B-65956, MAY 26, 1947

B-65956: May 26, 1947

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ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $499.35. IT APPEARS FROM THE ATTACHED CORRESPONDENCE THAT CAPTAIN BOYLES WAS GRANTED TERMINAL LEAVE AND WHILE ON TERMINAL LEAVE HE WAS OFFERED THE TERMINAL LEAVE PROMOTION TO THE GRADE OF MAJOR. IT WAS STATED IN THE LETTER THAT IF HE ACCEPTED SUCH PROMOTION HE WOULD LOSE SEVENTY-SEVEN DOLLARS AS FIELD GRADE OFFICERS WERE NOT ENTITLED TO MUSTERING-OUT PAY. (COPY INCLOSED) THAT CAPTAIN BOYLES WAS NOT PROMOTED TO THE GRADE OF MAJOR WHILE ON TERMINAL LEAVE BY REASON OF INSUFFICIENT AMOUNT OF TIME IN GRADE WHILE ON ACTIVE DUTY. IN VIEW OF THE FACT THAT THE RECORDS INDICATE THAT THIS OFFICER WAS WELL AWARE THAT HE WAS NOT PROMOTED TO THE RANK OF MAJOR.

B-65956, MAY 26, 1947

PRECIS-UNAVAILABLE

COLONEL CARL WITCHER, F. D., U.S. ARMY:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF APRIL 8, 1947, WITH ENCLOSURES, AS FOLLOWS:

"1. ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $499.35. IN FAVOR OF CAPT. FRANCIS R. BOYLES, JAGD COVERING DIFFERENCE IN PAY BETWEEN A CAPTAIN AND A DE FACTO MAJOR FOR THE PERIOD 2 AUGUST 1946 TO 21 JANUARY 1947, WHICH HAS BEEN PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

"2. IT APPEARS FROM THE ATTACHED CORRESPONDENCE THAT CAPTAIN BOYLES WAS GRANTED TERMINAL LEAVE AND WHILE ON TERMINAL LEAVE HE WAS OFFERED THE TERMINAL LEAVE PROMOTION TO THE GRADE OF MAJOR. HOWEVER, IT WAS STATED IN THE LETTER THAT IF HE ACCEPTED SUCH PROMOTION HE WOULD LOSE SEVENTY-SEVEN DOLLARS AS FIELD GRADE OFFICERS WERE NOT ENTITLED TO MUSTERING-OUT PAY. THE WAR DEPARTMENT STATES IN 4TH INDORSEMENT, DATED 21 FEBRUARY 1947, (COPY INCLOSED) THAT CAPTAIN BOYLES WAS NOT PROMOTED TO THE GRADE OF MAJOR WHILE ON TERMINAL LEAVE BY REASON OF INSUFFICIENT AMOUNT OF TIME IN GRADE WHILE ON ACTIVE DUTY. PAR 44, SO 165 WD DATED 29 JULY 1946 WHICH REASSIGNED THIS OFFICER TO ACTIVE DUTY SHOWS HIS RANK AS MAJOR.

"3. IN VIEW OF THE FACT THAT THE RECORDS INDICATE THAT THIS OFFICER WAS WELL AWARE THAT HE WAS NOT PROMOTED TO THE RANK OF MAJOR, THIS OFFICE IS IN DOUBT AS TO WHETHER THE CLAIM AS A DE FACTO MAJOR FOR THE PERIOD IN QUESTION IS AUTHORIZED AND IT IS REQUESTED THAT THE CLAIM BE FORWARDED TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION."

IT APPEARS THAT BY PARAGRAPH 4 OF SPECIAL ORDERS NO. 342, HEADQUARTERS ARMY AIR BASE, BARKSDALE FIELD, LOUISIANA, DATED DECEMBER 8, 1945, CAPTAIN FRANCIS R. BOYLES WAS DIRECTED TO PROCEED TO HIS HOME TO ARRIVE NOT LATER THAN MARCH 8, 1946, AT MIDNIGHT OF WHICH DATE HE WAS TO REVERT TO INACTIVE STATUS. UNDER DATE OF JANUARY 18, 1946, THE FOLLOWING LETTER FROM THE COMMANDING OFFICER, HEADQUARTERS ARMY AIR FORCE SEPARATION BASE, BARKSDALE FIELD, LOUISIANA, WAS ADDRESSED TO HIM:

"1. THE HEADQUARTERS HAS BEEN DELEGATED AUTHORITY TO PROMOTE OFFICERS OF SPECIFIED TIME IN GRADE AND EFFICIENCY LEVEL TO THE NEXT HIGHER GRADE WHILE ON TERMINAL LEAVE.

