B-95448, JAN. 12, 1966

B-95448, JAN. 12, 1966

TO MAJOR PAUL R. ECKMAN, AUS (RETIRED):

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1965, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES AS A WARRANT OFFICER, JUNIOR GRADE, UNITED STATES ARMY, FOR THE PERIOD AUGUST 26 TO SEPTEMBER 21, 1949, WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 7, 1950.

THE MATTER WAS RECONSIDERED BY THIS OFFICE AND BY DECISION DATED NOVEMBER 7, 1950, B-95448, YOU WERE FULLY ADVISED WHY YOUR CLAIM MAY NOT BE ALLOWED. IN SUMMARY, YOU WERE RELEASED FROM ACTIVE DUTY AS A COMMISSIONED OFFICER EFFECTIVE JULY 29, 1949. YOUR APPOINTMENT AS WARRANT OFFICER, JUNIOR GRADE, REGULAR ARMY, WAS ANNOUNCED BY ORDERS DATED JULY 31, 1949. YOU ENLISTED IN THE REGULAR ARMY ON AUGUST 23, 1949, AND WERE DISCHARGED ON AUGUST 25, 1949, TO ENTER ON ACTIVE DUTY AS A WARRANT OFFICER, JUNIOR GRADE. UNDER DATE OF SEPTEMBER 9, 1949, THE ADJUTANT GENERAL'S OFFICE ADVISED THE COMMANDING GENERAL, 10TH INFANTRY DIVISION, FORT RILEY, KANSAS, THAT TO HAVE BEEN ELIGIBLE FOR APPOINTMENT YOU MUST HAVE BEEN ON ACTIVE DUTY AT THE TIME OF APPOINTMENT, AND THAT YOU WERE NOT ELIGIBLE FOR APPOINTMENT, SINCE YOU WERE NOT ON ACTIVE DUTY ON JULY 31, 1949.

IN OUR 1950 DECISION YOU WERE ADVISED THAT IN SUCH CIRCUMSTANCES YOU WERE NOT A DE JURE WARRANT OFFICER, JUNIOR GRADE, DURING THE PERIOD AUGUST 28 TO SEPTEMBER 21, 1949; THAT AT MOST YOUR STATUS WAS THAT OF A DE FACTO WARRANT OFFICER, JUNIOR GRADE; AND THAT IN ORDER TO BE ENTITLED TO PAY AND ALLOWANCES A PERSON MUST SHOW A LEGAL RIGHT THERETO BASED UPON A DE JURE STATUS OR ACTUAL RECEIPT IN GOOD FAITH OF THE PAY AND ALLOWANCES OF AN OFFICE IN A DE FACTO STATUS. SINCE YOUR APPOINTMENT AS A WARRANT OFFICER, JUNIOR GRADE, WAS NOT A LAWFUL APPOINTMENT SO AS TO VEST IN YOU A DE JURE STATUS, AND SINCE YOU HAD NOT BEEN PAID AS A WARRANT OFFICER, JUNIOR GRADE, YOU WERE ADVISED THAT THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF YOUR CLAIM. ALSO, SINCE YOU HAD BEEN DISCHARGED FROM YOUR ENLISTMENT ON AUGUST 25, 1949, THERE WAS NO AUTHORITY OF LAW FOR THE PAYMENT TO YOU OF THE PAY AND ALLOWANCES OF AN ENLISTED MEMBER OF THE ARMY FOR THE PERIOD AUGUST 26 TO SEPTEMBER 21, 1949. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED.

THAT DECISION WAS RENDERED BY THE HONORABLE FRANK L. YATES, FORMER ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES, AND HAS THE SAME EFFECT AND IS AS BINDING AS IT WOULD BE IF IT HAD BEEN RENDERED BY THE HONORABLE LINDSAY C. WARREN, THEN THE COMPTROLLER GENERAL OF THE UNITED STATES. SEE 31 COMP. GEN. 596. IT IS A PRINCIPLE OF LONG STANDING THAT AN OFFICER OF THE GOVERNMENT MAY NOT REOPEN A SETTLEMENT OR REVERSE A DECISION MADE BY HIS PREDECESSOR IN OFFICE EXCEPT UPON PRODUCTION OF NEW AND MATERIAL EVIDENCE, OR TO CORRECT MANIFEST MISTAKES OF FACT SUCH AS ERRORS IN CALCULATION, OR FOR FRAUD OR COLLUSION. SEE 16 COMP. GEN. 51 AND 118 AND THE CASES THERE CITED. YOU HAVE FURNISHED NO NEW EVIDENCE AND THE FACTS OF YOUR CASE APPEAR TO HAVE BEEN CORRECTLY STATED. THERE IS, OF COURSE, NO EVIDENCE OF FRAUD OR COLLUSION. HOWEVER, YOU ARE ADVISED THAT YOUR CLAIM HAS BEEN CAREFULLY CONSIDERED AGAIN, BUT NO BASIS FOR ALLOWANCE HAS BEEN FOUND.