B-128169, SEP. 28, 1965

B-128169, SEP. 28, 1965

TO MR. E. GARRISON WOOD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1965, IN WHICH YOU REQUEST RECONSIDERATION OF THE ACTION TAKEN IN OUR DECISIONS OF FEBRUARY 1, 1957, AND JULY 24, 1963, B-128169, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR SEVERANCE PAY INCIDENT TO THE TERMINATION OF YOUR COMMISSION AS A MAJOR AND YOUR HONORABLE DISCHARGE FROM THE UNITED STATES AIR FORCE ON JULY 22, 1949. ALSO, WE HAVE RECEIVED YOUR LETTER OF JULY 27, 1965, CONCERNING THE SAME MATTER. IN CONNECTION WITH YOUR REQUEST FOR RECONSIDERATION OF OUR ACTION IN YOUR CASE, YOU HAVE FURNISHED PHOTOCOPIES OF VARIOUS PAPERS RELATING THERETO, AND WE HAVE OBTAINED FROM HEADQUARTERS UNITED STATES AIR FORCE A REPORT, DATED AUGUST 20, 1965, REGARDING THE ADMINISTRATIVE ACTION TAKEN IN THE CASE.

IT IS YOUR CONTENTION THAT YOU ACCEPTED YOUR APPOINTMENT AS A FIRST LIEUTENANT IN THE REGULAR ARMY AIR CORPS ON JULY 8, 1946; THAT, ON JULY 22, 1949, YOU HAD COMPLETED MORE THAN 3 YEARS OF SERVICE AFTER THE ACCEPTANCE OF SUCH APPOINTMENT; AND THAT, THEREFORE, YOUR DISCHARGE FROM THE AIR FORCE ON THE LATTER DATE UNDER SECTION 23 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 484A (1946 ED.), WAS ILLEGAL.

THE RECORDS NOW IN OUR FILE RELATING TO YOUR CASE SHOW THAT, ON JULY 3, 1946, WHILE YOU WERE SERVING ON DUTY AT SAIPAN AIR BASE COMMAND AS A LIEUTENANT COLONEL, AIR CORPS, ARMY OF THE UNITED STATES, THE FOLLOWING MESSAGE WAS DISPATCHED BY THE ADJUTANT GENERAL'S OFFICE, WAR DEPARTMENT, FOR RELAY OF THE PERTINENT PART THEREOF TO YOU AND THE OTHER OFFICERS CONCERNED:

"IT IS REQUESTED THAT THE FOLLOWING MESSAGE BE RELAYED TO OFFICERS LISTED BELOW WHO ARE STATIONED YOUR THEATER PD ADVISE TAG ATTN AGSO DASH R OF ANY CHANGE IN ADDRESS WHICH WILL DELAY OR PREVENT DELIVERY OF LETTER OF APMT PD QUOTE UPON CONFIRMATION BY THE SENATE YOU WILL BE APPOINTED IN THE REGULAR ARMY IN THE GRADE AND BRANCH INDICATED PD TELEGRAPH TAG WASHINGTON DC ATTENTION AGSO DASH R IMMEDIATELY STATING YOUR INTENTION RPT INTENTION TO ACCEPT OR DECLINE APPOINTMENT PD IF YOU INTEND TO ACCEPT STATE CORRECT ADDRESS IF DIFFERENT FROM THAT USED THIS MESSAGE PD IN REPLY STATE WHETHER OR NOT ON ACTIVE DUTY CMA TERMINAL LEAVE OR INACTIVE STATUS PD IN SIGNATURE OF YOUR TELEGRAPHIC REPLY TO THIS MESSAGE INDICATE IF ON ACTIVE DUTY YOUR TEMPORARY GRADE AND ARM OR SERVICE CMA IF NOT ON ACTIVE DUTY OR ON TERMINAL LEAVE SHOW TEMPORARY GRADE HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY PD AFTER SENATE CONFIRMATION CMA LETTER OF APPOINTMENT AND FULL INFORMATION WILL BE MAILED TO YOU UNQUOTE IMPERATIVE YOU CITE AGSO DASH R IN ALL REPLIES"

