26 COMP. GEN. 940

NAVY - NAVAL RESERVISTS - SERVICE WITH GUERRILLA AND PHILIPPINE ARMY FORCES; RETIRED OR RETAINER PAY DURING SUCH SERVICE TRANSFERRED MEMBERS OF THE FLEET RESERVE WHO HAD SERVED WITH THE GUERRILLA FORCES IN THE PHILIPPINES AND LATER WITH THE PHILIPPINE ARMY MAY NOT BE REGARDED, BY REASON OF THE PROHIBITION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938 AGAINST NAVAL RESERVISTS BEING MEMBERS OF OTHER MILITARY OR NAVAL ORGANIZATIONS, AS HAVING RELINQUISHED THEIR DE JURE STATUS AS NAVAL RESERVISTS; RATHER, INSOFAR AS THE GOVERNMENT IS CONCERNED, SUCH RESERVISTS MAY BE CONSIDERED AS HAVING HAD MERELY A DE FACTO STATUS IN RESPECT OF THEIR SERVICE WITH THE PHILIPPINE ARMY. TRANSFERRED MEMBERS OF THE FLEET RESERVE WHO, WHILE IN AN INACTIVE STATUS, HAD SERVED WITH THE GUERRILLA FORCES IN THE PHILIPPINES AND WITH THE PHILIPPINE ARMY AND WHOSE PAY FOR SUCH SERVICES WAS CHARGED, DIRECTLY OR INDIRECTLY, TO APPROPRIATED FUNDS MADE AVAILABLE TO THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINES FOR THE EXPENSES OF MAINTENANCE AND OPERATION OF ITS ARMY MAY NOT BE REGARDED AS ENTITLED TO PAYMENT OR RETIRED OR RETAINER PAY FOR ANY PERIOD DURING WHICH THEY RECEIVED PAY FOR SERVICES WITH THE GUERRILLAS OR WITH THE PHILIPPINE ARMY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JUNE 19, 1947:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5, 1946, AS FOLLOWS:

THERE IS FORWARDED HEREWITH SEPARATE FILES OF CORRESPONDENCE RELATING TO THE PAY STATUS OF ANGEL FONTILLAS, MUSICIAN, FIRST CLASS, F-4-C, USNR, AND LAZARO CANAGAS, OFFICER'S STEWARD, FIRST CLASS, USN, RETIRED.

IT WILL BE OBSERVED FROM THE ENCLOSED CORRESPONDENCE THAT FONTILLAS AND CANAGAS ARE NOW COMMISSIONED OFFICERS ON ACTIVE DUTY IN THE PHILIPPINE ARMY, HAVING SERVED IN THAT CAPACITY SINCE THE REOCCUPATION OF THE PHILIPPINE ISLANDS BY THE AMERICAN FORCES, AND THAT PRIOR TO SUCH REOCCUPATION THEY BOTH HELD COMMISSIONS IN THE GUERRILLA FORCES OF THE PHILIPPINE ARMY. NEITHER FONTILLAS NOR CANAGAS WAS CALLED TO ACTIVE DUTY IN THE NAVY DURING THE PRESENT WAR.

IT IS REPORTED THAT FONTILLAS RECEIVED FIVE MONTHS PAY AS A CAPTAIN IN THE PHILIPPINE ARMY FOR THE PERIOD FEBRUARY 1, 1945, TO JUNE 30, 1945, WHILE IT APPEARS THAT CANAGAS HAS DRAWN NO PAY FROM THE PHILIPPINE ARMY DURING HIS PERIOD OF SERVICE THEREIN.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C., 1940 ED. 853B) CONTAINS THE FOLLOWING PROVISO:

"* * * PROVIDED FURTHER, THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA: * * *.'

IT APPEARS TO THE NAVY DEPARTMENT THAT FONTILLAS AND CANAGAS, NOT HAVING BEEN CALLED TO ACTIVE DUTY IN THE NAVY, HAD NO OTHER ALTERNATIVE, IN THE FACE OF THE INVASION OF THE PHILIPPINE ISLANDS BY THE JAPANESE, EXCEPT TO JOIN THE GUERRILLA FORCES IN DEFENSE OF THEIR HOME LAND. MOREOVER, IT IS BELIEVED THAT A GUERRILLA FORCE MAY REASONABLY BE CONSTRUED AS NOT BEING A MILITARY OR NAVAL ORGANIZATION WITHIN THE PURVIEW OF THE ABOVE QUOTED LAW.

SUBSEQUENT TO THE REOCCUPATION OF THE PHILIPPINES BY THE AMERICAN FORCES, ALL RECOGNIZED GUERRILLA ORGANIZATIONS WERE INDUCTED INTO THE PHILIPPINE ARMY, OPERATING UNDER THE GENERAL SUPERVISION OF THE COMMANDING GENERAL, SOUTHWEST PACIFIC FORCES. IT THUS APPEARS THAT THE STATUS OF FONTILLAS AND CANAGAS IN THE PHILIPPINE ARMY WAS CREATED BY OPERATION OF LAW OR BY ORDERS FROM SUPERIOR AUTHORITY. IN VIEW OF THE ABOVE, AND PARTICULARLY SINCE FONTILLAS AND CANAGAS WERE NEVER DISCHARGED FROM THE NAVY, IT IS CONSIDERED THAT THEIR NAVAL STATUS WAS NOT AFFECTED BY REASON OF THEIR PURPORTED MEMBERSHIP IN THE GUERRILLA FORCES OR IN THE PHILIPPINE ARMY.

