B-112983, DEC. 2, 1955

B-112983, DEC. 2, 1955

TO LIEUTENANT COLONEL RICHARD L. MOSGROVE:

REFERENCE IS MADE TO LETTER OF OCTOBER 19, 1955, WITH ENCLOSURES, FROM YOUR ATTORNEYS ADVISING US OF THE MOTION FILED WITH THE COURT OF CLAIMS TO SUSPEND PROCEEDINGS IN THE CASE OF RICHARD L. MOSGROVE V. UNITED STATES, C.CLS. NO. 609-53, PENDING OUR ACTION ON A REQUEST FOR FURTHER CONSIDERATION OF YOUR CLAIM. SUCH CLAIM, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION ON JUNE 15, 1953, WAS FOR THE AMOUNT WITHHELD IN LIQUIDATION OF AN OVERPAYMENT MADE TO YOU REPRESENTING THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A CAPTAIN AND THOSE OF A MAJOR FOR THE PERIOD FROM SEPTEMBER 12, 1946, TO SEPTEMBER 13, 1950. THE REQUEST FOR RECONSIDERATION IS BASED ON THE BELIEF THAT THE FACTS IN YOUR CASE ARE IDENTICAL WITH THOSE UPON WHICH OUR DECISION OF DECEMBER 1, 1954, 34 COMP. GEN. 266, WAS BASED.

IT APPEARS FROM THAT DECISION THAT THE OFFICER THERE CONCERNED WAS APPOINTED SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES ON MARCH 11, 1943, WAS PROMOTED TO FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES ON JUNE 16, 1944, AND WAS PROMOTED TO CAPTAIN, ARMY OF THE UNITED STATES, ON DECEMBER 29, 1945 (TERMINAL LEAVE PROMOTION). HE WAS APPOINTED CAPTAIN, INFANTRY, UNITED STATES ARMY RESERVE, JUNE 18, 1946 (ACCEPTED ON JUNE 27, 1946), AND FIRST LIEUTENANT, INFANTRY, REGULAR ARMY, ON JULY 5, 1946, (ACCEPTED JULY 11, 1946). THE ORDERS OF JULY 5, 1946, ANNOUNCING HIS APPOINTMENT AS FIRST LIEUTENANT IN THE REGULAR ARMY PROVIDED THAT "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 (TERMINAL LEAVE) PROMOTIONS * * * ARE ADMINISTRATIVELY VACATED AND APMT IN THE AUS IS HEREBY EFFECTED IN THE GRADE HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY.' WHILE THE INSTRUMENT OF APPOINTMENT, OR THE COMMISSION, DATED JULY 11, 1946, WHICH THE OFFICER RECEIVED WAS INTENDED TO EVIDENCE AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS, IT EXPRESSLY STATED THAT THE OFFICER WAS APPOINTED A ,CAPTAIN, INFANTRY, IN THE ARMY OF THE UNITED STATES.' THE INSTRUMENT EVIDENCING HIS APPOINTMENT IN THE GRADE OF CAPTAIN, INFANTRY, ARMY OF THE UNITED STATES, WAS DATED JULY 11, 1946, THAT IS, A FEW DAYS SUBSEQUENT TO THE DATE OF THE INSTRUMENT OF APPOINTMENT AS FIRST LIEUTENANT, REGULAR ARMY. HE WAS ORDERED TO ACTIVE DUTY FROM HOME BY ORDERS DATED AUGUST 12, 1946, REFERRING TO HIM AS A CAPTAIN, AND THEREAFTER SERVED ON ACTIVE DUTY AS A CAPTAIN. IT THERE WAS CONCLUDED THAT WHEN THAT OFFICER RECEIVED HIS COMMISSION AS CAPTAIN IN THE "ARMY OF THE UNITED STATES" BEARING A DATE SUBSEQUENT TO THE DATE OF HIS REGULAR ARMY APPOINTMENT, AND ON A STILL LATER DATE RECEIVED ACTIVE DUTY ORDERS REFERRING TO HIM, WITHOUT QUALIFICATION, AS A CAPTAIN, IT WAS NOT UNREASONABLE FOR HIM TO BELIEVE THAT HE HELD A LEGAL APPOINTMENT AS CAPTAIN, ARMY OF THE UNITED STATES, AND THAT HE WAS BEING ORDERED TO ACTIVE DUTY, BY COMPETENT AUTHORITY, UNDER SUCH APPOINTMENT. IT THUS APPEARS THAT THAT OFFICER, SUBSEQUENT TO HIS APPOINTMENT AS FIRST LIEUTENANT IN THE REGULAR ARMY, RECEIVED A COMMISSION AS CAPTAIN IN THE "ARMY OF THE UNITED STATES" BEFORE HE WAS ORDERED TO ACTIVE DUTY BY ORDERS REFERRING TO HIM AS A CAPTAIN. IN SUCH CIRCUMSTANCES WE CONCLUDED THAT HE HELD A DE FACTO STATUS AS CAPTAIN DURING THE PERIOD INVOLVED.

IT APPEARS FROM YOUR PETITION TO THE COURT OF CLAIMS THAT YOU WERE COMMISSIONED FIRST LIEUTENANT, DENTAL CORPS, OFFICERS' RESERVE CORPS, ON JUNE 6, 1938, AND WERE ORDERED TO ACTIVE DUTY IN THAT GRADE ON JUNE 15, 1942. YOU WERE PROMOTED TO CAPTAIN, ARMY OF THE UNITED STATES, ON NOVEMBER 23, 1943, AND TO MAJOR, ARMY OF THE UNITED STATES, ON DECEMBER 20, 1945 (TERMINAL LEAVE PROMOTION). YOU REVERTED TO INACTIVE DUTY ON FEBRUARY 26, 1946.

