AUGUST 12, 1921, 1 COMP. GEN. 73
Highlights
TERMINATE UPON THE DATE OF THE ORDER RELIEVING HIM FROM ACTIVE DUTY IF THE CONDITIONS NAMED IN THE ORDER ARE OTHERWISE FULFILLED. THE DATE THE OFFICER RECEIVES THE ORDER IS IMMATERIAL. AT WHICH DATE HE WAS ILL AND NOT IN ACTUAL PERFORMANCE OF DUTY. CLAIMANT WAS PLACED ON ACTIVE DUTY BY PARAGRAPH 337 OF SPECIAL ORDERS. IS RELIEVED FROM DUTY AS PROFESSOR OF MILITARY SCIENCE AND TACTICS AT THE CATHOLIC UNIVERSITY OF AMERICA. HE IS ASSIGNED. HE BECAME ILL AND WAS CONFINED TO HIS HOME IN THE CITY OF WASHINGTON FOR SEVERAL MONTHS. CLAIMANT'S COMMAND WAS DURING DECEMBER. SUBORDINATE OFFICERS WITH THE COMMAND WERE EITHER RELIEVED OR DISCHARGED. THE CONTRACT OF THE CONTRACT SURGEON EMPLOYED FOR DUTY WITH THE COMMAND WAS TERMINATED.
AUGUST 12, 1921, 1 COMP. GEN. 73
RELEASE FROM ACTIVE DUTY - ARMY OFFICER THE ASSIGNMENT OF A RETIRED ARMY OFFICER TO ACTIVE DUTY AND HIS RIGHT TO THE FULL PAY AND ALLOWANCES OF HIS GRADE BY VIRTUE OF ACT OF MAY 18, 1917, 40 STAT., 76, TERMINATE UPON THE DATE OF THE ORDER RELIEVING HIM FROM ACTIVE DUTY IF THE CONDITIONS NAMED IN THE ORDER ARE OTHERWISE FULFILLED, AND THE DATE THE OFFICER RECEIVES THE ORDER IS IMMATERIAL.
DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 12, 1921:
COL. JOHN A. DAPRAY, UNITED STATES ARMY, RETIRED, APPLIED JUNE 29, 1921, FOR REVISION OF THE ACTION OF THE AUDITOR FOR THE WAR DEPARTMENT IN DISALLOWING BY SETTLEMENT NO. 99198, DATED JULY 29, 1920, HIS CLAIM FOR THE ACTIVE-DUTY PAY AND ALLOWANCES OF HIS GRADE JANUARY 27 TO FEBRUARY 24, 1919, LESS RETIREMENT PAY RECEIVED DURING THE PERIOD, BECAUSE OF HIS FAILURE TO RECEIVE NOTICE UNTIL FEBRUARY 24, 1919, OF HIS RELIEF FROM ACTIVE DUTY BY ORDER DATED JANUARY 24, 1919, AT WHICH DATE HE WAS ILL AND NOT IN ACTUAL PERFORMANCE OF DUTY.
CLAIMANT WAS PLACED ON ACTIVE DUTY BY PARAGRAPH 337 OF SPECIAL ORDERS, NO. 208, DATED WAR DEPARTMENT, WASHINGTON, D.C., SEPTEMBER 5, 1918, AS FOLLOWS:
BY DIRECTION OF THE PRESIDENT, COL. JOHN A. DAPRAY, UNITED STATES ARMY RETIRED, IS RELIEVED FROM DUTY AS PROFESSOR OF MILITARY SCIENCE AND TACTICS AT THE CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C. HE IS ASSIGNED, UNDER SEC. 1 PARAGRAPH 3, ACT OF CONGRESS APPROVED MAY 18, 1917, TO ACTIVE DUTY AS COMMANDING OFFICER OF THE STUDENTS' ARMY TRAINING CORPS UNIT AT THAT INSTITUTION.
THE STATUTE CITED, 40 STAT., 76, ENTITLED "AN ACT TO AUTHORIZE THE PRESIDENT TO INCREASE TEMPORARILY THE MILITARY ESTABLISHMENT OF THE UNITED STATES," AUTHORIZED THE PRESIDENT, BY PARAGRAPH 3, SEC. 1, TO SECURE OFFICERS FOR THE INCREASED FORCES THEREIN PROVIDED, AMONG OTHER METHODS,"BY ASSIGNING RETIRED OFFICERS OF THE REGULAR ARMY TO ACTIVE DUTY WITH SUCH FORCE WITH THEIR RANK OF THE RETIRED LIST AND THE FULL PAY AND ALLOWANCES OF THEIR GRADE.'
PURSUANT TO THE ORDER OF SEPTEMBER 5, 1918, COL. DAPRAY TOOK COMMAND OF THE UNIT OF THE STUDENTS' ARMY TRAINING CORPS AT THE UNIVERSITY NAMED. OR ABOUT NOVEMBER 29, 1918, HE BECAME ILL AND WAS CONFINED TO HIS HOME IN THE CITY OF WASHINGTON FOR SEVERAL MONTHS, BEING REPORTED AS ,SICK IN QUARTERS" ON THE REPORTS OF HIS ORGANIZATION SO LONG AS IT EXISTED.
