B-120219, DECEMBER 1, 1954, 34 COMP. GEN. 263

B-120219, DECEMBER 1, 1954, 34 COMP. GEN. 263

PAY - DE FACTO STATUS - RETENTION OF PAY UNDER ORDERS WHICH PROVIDED THAT ACCEPTANCE OF COMMISSIONS IN THE REGULAR ARMY WOULD NOT AFFECT EXISTING COMMISSIONS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, EXCEPT THE TERMINAL LEAVE PROMOTIONS, AND THAT ACCEPTANCE WOULD CONSTITUTE APPOINTMENT IN THE ARMY OF THE UNITED STATES OF THOSE OFFICERS WHO HELD COMMISSIONS ONLY IN THE RESERVE CORPS, AN OFFICER WHO WAS A MAJOR IN THE ARMY OF THE UNITED STATES IN ACTIVE STATUS AND WHO WAS PROMOTED TO A LIEUTENANT COLONEL IN THE RESERVE CORPS WHILE ON TERMINAL LEAVE IS NOT A DE FACTO OFFICER SO AS TO BE ENTITLED TO RETAIN THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL RECEIVED AFTER ACCEPTANCE OF COMMISSION AS A CAPTAIN IN THE REGULAR ARMY.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL JOSEPH E. LABUDA, DECEMBER 1, 1954:

REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1954, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 22, 1954, WHICH DISALLOWED YOUR CLAIM FOR $574 REPRESENTING THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL AND THOSE OF A MAJOR FOR THE PERIOD JULY 25, 1946, TO MARCH 31, 1947. THAT AMOUNT WAS COLLECTED FROM YOU ON THE BASIS THAT YOU SHOULD HAVE BEEN PAID DURING THE SAID PERIOD AS A MAJOR AND NOT AS A LIEUTENANT COLONEL.

YOU REQUEST FURTHER CONSIDERATION ON THE BASIS THAT IN DISALLOWING YOUR CLAIM THIS OFFICE DID NOT CONSIDER DECISION OF MAY 26, 1947, B 65956, NOR PUBLIC LAW NO. 220, 82ND CONGRESS, NOR THE DECISION OF THE UNITED STATES SUPREME COURT IN THE CASE OF UNITED STATES V. ROYER, 268 U.S.C 394. ALSO, YOU CALL ATTENTION TO THAT PART OF PARAGRAPH 2 IN WAR DEPARTMENT SPECIAL ORDERS NO. 148, DATED JULY 5, 1946, STATING THAT "IN THE CASE OF THOSE APPOINTEES WHO HOLD ONLY A COMMISSION IN THE RES OR NGUS, THIS ORDER CONSTITUTES APMT (APPOINTMENT) IN THE AUS WITHOUT COMPONENT IN THE SAME GRADE AS HELD IN THE RES OR NGUS," IT BEING STATED BY YOU THAT YOU WERE A RESERVE OFFICER AT THE TIME OF YOUR APPOINTMENT AS LIEUTENANT COLONEL AS EVIDENCED BY PARAGRAPH 9 OF SPECIAL ORDERS NO. 316, DATED DECEMBER 26, 1945, HEADQUARTERS, SEYMOUR JOHNSON FIELD, NORTH CAROLINA.

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT YOU WERE PROMOTED TO MAJOR, ARMY OF THE UNITED STATES, ON NOVEMBER 3, 1943; THAT YOU WERE APPOINTED MAJOR, AIR CORPS RESERVE, ON OCTOBER 31, 1945, WHICH YOU ACCEPTED ON THE SAME DATE; THAT YOU WERE PROMOTED TO LIEUTENANT COLONEL, AIR RESERVE, ON DECEMBER 26, 1945; AND THAT YOU WERE APPOINTED CAPTAIN, AIR CORPS, REGULAR ARMY, ON JULY 5, 1946, TO RANK FROM MARCH 11, 1942, WHICH APPOINTMENT YOU ACCEPTED ON JULY 25, 1946. IT IS REPORTED ALSO THAT YOUR COMMISSION AS LIEUTENANT COLONEL, AIR RESERVE, WAS VACATED BY THE ACCEPTANCE OF YOUR APPOINTMENT AS CAPTAIN, AIR CORPS, REGULAR ARMY.