IT WILL BE NOTED THAT IT WAS DEFINITELY SET FORTH IN THAT MESSAGE THAT NO APPOINTMENT HAD BEEN MADE AND THAT AFTER SENATE CONFIRMATION A LETTER OF APPOINTMENT WOULD BE MAILED TO YOU. THE REQUEST FOR AN ANSWER CONTAINED THEREIN REFERRED TO INTENTION TO ACCEPT, NOT ACTUAL ACCEPTANCE. THERE IS NOTHING IN THAT MESSAGE WHICH SUGGESTED THAT YOU SHOULD OR COULD ACCEPT SUCH APPOINTMENT PRIOR TO THE TIME OF ITS ACTUAL RECEIPT BY YOU.

THE ANNOUNCEMENT OF YOUR APPOINTMENT TO THE GRADE OF FIRST LIEUTENANT IN THE REGULAR ARMY AIR CORPS WAS MADE IN SPECIAL ORDERS NO. 148, WAR DEPARTMENT, JULY 5, 1946, AND IT APPEARS THAT SUCH APPOINTMENT WAS CONFIRMED BY THE SENATE ON THE SAME DAY. IT IS INDICATED THAT, ON JULY 5, 1946, AFTER THE SENATE HAD CONFIRMED YOUR APPOINTMENT, A LETTER OF APPOINTMENT, TOGETHER WITH AN OATH OF OFFICE, WAS FORWARDED TO YOU, AND THAT, IN SUCH LETTER, YOU WERE REQUESTED TO EXECUTE THE OATH OF OFFICE AND RETURN IT WITH THE LEAST PRACTICABLE DELAY, AND TO IMMEDIATELY ADVISE BY TELEGRAM YOUR ACCEPTANCE OR DECLINATION OF THE APPOINTMENT.

IN REPLY TO THE MESSAGE DISPATCHED BY THE ADJUTANT GENERAL'S OFFICE ON JULY 3, 1946, A RADIO MESSAGE WAS RECEIVED FROM YOUR OVERSEA COMMANDER ON JULY 8, 1946, WHICH STATED:

"LIEUTENANT COLONEL E. GARRISON WOOD, 0437306, AIR CORPS, PRESENT FOR DUTY AT SAIPAN AIR BASE COMMAND (PROVISIONAL), APO 244 ACCEPTS REGULAR ARMY COMMISSION GRADE OF FIRST LIEUTENANT, AIR CORPS, ARMY SERIAL NUMBER 0 32966, RANK JULY 6, 1943.'

SUBSEQUENTLY, ON JULY 25, 1946, A MESSAGE WAS DISPATCHED FROM SAIPAN AIR BASE COMMAND, ISING,"I, E. GARRISON WOOD, 0437306, LIEUTENANT COLONEL, HEREBY ACCEPT A COMMISSION IN THE UNITED STATES ARMY AS FIRST LIEUTENANT. SIGNED WOOD.' IT IS SHOWN THAT YOU EXECUTED AND SIGNED YOUR OATH OF OFFICE ON JULY 26, 1946. IT IS CONSIDERED BY THE DEPARTMENT OF THE AIR FORCE THAT YOU ACCEPTED YOUR APPOINTMENT AS FIRST LIEUTENANT, REGULAR ARMY AIR CORPS, ON JULY 25, 1946. YOU WERE ADVISED IN DEPARTMENT OF THE AIR FORCE LETTER OF MARCH 2, 1953, THAT THE MESSAGE OF JULY 8, 1946, COULD NOT BE CONSIDERED A VALID ACCEPTANCE OF APPOINTMENT IN THE REGULAR ESTABLISHMENT INASMUCH AS, AT THE TIME THE MESSAGE WAS SENT, YOU HAD NOT RECEIVED A FORMAL TENDER OF APPOINTMENT.

