AUGUST 5, 1921, 1 COMP. GEN. 47

AUGUST 5, 1921, 1 COMP. GEN. 47

NATIONAL GUARD IN FEDERAL SERVICE - TERMINATION OF COMMISSIONS THE APPOINTMENT OF AN OFFICER OF THE NATIONAL GUARD AS AN OFFICER IN THE UNITED STATES ARMY SUBJECT TO EXAMINATION, WHEN DRAFTED IN THE FEDERAL SERVICE WITH HIS ORGANIZATION, TERMINATED UPON NOTICE TO HIM OF HIS FAILURE TO PASS THE REQUIRED EXAMINATION, AND AN ORDER OF THE WAR DEPARTMENT PURPORTING TO REVOKE SUCH DISCHARGE AND DIRECTING HIM TO REPORT FOR FURTHER EXAMINATION IS INSUFFICIENT TO RESTORE HIS COMMISSION OR TO FEDERALLY RECOGNIZE HIM AS AN OFFICER OF THE NATIONAL GUARD IN FEDERAL SERVICE SO AS TO ENTITLE HIM TO PAY FROM DATE OF THE ORDER TO DATE OF FINAL ACTION BY THE EXAMINING BOARD.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 5, 1921:

FRANK GEERE, MAJOR, C.A.C., DISBURSING OFFICER, APPLIED MAY 18, 1921, TO THE COMPTROLLER OF THE TREASURY, FOR REVISION OF THE ACTION OF THE AUDITOR FOR THE WAR DEPARTMENT IN DISALLOWING IN SETTLEMENT NO. 58343, DATED JUNE 30, 1920, OF HIS DISBURSING ACCOUNTS FOR THE PERIOD ENDING MAY 31, 1918, A PAYMENT OF $166.67 TO ARTHUR H. JOHNSON FOR THE MONTH OF DECEMBER, 1917, THE MONTHLY PAY OF A FIRST LIEUTENANT, FIRST CONNECTICUT INFANTRY, NATIONAL GUARD.

IT APPEARS THAT THE FIRST CONNECTICUT INFANTRY, NATIONAL GUARD, WAS CALLED INTO THE FEDERAL SERVICE ON MARCH 16, 1917, AND ARTHUR H. JOHNSON, WHO HAD THERETOFORE BEEN SERVING AS A SECOND LIEUTENANT, WAS APPOINTED ON THAT DATE BY THE GOVERNOR OF CONNECTICUT AS A FIRST LIEUTENANT SUBJECT TO EXAMINATION; THAT ONE HARRIS WAS LIKEWISE, SUBJECT TO EXAMINATION, APPOINTED TO TAKE THE COMMISSION OF SECOND LIEUTENANT AND HARRIS, SUCCESSFULLY PASSED THE EXAMINATION ON JUNE 20, 1917, AND WAS ANNOUNCED IN ORDERS AS HAVING BEEN SO APPOINTED; THAT JOHNSON WAS EXAMINED BY A BOARD OF OFFICERS ON JUNE 26, 1917, AND BY A REPORT APPROVED ON JULY 5 WAS FOUND DISQUALIFIED; THAT THE ORGANIZATION WAS DRAFTED INTO THE FEDERAL SERVICE ON AUGUST 4; AND THAT ON AUGUST 8 JOHNSON WAS NOTIFIED BY THE COMMANDING GENERAL HEADQUARTERS, NORTHEASTERN DEPARTMENT, AS FOLLOWS:

BY DIRECTION OF THE WAR DEPARTMENT * * * YOU ARE INFORMED THAT HAVING BEEN APPOINTED SUBJECT TO EXAMINATION, AND HAVING FAILED IN THE SUBSEQUENT PROFESSIONAL EXAMINATION, YOU ARE NO LONGER RECOGNIZED AS AN OFFICER AND ARE RELEASED FROM SERVICE, AND BY AUTHORITY OF THE PRESIDENT ARE EXCUSED FROM THE DRAFT OF THE NATIONAL GUARD.