"2. A LETTER ORDER PROMOTING YOU TO THE GRADE OF MAJOR, AUS, WAS PUBLISHED ON 20 DECEMBER 1945 AND IS BEING HELD IN OUR FILES PENDING YOUR ACCEPTANCE OR REJECTION OF THE PROMOTION.

"3.IF YOU ACCEPT THE PROMOTION TO THE GRADE OF MAJOR, AUS, YOU WILL LOSE $77.00, INASMUCH AS FIELD GRADE OFFICERS ARE NOT ENTITLED TO MUSTERING OUT PAY.

"4. IN THE EVENT YOU DO NOT ACCEPT, YOU WILL BE PROMOTED TO THE GRADE OF MAJOR BY THE ADJUTANT GENERAL ON THE DAY FOLLOWING YOUR LAST DAY OF TERMINAL LEAVE, THERE BY NOT AFFECTING YOUR PAY ACCOUNT.

"5. PLEASE WIRE THE COMMANDING OFFICER, AAF SEPARATION BASE BARKSDALE FIELD, LA., WHETHER YOU DO OR DO NOT ACCEPT PROMOTION."

THE AUTHORIZATION FOR THE PROMOTION REFERRED TO IN THE ABOVE-QUOTED LETTER APPARENTLY WAS THAT CONSOLIDATED IN WAR DEPARTMENT CIRCULAR 10, DATED JANUARY 11, 1946, (LATER CARRIED IN WAR DEPARTMENT CIRCULAR 140, DATED MAY 15, 1946) WHICH AUTHORIZED, INTER ALIA, THE PROMOTION OF CAPTAINS, WHO HAD ATTAINED A MINIMUM EFFICIENCY INDEX OF 40 AND WHO HAD SERVED TIME IN GRADE OF AT LEAST 24 MONTHS, TO MAJOR COINCIDENT WITH THEIR RELIEF FROM ACTIVE DUTY. THERE IS NO EVIDENCE IN THE FILE OF CAPTAIN BOYLES HAVING REPLIED TO THE SAID LETTER UNTIL JUNE 29, 1946, WHEN HE WIRED THE ADJUTANT GENERAL THAT HIS INTENTION WAS TO ACCEPT HIS TEMPORARY APPOINTMENT TO THE GRADE OF MAJOR EFFECTIVE AS OF MARCH 8, 1946-- THE DATE OF HIS RELEASE TO INACTIVE DUTY. PARAGRAPH 2, SPECIAL

PARAGRAPH 2, SPECIAL ORDERS NO. 148, WAR DEPARTMENT, DATED JULY 5, 1946, ANNOUNCED, AMONG OTHERS, THE APPOINTMENT OF FRANCIS R. BOYLES AS A CAPTAIN IN THE REGULAR ARMY AND SHOWED HIS THEN PRESENT RANK AS CAPTAIN. SUCH ORDERS ARE STATED TO HAVE CONTAINED A SPECIFIC PROVISION AS FOLLOWS:

"ACCEPTANCE OF THIS COMMISSION IN THE RA WILL NOT AFFECT ANY EXISTING COMMISSION IN THE AUS WITHOUT COMPONENT WITH THE EXCEPTION THAT THOSE COMMISSIONS NOW HELD AS A RESULT OF PROMOTIONS ADMINISTRATIVELY VACATED AND APMT IN THE AUS IS HEREBY EFFECTED IN THE GRADE HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY."

THE ADJUTANT GENERAL HAS REPORTED THAT CAPTAIN BOYLES WAS NEVER APPOINTED A MAJOR UNDER THE PROVISIONS OF WAR DEPARTMENT CIRCULAR 10, DATED JANUARY 11, 1946 (OR WAR DEPARTMENT CIRCULAR 140, DATED MAY 15, 1946) FOR THE REASON THAT HE HAD AN INSUFFICIENT AMOUNT OF TIME IN GRADE. HOWEVER, EVEN HAD HE BEEN SO APPOINTED HE NECESSARILY WOULD HAVE TO BE CONSIDERED TO HAVE BEEN ON NOTICE THAT SUCH APPOINTMENT WOULD HAVE BEEN VACATED BY THE PROVISIONS OF SPECIAL ORDERS NO. 148 WAR DEPARTMENT, QUOTED ABOVE. THUS THE ONLY APPARENT BASIS FOR HIS CLAIM TO BE ENTITLED TO PAY AND ALLOWANCES OF A MAJOR DURING THE PERIOD HERE IN QUESTION IS THE FACT THAT PARAGRAPH 44, SPECIAL ORDERS NO. 165, WAR DEPARTMENT, DATED JULY 29, 1946, DIRECTING HIM TO PROCEED TO WASHINGTON, D.C., FOR DUTY AS AN OFFICER OF THE REGULAR ARMY, REFERRED TO HIM AS A MAJOR. HOWEVER, IN FOURTH ENDORSEMENT, DATED FEBRUARY 21, 1947, TO CAPTAIN BOYLES' LETTER OF JANUARY 2, 1947, RELATIVE TO THIS MATTER, THE ADJUTANT GENERAL ADVISED THE JUDGE ADVOCATE GENERAL AS FOLLOWS:

"CAPTAIN FRANCIS R. BOYLES, 029803, JAGD, IS CARRIED ON THE RECORDS OF THIS OFFICE AS A CAPTAIN, JAGD, HAVING BEEN APPOINTED TO THAT GRADE BY WAR DEPARTMENT SPECIAL ORDERS 148 DATED 5 JULY 1946. CAPTAIN BOYLES WAS NOT PROMOTED TO THE GRADE OF MAJOR, AUS, WHILE ON TERMINAL LEAVE BY REASON OF INSUFFICIENT AMOUNT OF TIME IN GRADE WHILE ON ACTIVE DUTY. SO MUCH OF PARAGRAPH 44, WDSO 165, 29 JULY 1946, AS REFERRED TO CAPTAIN BOYLES AS A MAJOR WAS AMENDED TO READ CAPTAIN BY LETTER ORDER, THIS OFFICE, DATED 22 JANUARY 1947. IN ACCORDANCE WITH OPINION CONTAINED IN BASIC COMMUNICATION AND THIRD INDORSEMENT, CAPTAIN BOYLES STATUS AS A DE FACTO MAJOR TERMINATED EFFECTIVE 21 JANUARY 1947."

IT WOULD SEEM OBVIOUS THAT A MERE ADMINISTRATIVE ERROR IN REFERRING TO AN OFFICER'S RANK DOES NOT OPERATE TO CHANGE HIS STATUS IN THAT RESPECT. HAD ORDERS INDICATED CAPTAIN BOYLES' RANK AS SECOND LIEUTENANT, IT IS NOT LIKELY THAT HE WOULD HAVE ASSUMED THAT THEREAFTER HE WAS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF A SECOND LIEUTENANT. AND, IF THE ORDERS HAD INDICATED HIS RANK AS COLONEL, IT IS NOT BELIEVED THAT IT SERIOUSLY WOULD CONTENDED THAT HE THEREBY BECAME ENTITLED TO THE PAY AND ALLOWANCES OF A COLONEL. IN ANY EVENT IT WOULD APPEAR THAT WHERE ORDERS TO AN OFFICER ADDRESS HIM IN A RANK HIGHER THAN THE RANK HE ACTUALLY HOLDS, THERE IS NO JUSTIFICATION FOR HIM TO ASSUME THAT HE HAS BEEN PROMOTED TO SUCH HIGHER RANK. UNDER SUCH CIRCUMSTANCES IT IS INCUMBENT UPON HIM TO VERIFY HIS STATUS AND HIS FAILURE TO DO SO CANNOT OPERATE TO PLACE HIM IN HIGHER RANK IN A DE FACTO STATUS. TO CONSTITUTE AN OFFICER DE FACTO IT IS A NECESSARY PREREQUISITE THAT HE BE SERVING UNDER COLOR OF AUTHORITY AND THAT HE NOT BE A MERE VOLUNTEER. SEE UNITED STATES V. ROYER, 268 U.S. 394, AND THE CASES CITED THEREIN. THE PHRASES "COLOR OF AUTHORITY" CONTEMPLATES THAT THE INCUMBENT OF THE OFFICE BE SERVING PURSUANT TO AN APPOINTMENT WHICH HE WAS JUSTIFIED IN BELIEVING WAS COMPETENT TO INVEST HIM WITH SUCH OFFICE. THE FACTS DISCLOSED DO NOT JUSTIFY A CONCLUSION THAT CAPTAIN BOYLES SERVED AS A DE FACTO MAJOR DURING THE PERIOD OF HIS CLAIM.

PAYMENT ON THE VOUCHER SUBMITTED WITH YOUR LETTER IS NOT AUTHORIZED. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED IN THIS OFFICE.