B-70185, MAR 22, 1948

B-70185: Mar 22, 1948

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THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8. IS ENTITLED FOR THE PERIOD JULY 18. WHO WAS THE APPOINTING AND REDUCING AUTHORITY. THE BASE COMMANDER ORDERED THE REDUCTION WITHOUT HAVING EXAMINED INTO THE FACTS OF THE CASE 'THOUGH A BOARD COMPOSED OF A MINIMUM OF THREE DISINTERESTED OFFICERS APPOINTED BY HIM TO DETERMINE WHETHER OR NOT THERE IS JUST CAUSE FOR THE TERMINATION OF THE APPOINTMENT' AS REQUIRED BY SUBPARAGRAPH 15A. RIPPY WAS DISCHARGED. THE APPOINTMENT OF A SUCCESSOR TO FILL THE VACANCY OCCASIONED BY RIPPY'S REDUCTION IS NOT INDICATED IN THE RECORD.". MISCONDUCT OR INEFFICIENCY BELIEVED TO MAKE TERMINATION OF APPOINTMENT NECESSARY IN THE INTEREST OF THE MILITARY SERVICE WILL BE REPORTED BY THE IMMEDIATE COMMANDING OFFICER OF THE NONCOMMISSIONED OFFICER CONCERNED THROUGH MILITARY CHANNELS TO THE APPOINTING AUTHORITY (EXCEPT THAT A NONCOMMISSIONED OFFICER IN A PROVISIONAL UNIT ON DETACHED SERVICE IN AN OVERSEA THEATER.

B-70185, MAR 22, 1948

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1947, REQUESTING A DECISION AS TO THE PAY TO WHICH JOHN D. RIPPY, A FORMER ENLISTED MAN OF THE ARMY, IS ENTITLED FOR THE PERIOD JULY 18, 1946, TO DECEMBER 30, 1946, DATE OF DISCHARGE, FOLLOWING HIS REDUCTION FROM CORPORAL TO PRIVATE ON JULY 18, 1946, UNDER THE CIRCUMSTANCES RELATED IN YOUR LETTER AS FOLLOWS:

"ON OR ABOUT 16 JULY 1946, CORPORAL JOHN D. RIPPY, 35248178, 315TH ARMY AIR FORCE BASE UNIT (ADC), ARMY AIR BASE, GODMAN FIELD, FORT KNOX, KENTUCKY, DAMAGED A GOVERNMENT VEHICLE BY REASON OF RECKLESS OPERATION THEREOF. ON 18 JULY 1946, AFTER INTERVIEWING RIPPY AND HIS SUPERVISORY SERGEANT, THE BASE COMMANDER, WHO WAS THE APPOINTING AND REDUCING AUTHORITY, REDUCED RIPPY TO THE GRADE OF PRIVATE 'FOR CAUSE' (PAR. 3, SO 24, HQ. AAF, GODMAN FIELD, FORT KNOX, KY.). THE BASE COMMANDER ORDERED THE REDUCTION WITHOUT HAVING EXAMINED INTO THE FACTS OF THE CASE 'THOUGH A BOARD COMPOSED OF A MINIMUM OF THREE DISINTERESTED OFFICERS APPOINTED BY HIM TO DETERMINE WHETHER OR NOT THERE IS JUST CAUSE FOR THE TERMINATION OF THE APPOINTMENT' AS REQUIRED BY SUBPARAGRAPH 15A, C2, 24 MAY 1946, ARMY REGULATIONS 615-5, 7 DECEMBER 1945, THEN IN EFFECT. ON 10 SEPTEMBER 1946, RIPPY REGISTERED A COMPLAINT WITH AN OFFICER OF THE INSPECTOR GENERAL'S DEPARTMENT TO THE EFFECT THAT BECAUSE OF THE BASE COMMANDER'S FAILURE TO COMPLY WITH THE REQUIREMENT PERTAINING TO THE MENTIONED BOARD, HE HAD BEEN ILLEGALLY REDUCED. A HIGHER COMMAND AUTHORITY ADOPTED THAT VIEW AND ON 7 MARCH 1947, THE HEADQUARTERS WHICH HAD ISSUED THE REDUCTION ORDER ISSUED A PURPORTED REVOCATION THEREOF (PAR. 4, SO 16 HQ AAF, GODMAN FIELD, FORT KNOX, KY.). MEANWHILE, ON 30 DECEMBER 1946, RIPPY WAS DISCHARGED, PRESUMABLY IN THE GRADE OF PRIVATE, FOR THE CONVENIENCE OF THE GOVERNMENT. THE APPOINTMENT OF A SUCCESSOR TO FILL THE VACANCY OCCASIONED BY RIPPY'S REDUCTION IS NOT INDICATED IN THE RECORD."