YOUR DECISION IS REQUESTED AS TO WHETHER CANAGAS IS ENTITLED TO PAYMENT OF RETAINER PAY AS A TRANSFERRED MEMBER OF THE FLEET RESERVE DURING THE PERIOD HE SERVED AS A COMMISSIONED OFFICER (1) IN THE GUERRILLA FORCES OF THE PHILIPPINE ISLANDS AND (2) FOR THE PERIOD DURING WHICH HE HELD A COMMISSION IN THE PHILIPPINE ARMY. IN THE EVENT FONTILLAS REFUNDS TO THE GOVERNMENT THE AMOUNTS PAID HIM AS A COMMISSIONED OFFICER IN THE PHILIPPINE ARMY, THE NAVY DEPARTMENT REQUESTS AN EXPRESSION OF YOUR VIEWS AS TO WHETHER HE IS ENTITLED TO PAYMENT OF RETAINER PAY AS A TRANSFERRED MEMBER OF THE FLEET RESERVE FOR THE PERIOD DURING WHICH HE SERVED IN THE PHILIPPINE ARMY AS A COMMISSIONED OFFICER.

IT IS UNDERSTOOD FROM YOUR LETTER AND FROM THE ENCLOSURES THEREWITH THAT FONTILLAS WAS, OR IS, A MEMBER OF THE FLEET RESERVE AND THAT CANAGAS WAS, OR IS, A RETIRED FLEET RESERVIST. HENCE, THE PROVISO OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, QUOTED IN YOUR LETTER, PROPERLY IS FOR CONSIDERATION IN DETERMINING THE STATUS AND THE PAY RIGHTS OF BOTH. SEE 2 COMP. GEN. 762; 4 ID. 942, 946; 21 ID. 656; B-58879, FEBRUARY 27, 1947.

BY REASON OF SUCH PROVISO, IT SEEMS CLEAR THAT A MEMBER OF THE NAVAL RESERVE MAY NOT BECOME A DE JURE MEMBER OF ANOTHER MILITARY OR NAVAL ORGANIZATION AND, AT THE SAME TIME, RETAIN HIS STATUS AS A MEMBER OF THE NAVAL RESERVE.

IT HAS BEEN THE ACCEPTED GENERAL RULE THAT THE ENLISTED STATUS OF AN ENLISTED MAN OF THE ARMY OR THE NAVY CANNOT BE TERMINATED SOLELY BY THE MAN'S OWN ACTS AND THAT HE RETAINS SUCH STATUS UNTIL IT IS TERMINATED BY COMPETENT AUTHORITY OR BY OPERATION OF LAW OR DEATH. IN THIS CONNECTION, SEE THE OPINION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF IN RE GRIMLEY (1890), 137 U.S. 147, 152, WHEREIN IT IS STATED:

BY ENLISTMENT THE CITIZEN BECOMES A SOLDIER. HIS RELATIONS TO THE STATE AND THE PUBLIC ARE CHANGED. HE ACQUIRES A NEW STATUS, WITH CORRELATIVE RIGHTS AND DUTIES; AND ALTHOUGH HE MAY VIOLATE HIS CONTRACT OBLIGATIONS, HIS STATUS AS A SOLDIER IS UNCHANGED. HE CANNOT OF HIS OWN VOLITION THROW OFF THE GARMENTS HE HAS ONCE PUT ON, NOR CAN HE, THE STATE NOT OBJECTING, RENOUNCE HIS RELATIONS AND DESTROY HIS STATUS ON THE PLEA THAT, IF HE HAD DISCLOSED TRUTHFULLY THE FACTS, THE OTHER PARTY, THE STATE, WOULD NOT HAVE ENTERED INTO THE NEW RELATIONS WITH HIM, OR PERMITTED HIM TO CHANGE HIS STATUS. OF COURSE THESE CONSIDERATIONS MAY NOT APPLY WHERE THERE IS INSANITY, IDIOCY, INFANCY, OR ANY OTHER DISABILITY, WHICH, IN ITS NATURE, DISABLES A PARTY FROM CHANGING HIS STATUS OR ENTERING INTO NEW RELATIONS. BUT WHERE A PARTY IS SUI JURIS, WITHOUT ANY DISABILITY TO ENTER INTO THE NEW RELATIONS, THE RULE GENERALLY APPLIES AS STATED. * * *

