B-75517, MAY 26, 1948, 27 COMP. GEN. 730

B-75517: May 26, 1948

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WHO WAS SUBSEQUENTLY NOTIFIED THAT THE PROMOTION APPLIED TO ANOTHER OFFICER OF THE SAME NAME. IS ENTITLED TO RETAIN THE HIGHER PAY AND ALLOWANCES RECEIVED BY HIM IN GOOD FAITH WHILE SERVING. IN SUCH HIGHER RANK UNDER THE COLOR OF A VALID APPOINTMENT FROM THE DATE OF THE APPOINTMENT TO THE DATE NOTICE OF THE IMPROPER APPOINTMENT WAS RECEIVED BY THE OFFICER. IT WAS ANNOUNCED THAT THE PRESIDENT ON NOVEMBER 29. THE OFFICER'S FILE NUMBER WAS NOT SHOWN NOR WERE ANY OTHER IDENTIFYING DATA GIVEN. SUCH AUTHORITY WAS GRANTED. IT IS STATED THAT THIS OFFICER ACKNOWLEDGED HIS APPOINTMENT TO THE RANK OF COMMANDER ON JANUARY 30. STATED TO HAVE BEEN RECEIVED BY THE OFFICER ON JULY 31. HE WAS INFORMED THAT HE WAS NOT THE LIEUTENANT COMMANDER SAMUEL SANDERS.

B-75517, MAY 26, 1948, 27 COMP. GEN. 730

PAY - PROMOTIONS - SERVICE UNDER ERRONEOUS TEMPORARY PROMOTION A NAVAL RESERVE OFFICER WHOSE NAME--- WITHOUT OTHER IDENTIFYING DATA -- APPEARED ON A NAVY PROMOTION LIST ANNOUNCING THAT THE PRESIDENT HAD APPOINTED CERTAIN OFFICERS TO A HIGHER TEMPORARY RANK, BUT WHO WAS SUBSEQUENTLY NOTIFIED THAT THE PROMOTION APPLIED TO ANOTHER OFFICER OF THE SAME NAME, IS ENTITLED TO RETAIN THE HIGHER PAY AND ALLOWANCES RECEIVED BY HIM IN GOOD FAITH WHILE SERVING, WITHOUT KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, OF THE DEFECT IN HIS APPOINTMENT, IN SUCH HIGHER RANK UNDER THE COLOR OF A VALID APPOINTMENT FROM THE DATE OF THE APPOINTMENT TO THE DATE NOTICE OF THE IMPROPER APPOINTMENT WAS RECEIVED BY THE OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 26, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 16, 1948, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION AS TO THE RIGHT OF LIEUTENANT COMMANDER SAMUEL ROUNTREE SANDERS, JR., 117932, UNITED STATES NAVAL RESERVE, TO RETAIN THE PAY AND ALLOWANCES OF A COMMANDER PAID TO HIM DURING THE PERIOD NOVEMBER 1, 1945, TO JULY 31, 1947, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IN ALNAV-410 DATED NOVEMBER 30, 1945, IT WAS ANNOUNCED THAT THE PRESIDENT ON NOVEMBER 29, 1945, HAD APPOINTED, AMONG OTHERS, LIEUTENANT COMMANDER SAMUEL SANDERS, JR., TO THE RANK OF COMMANDER FOR TEMPORARY SERVICE TO RANK FROM NOVEMBER 1, 1945. THE OFFICER'S FILE NUMBER WAS NOT SHOWN NOR WERE ANY OTHER IDENTIFYING DATA GIVEN. BY DISPATCH DATED DECEMBER 13, 1945, THE COMMANDER, NAVAL FORCES, EUROPE, REQUESTED AUTHORITY FROM THE BUREAU OF NAVAL PERSONNEL TO EFFECT THE PROMOTION OF LIEUTENANT COMMANDER SAMUEL SANDERS, JR., S (I), FILE NO. 117932 (THE OFFICER HERE CONCERNED), UNDER THE PROVISIONS OF THE SAID ALNAV-410, AND BY NAVAL SPEEDLETTER DATED JANUARY 10, 1946, FROM THE BUREAU OF NAVAL PERSONNEL TO COMMANDER, NAVAL FORCES, EUROPE, SUCH AUTHORITY WAS GRANTED. IT IS STATED THAT THIS OFFICER ACKNOWLEDGED HIS APPOINTMENT TO THE RANK OF COMMANDER ON JANUARY 30, 1946, AND THAT HE HAS BEEN CREDITED WITH THE PAY AND ALLOWANCES OF THAT RANK SINCE NOVEMBER 1, 1945. SUBSEQUENTLY, BY LETTER DATED JULY 7, 1947, FROM THE BUREAU OF NAVAL PERSONNEL, STATED TO HAVE BEEN RECEIVED BY THE OFFICER ON JULY 31, 1947, HE WAS INFORMED THAT HE WAS NOT THE LIEUTENANT COMMANDER SAMUEL SANDERS, JR., LISTED IN ALNAV-410 OF NOVEMBER 30, 1945, AS HAVING BEEN APPOINTED TO THE RANK OF COMMANDER; THAT SUCH APPOINTMENT RELATED TO ANOTHER OFFICER OF THAT NAME HAVING THE FILE NO. 158693, IN VIEW OF WHICH HE WAS ADVISED THAT HE HAD NOT BEEN PROMOTED TO THE RANK OF COMMANDER; THAT HE WAS NOT ELIGIBLE FOR SUCH PROMOTION; AND THAT HIS ACKNOWLEDGMENT THEREOF DATED JANUARY 30, 1946, WAS THEREFORE NULL AND VOID AND OF NO FORCE OR EFFECT.