THE SAID REGULATIONS AS CHANGED MAY 24, 1946, PROVIDED:

"15. MISCONDUCT OR INEFFICIENCY.-- A. GENERAL-- MISCONDUCT OR INEFFICIENCY BELIEVED TO MAKE TERMINATION OF APPOINTMENT NECESSARY IN THE INTEREST OF THE MILITARY SERVICE WILL BE REPORTED BY THE IMMEDIATE COMMANDING OFFICER OF THE NONCOMMISSIONED OFFICER CONCERNED THROUGH MILITARY CHANNELS TO THE APPOINTING AUTHORITY (EXCEPT THAT A NONCOMMISSIONED OFFICER IN A PROVISIONAL UNIT ON DETACHED SERVICE IN AN OVERSEA THEATER, OR ON DETACHED SERVICE IN AN OVERSEA THEATER FROM A UNIT STATIONED IN THE UNITED STATES, WILL BE REPORTED TO THE APPROPRIATE COMMANDING OFFICERS AS OUTLINED IN PARAGRAPH 14E), WHO WILL EXAMINE CAREFULLY AND EXPEDITIOUSLY INTO FACTS IN THE CASE THROUGH A BOARD COMPOSED OF A MINIMUM OF THREE DISINTERESTED OFFICERS, APPOINTED BY HIM, TO DETERMINE WHETHER OR NOT THERE IS JUST CAUSE FOR THE TERMINATION OF THE APPOINTMENT. IF THE BOARD DETERMINES THAT THE PROPOSED REDUCTION OF THE NONCOMMISSIONED OFFICER IS NOT JUSTIFIED, THE NONCOMMISSIONED OFFICER WILL BE TRANSFERRED TO ANOTHER UNIT."

BESIDES ADDING A DIRECTIVE TO TRANSFER THE NONCOMMISSIONED OFFICER CONCERNED TO ANOTHER UNIT IN THE EVENT THE PROPOSED REDUCTION IS FOUND BY THE BOARD NOT TO BE JUSTIFIED, THE SAID PROVISION OF THE REGULATIONS OMITS THE WORDS "OR BY OTHER SIMILAR METHODS IF HE SO ELECTS" CONTAINED IN PRIOR REGULATIONS IN EFFECT AT THE TIME OF THE REDUCTIONS INVOLVED IN THE CASES CONSIDERED IN DECISION OF APRIL 23, 1936, 15 COMP.GEN. 935, WHEREIN IT WAS HELD THAT SUCH PROCEDURE WAS DIRECTORY AND NOT MANDATORY, AND HENCE THE ENLISTED MEN THERE CONCERNED WERE ENTITLED ONLY TO THE PAY OF THE GRADES TO WHICH REDUCED. THE PERTINENT REGULATION THEN IN EFFECT READ:

"13. MISCONDUCT OF INEFFICIENCY.-- A. GENERAL-- EXCEPT WHEN THE RESTRICTIONS IMPOSED BY PARAGRAPH 9, AR 615-210, APPLY, THE MISCONDUCT OR INEFFICIENCY BELIEVED TO MAKE TERMINATION OF APPOINTMENT NECESSARY WILL BE REPORTED BY THE IMMEDIATE COMMANDING OFFICER OF THE NONCOMMISSIONED OFFICER CONCERNED THROUGH MILITARY CHANNELS TO THE APPOINTING AUTHORITY, WHO WILL CAREFULLY AND EXPEDITIOUSLY EXAMINE INTO THE FACTS IN THE CASE, THROUGH A BOARD OF OFFICERS, OR BY OTHER SIMILAR METHODS IF HE SO ELECTS, TO DETERMINE THE FACTS IN CONNECTION WITH THE ALLEGED INEFFICIENCY OR MISCONDUCT AND WHETHER OR NOT THERE IS JUST CAUSE FOR THE TERMINATION OF THE APPOINTMENT."