IT APPEARS THAT BY PARAGRAPH 1, SPECIAL ORDERS NO. 279, HEADQUARTERS SEYMOUR JOHNSON FIELD, .C., DATED NOVEMBER 8, 1945, WHILE YOU WERE SERVING ON ACTIVE DUTY AS A MAJOR, ARMY OF THE UNITED STATES ( AUS), YOU WERE GRANTED LEAVE OF ABSENCE EFFECTIVE NOVEMBER 10, 1945, AND WERE DIRECTED TO PROCEED TO YOUR HOME AND REVERT TO AN INACTIVE STATUS UPON EXPIRATION OF TERMINAL LEAVE ON MARCH 12, 1946. AT THAT TIME YOU ALSO HELD AN INACTIVE COMMISSION AS A MAJOR IN THE OFFICERS' RESERVE CORPS. WHILE ON TERMINAL LEAVE AS AN AUS MAJOR, YOUR PROMOTION TO THE GRADE OF LIEUTENANT COLONEL IN THE OFFICERS' RESERVE CORPS WAS ANNOUNCED BY PARAGRAPH 9 OF SPECIAL ORDERS NO. 316, HEADQUARTERS SEYMOUR JOHNSON FIELD, N.C., DATED DECEMBER 26, 1945, WITH RANK FROM THAT DATE. THIS DID NOT AFFECT YOUR STATUS AS MAJOR, AUS, AND, PRESUMABLY, YOU CONTINUED TO DRAW YOUR ACTIVE DUTY PAY AND ALLOWANCES IN THAT STATUS FOR THE BALANCE OF YOUR TERMINAL LEAVE. YOUR APPOINTMENT AS A CAPTAIN IN THE REGULAR ARMY WAS ANNOUNCED THE NEXT YEAR IN PARAGRAPH 2, SPECIAL ORDERS NO. 148, WAR DEPARTMENT, DATED JULY 5, 1946. AT THAT TIME YOU WERE A MAJOR, AUS, AND A LIEUTENANT COLONEL IN THE OFFICERS' RESERVE CORPS. THE LATTER ORDERS, ANNOUNCING YOUR APPOINTMENT AS A CAPTAIN IN THE REGULAR ARMY SPECIFICALLY ADVISED YOU AS FOLLOWS:

2. DP ANNOUNCEMENT IS MADE OF THE APMT OF THE FOL-NAMED OFFICERS OR FORMER OFFICERS AUS, RES AND NGUS IN THE RA EFF THIS DATE WITH GRADE, DATE OF RANK, AND IN THE BRANCH INDICATED. THE GRADE AND DATE OF RANK OF EACH INDIVIDUAL AS SHOWN IN THIS ORDER IS COMPUTED AS OF 28 JUNE 1946.

ACCEPTANCE OF THIS COMMISSION IN THE RA WILL NOT AFFECT ANY EXISTING COMMISSION IN THE AUS WITHOUT COMPONENT WITH THE EXCEPTION THAT THOSE COMMISSIONS NOW HELD AS A RESULT OF PROMOTIONS UNDER THE PROVISIONS EMBODIED IN CIR 10 OR CIR 140 WD 1946 ARE ADMINISTRATIVELY VACATED AND APMT IN THE AUS IS HEREBY EFFECTED IN THE GRADE HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY. IN THOSE CASES WHERE APMT IN THE RA EFFECTED BY THIS ORDER IS IN THE SAME GRADE AS FORMERLY OR PRESENTLY HELD THE RA GRADE WILL GOVERN.

IN THE CASE OF THOSE APPOINTEES WHO HOLD ONLY A COMMISSION IN THE RES OR NGUS, THIS ORDER CONSTITUTES APMT IN THE AUS WITHOUT COMPONENT IN THE SAME GRADE AS HELD IN THE RES OR NGUS.