CLAIMANT'S COMMAND WAS DURING DECEMBER, 1918 AND JANUARY, 1919, DEMOBILIZED, SUBORDINATE OFFICERS WITH THE COMMAND WERE EITHER RELIEVED OR DISCHARGED, AND FINALLY, ON FEBRUARY 20, 1919, THE CONTRACT OF THE CONTRACT SURGEON EMPLOYED FOR DUTY WITH THE COMMAND WAS TERMINATED. CLAIMANT STATES THAT THIS CONTRACT SURGEON IS THE LAST PERSON UPON WHOM THE COMMAND OF THE ORGANIZATION DEVOLVED DURING HIS ABSENCE ON ACCOUNT OF ILLNESS. BECAUSE OF INQUIRY BE TELEPHONE IN FEBRUARY FROM THE ZONE FINANCE OFFICE AS TO HIS STATUS CLAIMANT WROTE THE ADJUTANT GENERAL AS TO THE MATTER AND ON FEBRUARY 24, 1919, RECEIVED IN RESPONSE A COPY OF PARAGRAPH 154 SPECIAL ORDERS NO. 20-O, DATED WAR DEPARTMENT, WASHINGTON, D.C., JANUARY 24, 1919, AS FOLLOWS:
EACH OF THE FOLLOWING-NAMED RETIRED OFFICERS IS RELIEVED FROM DUTY AT THE INSTITUTION SPECIFIED AFTER HIS NAME, AND FROM FURTHER DUTY WITH THE COMMITTEE ON EDUCATION AND SPECIAL TRAINING, AND WILL PROCEED TO HIS HOME AND UPON ARRIVAL THERE WILL REPORT BY TELEGRAPH TO THE ADJUTANT GENERAL OF THE ARMY. EACH OF THE OFFICERS NAMED IS RELIEVED FROM ACTIVE DUTY TO TAKE EFFECT UPON HIS ARRIVAL AT HIS HOME:
COLONEL JOHN A. DAPRAY, CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C.
CLAIM IS FOR ACTIVE-DUTY PAY AND ALLOWANCES TO THE DATE OF RECEIPT OF THIS ORDER IN THE CIRCUMSTANCES ALREADY INDICATED, AND THE CONTENTION IS MADE THAT CLAIMANT WAS ASSIGNED TO ACTIVE DUTY UNTIL THE ACTUAL RECEIPT OF THE ORDER RELIEVING HIM THEREFROM.
THE STATUTE UNDER WHICH HE WAS PLACED ON ACTIVE DUTY AUTHORIZES THE FULL PAY AND ALLOWANCES OF HIS GRADE WHILE ASSIGNED TO ACTIVE DUTY. IT HAS BEEN HELD, 8 COMP. DEC., 50, UNDER THE ACT OF NOVEMBER 3, 1893, 28 STAT., 7, AUTHORIZING THE FULL PAY AND ALLOWANCES OF THEIR GRADE TO RETIRED OFFICERS DETAILED AS PROFESSORS OF MILITARY SCIENCE AND TACTICS "WHEN SO DETAILED" THAT THEY WERE ENTITLED TO THE ACTIVE-DUTY PAY AND ALLOWANCES FROM THE DATE OF PROMULGATION OF THE ORDER SO DETAILING THEM.
BY THE SAME REASONING, UNDER A STATUTE AUTHORIZING THE FULL PAY AND ALLOWANCES TO RETIRED OFFICERS ASSIGNED TO ACTIVE DUTY, ACTIVE-DUTY PAY ACCRUES WHILE SO ASSIGNED, AND ONLY WHILE SO ASSIGNED, AND THE FAILURE TO RECEIVE NOTICE OF RELIEF FROM ACTIVE DUTY IN THE CIRCUMSTANCES OF THIS CASE CAN NOT CONTINUE THE ASSIGNMENT OF THE OFFICER TO ACTIVE DUTY.
THE FACT OF ASSIGNMENT TO ACTIVE DUTY IS ESTABLISHED BY THE ORDERS OF THE WAR DEPARTMENT. IN THIS CASE THE ORDER OF SEPTEMBER 5, 1918, ASSIGNED TO ACTIVE DUTY AND THE ORDER OF JANUARY 24, 1919, RELIEVED HIM FROM ACTIVE DUTY EFFECTIVE UPON HIS ARRIVAL HOME. AS CLAIMANT WAS THEN CONFINED TO HIS HOME BECAUSE OF ILLNESS THE LATTER ORDER MIGHT BE CONSTRUED AS A RELIEF FROM ACTIVE DUTY ON THE DATE OF ITS PROMULGATION. HOWEVER THAT MAY BE, I SHALL NOT NOW QUESTION THE ALLOWANCE BY THE DISBURSING OFFICER IN PAYING CLAIMANT'S JANUARY VOUCHER OF TWO DAYS FOR THE RECEIPT OF THE ORDER AND COMPLIANCE THEREWITH.
UPON A REVIEW OF THE MATTER NO DIFFERENCES ARE FOUND AND THE SETTLEMENT IS SUSTAINED.