WITH RESPECT TO THE AUTHORITY OF THE APPOINTING AUTHORITY TO REDUCE THE ENLISTED MEN INVOLVED WITH OUT COMPLYING WITH THE PROCEDURE SET FORTH IN SUCH REGULATIONS, IT WAS STATED IN THE SAID DECISION OF APRIL 23, 1936, AS FOLLOWS:

"*** A REGIMENTAL COMMANDER WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL IS AUTHORIZED TO APPOINT ALL NONCOMMISSIONED OFFICERS OF THE REGIMENT (A.R. 615-5, PAR. 5C). HE HAS AUTHORITY TO TRANSFER ENLISTED MEN WITHIN HIS COMMAND WITH EXCEPTION NOT HERE MATERIAL (A.R. 615/200, PAR. 9C). AND HE HAS AUTHORITY TO REDUCE FOR MISCONDUCT OR INEFFICIENCY NONCOMMISSIONED OFFICERS WITHIN HIS COMMAND WHOM HE IS AUTHORIZED TO APPOINT (A.R. 615/5, PAR. 13A). THE METHOD PRESCRIBED IN THE LAST-CITED PARAGRAPH FOR ASCERTAINING OR DETERMINING MISCONDUCT OR INEFFICIENCY IS NOT MANDATORY BUT DIRECTORY ONLY; FROM THE VERY NATURE OF HIS OFFICE IT IS PLAIN THE REGULATIONS DO NOT OPERATE TO LIMIT THE REGIMENTAL COMMANDER FROM ACTING ON HIS OWN KNOWLEDGE IN REDUCING A NONCOMMISSIONED OFFICER OF HIS COMMAND FOR INEFFICIENCY, OR FROM REDUCING SUCH A NONCOMMISSIONED OFFICER FOR MISCONDUCT COMMITTED IN THE REGIMENTAL COMMANDER'S PRESENCE. HIS FAILURE TO ADOPT THE PROCEDURE INDICATED IN THE REGULATIONS IN SOME CIRCUMSTANCES MAY BE A BASIS FOR INVESTIGATION BY THE WAR DEPARTMENT AND MAY REFLECT UPON HIS ABILITY AS A REGIMENTAL COMMANDER, BUT FAILURE TO ADOPT THE PROCEDURE INDICATED IN THE REGULATIONS DOES NOT INVALIDATE THE ACTION TAKEN BY HIM IN REDUCING A NONCOMMISSIONED OFFICER HE IS AUTHORIZED TO APPOINT OR TO TRANSFER WITHIN HIS COMMAND."

THE QUESTION PRESENTED IS WHETHER A NONCOMMISSIONED OFFICER REDUCED IN GRADE BY THE APPOINTING AND REDUCING AUTHORITY, WITHOUT AN INVESTIGATION OF THE FACTS AND A DETERMINATION AS TO JUST CAUSE FOR REDUCTION IN GRADE BY A BOARD COMPOSED OF A LEAST THREE DISINTERESTED OFFICERS, IS ENTITLED TO THE PAY OF THE GRADE FROM WHICH REDUCED NOTWITHSTANDING THAT HE WAS REDUCED BY AN OFFICER OTHERWISE CLOTHED WITH AUTHORITY TO EFFECT THE REDUCTION.