A FORMER OFFICER APTD BY THIS ORDER IN RA IS HEREBY APTD IN THE AUS WITHOUT COMPONENT IN THE GRADE HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM AD.

PARAGRAPH 26, WAR DEPARTMENT SPECIAL ORDERS NO. 180, DATED AUGUST 19, 1946, ASSIGNING YOU TO A STATION AFTER YOUR APPOINTMENT IN THE REGULAR ARMY AS A CAPTAIN, REFERRED TO YOU AS " LT COL JOSEPH E. LABUDA.' APPEARS THAT ON THE BASIS OF THE ORDERS OF DECEMBER 26, 1945, PROMOTING YOU TO THE GRADE OF LIEUTENANT COLONEL IN THE OFFICERS' RESERVE CORPS, A TELEGRAM FROM THE ADJUTANT GENERAL DATED JUNE 28, 1946, ADDRESSED TO YOU BY THAT TITLE AND NOTIFYING YOU OF YOUR APPOINTMENT AS A CAPTAIN IN THE REGULAR ARMY, AND THE SAID PARAGRAPH 26 OF SPECIAL ORDERS NO. 180, ASSIGNING YOU TO A STATION AFTER YOUR APPOINTMENT AS A CAPTAIN IN THE REGULAR ARMY, WHICH REFERRED TO YOU AS A LIEUTENANT COLONEL, YOU USED THAT TITLE AND RECEIVED THE PAY AND ALLOWANCES OF THAT GRADE DURING THE PERIOD COVERED BY YOUR CLAIM AFTER YOU HAD BEEN APPOINTED IN THE REGULAR ARMY.