IN VIEW OF SUCH RULE AND IN VIEW OF THE ABOVE-MENTIONED PROVISO IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, IT WOULD APPEAR THAT THE RESERVISTS HERE INVOLVED NECESSARILY RETAINED THEIR DE JURE STATUS AS MEMBERS OF THE NAVAL RESERVE NOTWITHSTANDING THEIR OPERATIONS WITH GUERRILLA FORCES IN THE PHILIPPINES AND THE SUBSEQUENT INDUCTION OF THIER GUERRILLA ORGANIZATIONS INTO THE PHILIPPINE ARMY, THERE BEING NO APPARENT ACTION, PURPOSE OR DESIRE ON THE PART OF THE UNITED STATES NAVAL AUTHORITIES TO TERMINATE THEIR NAVAL RESERVE STATUS. IT FOLLOWS THAT, INSOFAR AS THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, THEIR STATUS WITH RESPECT TO THE ARMY OF THE PHILIPPINES MAY BE VIEWED AS NO MORE THAN A DE FACTO STATUS.

BY SECTION 2 (A) (12) OF THE PHILIPPINE INDEPENDENCE ACT OF MARCH 24, 1934, 48 STAT. 457, 48 U.S.C. 1232, THE PRESIDENT WAS GIVEN AUTHORITY TO ORDER INTO THE SERVICE OF ARMED FORCES OF THE UNITED STATES ALL MILITARY FORCES ORGANIZED BY THE PHILIPPINE GOVERNMENT. ACTING UNDER SUCH AUTHORITY, THE PRESIDENT, UNDER DATE OF JULY 26, 1941, ISSUED A MILITARY ORDER CALLING AND ORDERING "INTO THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES FOR THE PERIOD OF THE EXISTING EMERGENCY * * * ALL THE ORGANIZED MILITARY FORCES OF THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINES.' 6 F.R. 3825. SUCH ORDER WAS REVOKED, EFFECTIVE JUNE 30, 1946, BY MILITARY ORDER DATED JUNE 29, 1946, 11 F.R. 7394, AND THE PHILIPPINES WERE DECLARED TO BE INDEPENDENT BY A PROCLAMATION OF THE PRESIDENT OF THE UNITED STATES, NUMBER 2695, DATED JULY 4, 1946, 11 F.R. 7517. DURING THE EFFECTIVE PERIOD OF THE MILITARY ORDER OF JULY 26, 1941, APPROPRIATIONS WERE MADE BY THE UNITED STATES GOVERNMENT FOR "ALL EXPENSES NECESSARY FOR THE MOBILIZATION, OPERATION AND MAINTENANCE OF THE ARMY OF THE PHILIPPINES" AND SUCH APPROPRIATIONS WERE AVAILABLE FOR PAYMENT TO THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINES, EITHER IN ADVANCE OF, OR IN REIMBURSEMENT FOR, SUCH EXPENSES. SEE 55 STAT. 813; 56 STAT. 682; 57 STAT. 365; 58 STAT. 491; 59 STAT. 401; 60 STAT. 14. THUS, IT APPEARS THAT ANY PAYMENTS WHICH THE RESERVISTS HERE INVOLVED RECEIVED FOR THEIR SERVICES WITH HE PHILIPPINE ARMY, AT LEAST PRIOR TO JULY 1, 1946, AND POSSIBLY PAYMENTS FOR PRIOR GUERRILLA SERVICE, ULTIMATELY WERE CHARGED TO APPROPRIATED FUNDS OF THE UNITED STATES; AND SINCE SUCH PAYMENTS WERE, IN EFFECT, PAYMENTS FOR ACTIVE SERVICE UNDER THE ARMED FORCES OF THE UNITED STATES, THIS OFFICE WOULD BE REQUIRED TO OBJECT TO THE PAYMENT OF RETIRED PAY OR RETAINER PAY TO SUCH RESERVISTS FOR ANY PERIOD FOR WHICH THEY SO RECEIVED PAY FOR SERVICES WITH THE GUERRILLAS OR WITH THE PHILIPPINE ARMY AND FOR WHICH SUCH PAY WAS CHARGED, DIRECTLY OR INDIRECTLY, TO APPROPRIATED FUNDS OF THE UNITED STATES. THAT IS TO SAY, THE LAW MAY NOT BE VIEWED AS CONTEMPLATING OR AUTHORIZING AN ADDITIONAL PAYMENT OF RETAINER OR RETIRED PAY, AS IN AN INACTIVE STATUS, FOR PERIODS OF ACTIVE MILITARY SERVICE FOR WHICH PAYMENT HAS BEEN MADE BY THE UNITED STATES.

SUBJECT TO THE FOREGOING AND IN VIEW OF THE PARTICULAR CIRCUMSTANCES AND THE CONDITIONS OF EMERGENCY UNDER WHICH FONTILLAS AND CANAGAS SERVED WITH THE GUERRILLAS AND WITH THE PHILIPPINE ARMY, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS TO THEM OF RETAINER PAY OR RETIRED PAY, IT BEING ASSUMED THAT THEY HAVE BEEN, OR SOON WILL BE SEPARATED FROM THE SERVICE OF THE PHILIPPINE ARMY. SEE PETITION OF AGUSTIN (1945), 62 F.1SUPP. 832. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.