THERE ARE QUOTED IN YOUR LETTER EXCERPTS FROM AN OPINION OF THE JUDGE ADVOCATE GENERAL (JAGA 1946/9701) DATED MARCH 4, 1947, EXPRESSING THE VIEW THAT, UNDER THE REGULATIONS IN EFFECT JULY 18, 1946, THE APPOINTMENT OF A BOARD OF AT LEAST THREE DISINTERESTED OFFICERS WAS MANDATORY AND HENCE THAT THE REDUCTION IN GRADE BY THE APPOINTING AUTHORITY WAS ILLEGAL IN A CASE WHERE SUCH FACT-FINDING BOARD OF DISINTERESTED OFFICERS WAS NOT UTILIZED BY THE APPOINTING AUTHORITY. SUCH VIEW APPEARS TO BE PREDICATED PRIMARILY UPON THE PREMISE THAT THE REGULATIONS INVOLVED DIFFER FROM THOSE IN EFFECT AT THE TIME THE CASES CONSIDERED IN DECISION 15 COMP.GEN. 935, SUPRA, AROSE, BY THE OMISSION OF THE WORDS "OR BY OTHER SIMILAR METHODS IF HE SO ELECTS" WITH REFERENCE TO THE INVESTIGATION TO BE CONDUCTED BY THE APPOINTING AUTHORITY AND THE ADDITION OF A DIRECTIVE TO TRANSFER THE NONCOMMISSIONED OFFICER CONCERNED ("IN GRADE" PURSUANT TO LATER REGULATIONS) TO ANOTHER UNIT IN THE EVENT THAT THE PROPOSED REDUCTION IS FOUND BY THE BOARD NOT TO BE JUSTIFIED.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE VIEWS OF THE JUDGE ADVOCATE GENERAL IN THIS MATTER BUT WITH RESPECT TO THE RIGHT TO PAY AND ALLOWANCES I THINK THERE IS SUBSTANTIAL DOUBT THAT THE SECRETARY OF WAS NECESSARILY INTENDED BY THE SAID CHANGES IN THE REGULATION TO RENDER NULL AND VOID, REGARDLESS OF CIRCUMSTANCES, ANY REDUCTION OF A NONCOMMISSIONED OFFICER BY THE REGIMENTAL COMMANDER OR OTHER APPOINTING AUTHORITY, FOR MISCONDUCT OR INEFFICIENCY, WITHOUT PRIOR REFERENCE OF THE MATTER TO A BOARD OF OFFICERS FOR INVESTIGATION. THAT IS, IT IS NOT CLEAR THAT THE SECRETARY INTENDED BY THE CHANGES IN THE TEXT OF THE REGULATION TO STRIP THE REGIMENTAL COMMANDER WHOLLY OF HIS AUTHORITY AND DISCRETION WITH RESPECT TO SUCH MATTERS. IT WILL BE NOTED THAT THE DECISION 15 COMP.GEN. 935, SUPRA, WAS NOT PREDICATED UPON THE GROUND THAT THE REGULATIONS PROVIDED TWO METHODS OF INQUIRY (A BOARD OF DISINTERESTED OFFICERS OR SOME SIMILAR METHOD), BUT RATHER UPON THE PREMISE THAT THE AUTHORITY OF THE REGIMENTAL COMMANDER TO REDUCE A NONCOMMISSIONED OFFICER ON THE BASIS OF HIS OWN KNOWLEDGE FOR INEFFICIENCY OR FOR MISCONDUCT COMMITTED IN HIS PRESENCE WAS NOT LIMITED BY THE REGULATIONS THEN IN EFFECT. IF THE REGIMENTAL COMMANDER WAS AUTHORIZED TO PURSUE EITHER OF TWO ALTERNATIVE METHODS OF INQUIRY OR COULD PROPERLY IGNORE BOTH METHODS UNDER ANY CIRCUMSTANCES-- THE REGULATIONS CONTAINING NO QUALIFYING PROHIBITION AGAINST SUCH ACTION-- IT FOLLOWS THAT THE MERE ELIMINATION OF ONE OF THE ENUMERATED METHODS OF CONDUCTING AN INQUIRY INTO THE FACTS DOES NOT MAKE THE OTHER METHOD MANDATORY WHERE NEITHER METHOD INDIVIDUALLY NOR BOTH CONSIDERED TOGETHER AS ALTERNATIVES WERE MANDATORY BEFORE.

THE MATTER OF APPOINTMENT AND REDUCTION OF NONCOMMISSIONED OFFICERS OF THE ARMY IS ONE OF REGULATIONS, WHICH AT THE TIME RIPPY WAS REDUCED IN GRADE, IT WILL BE NOTED, DID NOT REQUIRE THAT THE APPOINTING AND REDUCING AUTHORITY ADOPT AS HIS OWN THE FINDINGS OF FACT OR FOLLOW THE DETERMINATION BY THE BOARD OF OFFICERS WHETHER THERE WAS A JUST CAUSE FOR REDUCTION IN GRADE OF A NONCOMMISSIONED OFFICER. THERE THE BOARD OF OFFICERS DETERMINED THAT THERE WAS NO JUST CAUSE FOR REDUCTION IN GRADE OF THE NONCOMMISSIONED OFFICER, THERE WAS NO PROVISION IN THE GOVERNING REGULATIONS THAT IN ANY WAY LIMITED THE AUTHORITY OF THE APPOINTING POWER TO TERMINATE THE APPOINTMENT OF THE NONCOMMISSIONED OFFICER CONCERNED, NOTWITHSTANDING A DETERMINATION BY THE BOARD OF OFFICERS FAVORABLE TO THE ENLISTED MAN. LIKEWISE, THERE WAS NO PROVISION MAKING IT MANDATORY THAT HE REDUCE THE ENLISTED MAN IN GRADE WHERE THE BOARD OF OFFICERS MADE A FINDING AND DETERMINATION UNFAVORABLE TO THE ENLISTED MAN. WHILE CONSIDERATIONS OF POLICY MAY HAVE MADE SUCH INADVISABLE, HE COULD IGNORE THE FINDINGS AND DETERMINATION OF SUCH BOARD AND RETAIN THE ENLISTED MAN IN GRADE OR EVEN PROMOTE HIM TO A HIGHER GRADE IF OTHERWISE PROPER, OR REDUCE HIM IN GRADE, CONTRARY TO THE DETERMINATION OF THE BOARD OF OFFICERS. THUS IT APPEARS THAT THE AUTHORITY OF THE APPOINTING POWER TO REDUCE A NONCOMMISSIONED OFFICER FOR INEFFICIENCY WAS UNRESTRICTED INSOFAR AS THE BOARD OF OFFICERS WAS CONCERNED. THUS THE EFFECT OF THE CITED OMISSION IN THE REGULATION INVOLVED APPEARS TO HAVE BEEN MERELY TO ELIMINATE ANY EXPRESS AUTHORITY FOR ELECTING AN ALTERNATIVE METHOD OF INVESTIGATION, LEAVING THE SPECIFIED METHOD DIRECTORY BUT NOT NECESSARILY MANDATORY SO AS LEGALLY TO INVALIDATE REDUCTIONS BY THE APPOINTING AUTHORITY NOT OTHERWISE PROHIBITED.