WE HAVE LONG HELD THAT THERE CANNOT BE AN ACCEPTANCE OF AN APPOINTMENT BEFORE THE ACTION OF THE APPOINTING POWER IS COMPLETED AND THE APPOINTEE IS OFFICIALLY NOTIFIED, EITHER FORMALLY OR INFORMALLY, OF THE APPOINTMENT, BUT THAT, AFTER SUCH ACTION IS TAKEN, THE APPOINTMENT BECOMES EFFECTIVE UPON THE APPOINTEE'S ACCEPTANCE OF THE APPOINTMENT. THE APPOINTEE MAY ACCEPT THE APPOINTMENT FORMALLY, BY TAKING THE OATH OF OFFICE, OR BY ENTERING ON DUTY PURSUANT TO PROPER ORDERS. SEE 21 COMP. GEN. 819. SEE ALSO, 4 COMP. GEN. 845, 9 COMP. GEN. 190, 18 COMP. GEN. 637, AND 21 COMP. GEN. 817. SINCE THERE IS NO SHOWING THAT YOU HAD BEEN OFFICIALLY NOTIFIED OF YOUR APPOINTMENT WHEN THE MESSAGE OF JULY 8, 1946, WAS SENT, THAT MESSAGE CANNOT BE CONSIDERED A VALID ACCEPTANCE OF THE APPOINTMENT.

YOU HAVE STATED THAT YOU DID NOT RECEIVE THE NOTIFICATION OF THE REVOCATION OF YOUR APPOINTMENT UNTIL JULY 27 OR 28, 1949. THE DEPARTMENT OF THE AIR FORCE REPORT OF AUGUST 20, 1965, INCLUDES THE FOLLOWING:

"AS FOR THE DATE ON WHICH MR. WOOD WAS NOTIFIED THAT HIS COMMISSION WAS REVOKED, WE HAVE NOT BEEN ABLE TO PINPOINT THE EXACT DATE. HOWEVER, WE ARE ATTACHING DOCUMENTS WHICH WE THINK ESTABLISH WITH REASONABLE CERTAINTY THAT MR. WOOD ACTUALLY WAS NOTIFIED BEFORE 25 JULY 1949. THE ATTACHED MESSAGE DATED 21 JULY 1949, INSTRUCTED MR. WOOD'S COMMANDER AT READING MUNICIPAL AIRPORT TO IMMEDIATELY ADVISE HIM OF THE REVOCATION, TO PICK UP AND FORWARD TO WASHINGTON HIS IDENTIFICATION CARD, AND TO NOTIFY AIR FORCE PERSONNEL BY RADIO MESSAGE OF THE DATE OF NOTIFICATION.

"WE HAVE NOT FOUND ANY MESSAGE AS TO THE NOTIFICATION DATE, BUT WE ARE ATTACHING A COPY OF A LETTER DATED 25 JULY 1949, TRANSMITTING FROM READING MR. WOOD'S I.D. CARD, AS WELL AS A COPY OF THE ENVELOPE, POSTMARKED 25 JULY AT READING, IN WHICH IT WAS ENCLOSED. IT APPEARS, THEREFORE, THAT MR. WOOD WAS NOTIFIED OF THE REVOCATION AND, AS A RESULT, GAVE UP HIS I.D. CARD SOMETIME BETWEEN 21 JULY AND 25 JULY.'

WE HAVE CAREFULLY EXAMINED THE VARIOUS RECORDS FURNISHED BY YOU AND BY THE DEPARTMENT OF THE AIR FORCE, BUT WE FIND NO BASIS FOR CONCLUDING THAT THE VALIDITY OF YOUR CLAIM HAS BEEN ESTABLISHED. IT MAY BE STATED THAT IT IS THE ESTABLISHED RULE THAT, IN ORDER TO JUSTIFY THE ACCOUNTING OFFICERS OF THE UNITED STATES IN CERTIFYING A CLAIM FOR PAYMENT FROM APPROPRIATED MONEYS, IT IS INCUMBENT UPON THE CLAIMANT TO ESTABLISH CLEARLY THE FACTS AND PRINCIPLES ON WHICH HIS CLAIM IS BASED, AND THAT SUCH ACCOUNTING OFFICERS SHALL REJECT OR DISALLOW ALL CLAIMS TO WHICH THEY BELIEVE THERE MAY BE A SUBSTANTIAL DEFENSE IN LAW OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT. SEE LONGWILL V. UNITED STATES, 17 CT. CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT. CL. 316 (1884).