IT SHOULD HAVE BEEN APPARENT TO YOU FROM THE LANGUAGE OF THE QUOTED PROVISIONS OF THE SPECIAL ORDERS ANNOUNCING YOUR APPOINTMENT IN THE REGULAR ARMY THAT YOU WERE NOT TO CONTINUE TO HOLD YOUR COMMISSION IN THE OFFICERS' RESERVE CORPS AFTER YOUR ACCEPTANCE OF A REGULAR ARMY COMMISSION. SEE, ALSO, PARAGRAPH 15, AR 140-5, DATED JUNE 17, 1941, AND DIGEST OF OPINIONS, JAG, ARMY, 1912-1940, SECTION 1344 (1), PAGE 665, PROVIDING AND HOLDING THAT THE ACCEPTANCE OF A REGULAR ARMY APPOINTMENT AUTOMATICALLY TERMINATES A COMMISSION IN THE OFFICERS' RESERVE CORPS. THE STATEMENT IN THE ORDERS ANNOUNCING YOUR APPOINTMENT IN THE REGULAR ARMY THAT ACCEPTANCE OF THE REGULAR ARMY COMMISSION WOULD NOT AFFECT ANY EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT (EXCEPT ONE HELD AS A RESULT OF TERMINAL LEAVE PROMOTION) CLEARLY IMPLIED THAT SUCH ACCEPTANCE WOULD AFFECT ANY EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES WITH COMPONENT (WHICH, OF COURSE, WOULD INCLUDE ANY COMMISSION IN THE OFFICERS' RESERVE CORPS), PARTICULARLY WHEN READ IN CONJUNCTION WITH THE NEXT PARAGRAPH, APPLICABLE TO OFFICERS WHO HELD ONLY A COMMISSION IN THE RESERVE OR NATIONAL GUARD OF THE UNITED STATES, WHICH APPOINTED SUCH OFFICERS TO THE SAME GRADES IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AS THEY THEN HELD IN THE RESERVE OR THE NATIONAL GUARD OF THE UNITED STATES. WHILE THIS LATTER PROVISION DID NOT APPLY TO YOU DIRECTLY, SINCE YOU ALSO HELD A COMMISSION IN THE ARMY OF THE UNITED STATES, IT DID CLEARLY INDICATE THAT PERSONS APPOINTED IN THE REGULAR ARMY WOULD NOT SERVE UNDER A COMMISSION IN THE RESERVE CORPS. THIS WAS FURTHER BORNE OUT BY THE SUCCEEDING PROVISION THAT FORMER OFFICERS APPOINTED BY THAT ORDER IN THE REGULAR ARMY WERE ALSO APPOINTED IN THE ARMY OF THE UNITED STATES "WITHOUT COMPONENT" IN THE GRADE HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY. READING THESE PROVISIONS TOGETHER, THE PICTURE SEEMS CLEAR ENOUGH THAT PERSONS APPOINTED IN THE REGULAR ARMY MIGHT SERVE UNDER THEIR HIGHER GRADES IN THE ARMY OF THE UNITED STATES (EXCEPT TERMINAL LEAVE PROMOTIONS) BUT NOT UNDER THEIR COMMISSIONS IN THE RESERVE CORPS OR IN THE NATIONAL GUARD OF THE UNITED STATES. MOREOVER, YOUR PROMOTION TO LIEUTENANT COLONEL, AIR RESERVE, ON DECEMBER 26, 1945, WHILE YOU WERE ON TERMINAL LEAVE, APPARENTLY WAS IN THE NATURE OF A TERMINAL LEAVE PROMOTION AND EXPRESS PROVISION WAS MADE IN THE SAID SPECIAL ORDERS FOR THE CANCELLATION OF TERMINAL LEAVE PROMOTIONS. IS THE VIEW OF THIS OFFICE, THEREFORE, THAT THE PROVISIONS OF SUCH SPECIAL ORDERS WERE SUFFICIENT TO HAVE PLACED YOU ON NOTICE THAT YOUR RESERVE COMMISSION AS A LIEUTENANT COLONEL WAS TERMINATED OR, AT LEAST, TO HAVE CAUSED YOU IN GOOD FAITH TO MAKE INQUIRY CONCERNING THE EFFECT ON THAT COMMISSION OF YOUR APPOINTMENT IN THE REGULAR ARMY BEFORE PURPORTING TO SERVE AS A LIEUTENANT COLONEL AND COLLECTING THE PAY AND ALLOWANCES OF THAT GRADE, EVEN THOUGH THE ORDERS ASSIGNING YOU TO A STATION WERE MISTAKENLY ADDRESSED TO YOU AS A LIEUTENANT COLONEL INSTEAD OF MAJOR. STATED IN DECISION OF MAY 26, 1947, B-65956, A MERE ADMINISTRATIVE ERROR IN REFERRING TO AN OFFICER'S RANK DOES NOT CHANGE HIS STATUS IN THAT RESPECT OR AFFORD A BASIS FOR HIM TO ASSUME THAT HE HAS BEEN APPOINTED OR PROMOTED TO A HIGHER RANK.

THE MATTER HAS BEEN CAREFULLY CONSIDERED BUT THIS OFFICE MAY NOT CONCLUDE THAT THE PRESENT RECORD SUFFICIENTLY ESTABLISHES THAT IN COLLECTING THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL YOU ACTED IN SUCH GOOD FAITH AS TO PERMIT YOU TO RETAIN THE OVERPAYMENT, WITHIN THE PRINCIPLES OF THE CITED ROYER CASE AND DECISIONS OF THIS OFFICE.

WITH RESPECT TO YOUR REFERENCE TO PUBLIC LAW 220, 83D CONGRESS, IT IS ASSUMED THAT YOU HAVE IN MIND THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 656, PUBLIC LAW 220, 82D CONGRESS, ST SESSION, SUBSECTION (B) OF WHICH READS AS FOLLOWS:

(B) THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED, OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (2) OF THIS SECTION * * *.

THESE PROVISIONS OF LAW EXPRESSLY PROVIDE FOR PAYMENT OF AMOUNTS FOUND DUE "AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION.' SINCE IT DOES NOT APPEAR THAT ANY ACTION WAS TAKEN IN YOUR CASE UNDER THE 1946 ACT, EITHER AS ORIGINALLY ENACTED OR AS AMENDED, THAT STATUTE AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.