WHILE THE OPINION PARTLY QUOTED IN YOUR LETTER CONTAINS, PARENTHETICALLY, ON OBSERVATION AS TO THE DIFFICULTY IN FORMULATING LANGUAGE IN THIS PARTICULAR REGULATION WITH SUFFICIENT CLARITY AS TO LEAVE NO DOUBT AS TO ITS MANDATORY CHARACTER, EXCEPT "BY SOME SUCH UNMILITARY EXHORTATIONS AS: 'THE FOREGOING INSTRUCTIONS ARE MANDATORY'", IT IS NOTICED THAT SUBPARAGRAPHS 13 (C)(2) AND 15(A) OF CHANGES NO. 3 DATED DECEMBER 10, 1947, TO AR 615-5 APPEAR TO CONTAIN SUCH LANGUAGE AS TO LEAVE LITTLE, IF ANY DOUBT AS TO THE LIMITATIONS WHICH NOW HAVE BEEN PLACED UPON THE APPOINTING AUTHORITY AND THE REQUIREMENTS TO BE FOLLOWED AS A CONDITION PRECEDENT TO THE EFFECTIVE REDUCTION OF NONCOMMISSIONED OFFICERS FOR MISCONDUCT OR INEFFICIENCY. HOWEVER, INTENT, IN THAT RESPECT, OF THE ARMY REGULATIONS IN EFFECT AT THE TIME RIPPY WAS REDUCED TO THE GRADE OF PRIVATE APPEARS TOO DOUBTFUL FOR THIS OFFICE TO CONCLUDE THAT THE FAILURE TO APPOINT A BOARD OF OFFICERS AS DIRECTED THEREIN, OPERATED PER SE TO INVALIDATE THE REDUCTION IN GRADE SO AS TO AUTHORIZE A CONTINUATION OF THE PAY OF HIGHER GRADE. ON SUCH BASIS, YOU ARE ADVISED THAT PAYMENT TO MR. RIPPY OF THE DIFFERENCE IN PAY BETWEEN THE TWO GRADES FOR THE PERIOD INVOLVED, JULY 18 TO DECEMBER 30, 1946, IS NOT AUTHORIZED.

FINEE 201 RIPPY

JOHN D. 35 248 178 REDUCTION OF ENLISTED MAN

THE ADJUTANT GENERAL OCF 22 APRIL 1948 WASHINGTON 25, D.C. C. V. JOHNSON/4931

1. REFERENCE IS MADE TO SUMMARY SHEET FROM YOUR OFFICE DATED 10 SEPTEMBER 1947, FILE REFERENCE 201 RIPPY, JOHN D. (26 SEP 46), FORWARDING A LETTER ADDRESSED TO THE COMPTROLLER GENERAL FOR THE SIGNATURE OF THE SECRETARY OF THE ARMY.

2. THERE IS INCLOSED HEREWITH A COPY OF THE DECISION RENDERED IN THIS CASE; B-70185, DATED 22 MARCH 1948

FOR THE CHIEF OF FINANCE: ..END :