FROM THE ABOVE STATEMENT OF FACTS IT APPEARS THAT DURING THE PERIOD NOVEMBER 29, 1945, TO THE DATE OF RECEIPT OF NOTICE OF THE FACT THAT SANDERS WAS SERVING AS A COMMANDER UNDER THE COLOR OF A VALID APPOINTMENT AND THAT THE DEFECT OF THE APPOINTMENT WAS NOT A MATTER OF WHICH HE HAD KNOWLEDGE, ACTUAL OR CONSTRUCTIVE. SINCE HE PERFORMED THE DUTIES OF A COMMANDER, HE IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED BY HIM IN GOOD FAITH FOR SERVICE IN THAT CAPACITY. SEE UNITED STATES V. ROYER, 268 U.S. 394. HOWEVER, SATISFACTORY EVIDENCE AS TO THE DATE THE OFFICER ACTUALLY RECEIVED NOTICE OF THE FACT THAT HE HAD NOT PROPERLY BEEN APPOINTED TO THE RANK OF COMMANDER SHOULD BE SUBMITTED IN SUPPORT OF THE FINAL PAYMENT MADE TO HIM IN THAT RANK.

WITH RESPECT TO THE PAY AND ALLOWANCES RECEIVED BY HIM AS A COMMANDER FOR THE PERIOD NOVEMBER 1 TO 28, 1945, YOUR ATTENTION IS INVITED TO SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, WHICH PROVIDES:

PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY SEVENTH CONGRESS), SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE. (ITALICS SUPPLIED.)

SINCE THE SAID ALNAV-410 STATED SPECIFICALLY THAT THE APPOINTMENTS ANNOUNCED THEREIN WERE MADE BY THE PRESIDENT ON NOVEMBER 29, 1945, THE OFFICER SHOULD NOT HAVE BEEN PAID THE PAY AND ALLOWANCES OF A COMMANDER PRIOR TO THAT DATE. ACCORDINGLY, HE SHOULD BE REQUIRED TO REFUND THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES RECEIVED DURING THAT PERIOD AND THE PAY AND ALLOWANCES OF A LIEUTENANT COMMANDER TO WHICH HE WAS ENTITLED.