SO FAR AS APPEARS, JOHNSON RETURNED TO HIS HOME AND WAS THERE WHEN SPECIAL ORDERS, NO. 178, HEADQUARTERS, NORTHEASTERN DEPARTMENT, DATED NOVEMBER 23, 1917, WERE ISSUED PURPORTING TO REVOKE HIS DISCHARGE AND DIRECTING HIM TO REPORT, WHEN NOTIFIED, BEFORE AN EXAMINING BOARD AT BOSTON FOR EXAMINATION IN ACCORDANCE WITH SECTION 9 OF THE ACT OF MAY 18, 1917, 40 STAT., 82. HE WAS NOTIFIED TO REPORT ON DECEMBER 12 FOR EXAMINATION AND WAS DISCHARGED ON JANUARY 22, 1918, BY REASON OF THE ADVERSE FINDINGS OF THE BOARD. THE CLAIMANT, AS DISBURSING OFFICER, PAID JOHNSON $166.67 AS THE PAY OF A FIRST LIEUTENANT FOR THE MONTH OF DECEMBER, 1917, AND THE AUDITOR DISALLOWED THE PAYMENT IN THE SETTLEMENT OF HIS ACCOUNTS ON THE GROUND THAT THE ORDER OF REVOCATION WAS INSUFFICIENT TO REINSTATE JOHNSON AS A FIRST LIEUTENANT IN THE CONNECTICUT NATIONAL GUARD.

IT IS CONTENDED THAT THE LETTER OF AUGUST 8, INFORMING JOHNSON THAT HE WAS NO LONGER RECOGNIZED AS AN OFFICER OF THE NATIONAL GUARD, THEN IN THE FEDERAL SERVICE BY DRAFT, WAS INSUFFICIENT TO DISCHARGE HIM FROM HIS COMMISSION AS FIRST LIEUTENANT; THAT THE SEPARATION COULD ONLY BE EFFECTED BY A DISCHARGE FOR A PHYSICAL DISABILITY, BY ORDER OF A COURT MARTIAL, BY ORDER OF THE PRESIDENT, OR ON THE APPROVED ADVERSE REPORT OF A BOARD OF OFFICERS; AND HENCE THAT JOHNSON WAS IN THE MILITARY SERVICE DURING THE MONTH OF DECEMBER, 1917, AND THE PAYMENT WAS CONSEQUENTLY LEGAL.

CLAIMANT ERRS IN ASSUMING THAT JOHNSON WAS A DE JURE FIRST LIEUTENANT IN THE FEDERAL SERVICE WITH HIS ORGANIZATION BY DRAFT. SECTION 75 OF THE ACT OF JUNE 3, 1916, 39 STAT., 202, READS:

THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO ANY PERSON HEREAFTER APPOINTED AN OFFICER OF THE NATIONAL GUARD UNLESS HE FIRST SHALL HAVE SUCCESSFULLY PASSED SUCH TESTS AS TO HIS PHYSICAL, MORAL, AND PROFESSIONAL FITNESS AS THE PRESIDENT SHALL PRESCRIBE. THE EXAMINATION TO DETERMINE SUCH QUALIFICATIONS FOR COMMISSION SHALL BE CONDUCTED BY A BOARD OF THREE COMMISSIONED OFFICERS APPOINTED BY THE SECRETARY OF WAR FROM THE REGULAR ARMY OR THE NATIONAL GUARD, OR BOTH.

IT HAS BEEN HELD, GREER V. UNITED STATES, 3 CT.CLS., 182, AND IN THE ABSENCE OF A STATUTE REQUIRING THE PASSING OF AN EXAMINATION AS A CONDITION PRECEDENT TO APPOINTMENT AS AN OFFICER, THAT A COMMISSION ACCEPTED SUBJECT TO CONDITIONS SUBSEQUENT IS TERMINATED WHEN THE CONDITIONS ARE NOT MET AND WHEN THE PERSON WHO TENTATIVELY ACCEPTED IT IS NOTIFIED THEREOF. EVEN ASSUMING, WHICH IS NOT NOW DECIDED, THAT JOHNSON WAS A DE FACTO FIRST LIEUTENANT FROM MARCH 16, 1917, DATE OF HIS APPOINTMENT SUBJECT TO EXAMINATION, TO AUGUST 8, 1917, WHEN HE WAS NOTIFIED THAT HE HAD FAILED TO PASS THE REQUISITE EXAMINATION AND WAS NO LONGER RECOGNIZED AS AN OFFICER, THE DE FACTO STATUS TERMINATED ON THAT DATE. CONSEQUENTLY, THE REVOCATORY ORDER OF NOVEMBER 23, 1917, COULD NOT OPERATE TO PLACE HIM IN THE MILITARY SERVICE AS A FIRST LIEUTENANT FOR HE NEVER HELD A DE JURE COMMISSION AS SUCH; OR AS A SECOND LIEUTENANT, FOR THE APPOINTMENT AND QUALIFICATION OF HIS SUCCESSOR TERMINATED HIS COMMISSION AS SECOND LIEUTENANT, BLAKE V. UNITED STATES, 103 U.S., 227.