YOU WERE APPOINTED A CAPTAIN IN THE REGULAR ARMY BY WAR DEPARTMENT SPECIAL ORDERS NO. 185, AUGUST 24, 1946. BY WAR DEPARTMENT LETTER DATED SEPTEMBER 24, 1946, ADDRESSED TO "MAJOR" MOSGROVE, YOU WERE ADVISED IN PERTINENT PART THAT---

"1. A. IN CONNECTION WITH YOUR APPOINTMENT IN THE REGULAR ARMY, ATTENTION IS INVITED TO THE ATTACHED COPY OF WAR DEPARTMENT CIRCULAR 222, PARTICULARLY PARAGRAPHS 2 AND 3 THEREOF. IT WILL BE NOTED THAT OFFICERS WHO HAVE BEEN PROMOTED IN CONNECTION WITH RELIEF FROM ACTIVE DUTY ARE TO BE RESTORED TO THEIR PRIOR TEMPORARY GRADE UPON RECALL TO DUTY UNDER THEIR REGULAR ARMY APPOINTMENT. * * *

"2. IN ORDER TO DETERMINE AND ADJUST YOUR TEMPORARY AUS GRADE STATUS, COMPLY WITH THE PARAGRAPHS BELOW WHICH APPLY IN YOUR CASE, AND RETURN THE OATH OF OFFICE AND ORIGINAL COPY OF THIS LETTER IN THE INCLOSED ENVELOPE.

"A. IF YOU WERE PROMOTED INCIDENT TO RELIEF FROM ACTIVE DUTY TO A GRADE HIGHER THAN THAT TO WHICH YOU WERE APPOINTED IN THE REGULAR ARMY, EXECUTE THE INCLOSED OATH OF OFFICE IN THE TEMPORARY AUS GRADE HELD PRIOR TO RELIEF FROM ACTIVE DUTY.

"C. IF YOU WERE RELIEVED FROM ACTIVE DUTY PRIOR TO APPOINTMENT IN THE REGULAR ARMY, INDICATE THE ORDERS UNDER WHICH YOU WERE SEPARATED AND THE DATE SPECIFIED THEREIN FOR REVERSION TO INACTIVE STATUS:

GRAPH

"PAR.----------------SO------MQ.------------------DATED--------

"DATE OF REVERSION TO INACTIVE STATUS------------------------"

WAR DEPARTMENT CIRCULAR NO. 222, DATED JULY 24, 1946, RELATING TO GRADE READJUSTMENT POLICIES APPLICABLE TO OFFICERS RECALLED TO ACTIVE DUTY, READS, IN PERTINENT PART, AS FOLLOWS:

"2. OFFICERS APPOINTED IN THE REGULAR ARMY UNDER THE PROVISIONS OF PUBLIC LAW 281 (WD CIR. 492. 1945, AS AMENDED), ARE RECALLED TO ACTIVE DUTY IN THE GRADE HELD PRIOR TO PROCESSING FOR SEPARATION. IN THE CASES OF SUCH OFFICERS ACCORDED PROMOTION ON RELIEF FROM ACTIVE DUTY UNDER THE AUTHORITIES CITED IN PARAGRAPH 1, THE HIGHER TEMPORARY GRADE IS VACATED EFFECTIVE ON THE DATE OF ACCEPTANCE OF APPOINTMENT IN THE REGULAR ARMY. IN ADDITION TO ACCEPTANCE AND OATH OF OFFICE FOR REGULAR ARMY APPOINTMENT, EACH OFFICER WILL EXECUTE OATH OF OFFICE IN THE GRADE HE HOLDS IN THE ARMY OF THE UNITED STATES UNLESS THAT GRADE IS THE GRADE IN WHICH HE IS APPOINTED IN THE REGULAR ARMY.'

YOU WERE ORDERED TO ACTIVE DUTY BY WAR DEPARTMENT ORDERS DATED SEPTEMBER 12, 1946, REFERRING TO YOU AS MAJOR. VARIOUS SUBSEQUENT ORDERS REFERRED TO YOU AS MAJOR. HOWEVER, IN VIEW OF THE EXPLICIT INFORMATION CONTAINED IN THE WAR DEPARTMENT LETTER OF SEPTEMBER 24, 1946, AND WAR DEPARTMENT CIRCULAR NO. 222-1946, THIS OFFICE MAY NOT CONCLUDE THAT YOU SERVED AS A MAJOR DE FACTO DURING THE PERIOD FROM SEPTEMBER 12, 1946, TO SEPTEMBER 13, 1950. COMPARE 34 COMP. GEN. 132; ID. 263.

RESPECTING THE SUGGESTION THAT THE FACTS IN YOUR CASE ARE IDENTICAL WITH THOSE IN OUR DECISION OF DECEMBER 1, 1954, 34 COMP. GEN. 266, IN THAT YOU WERE GIVEN AN INSTRUMENT OF APPOINTMENT SHOWING THAT YOU WERE APPOINTED A MAJOR IN THE "ARMY OF THE UNITED STATES," IT WILL BE NOTED THAT SUCH INSTRUMENT OF APPOINTMENT WAS ISSUED SIX MONTHS AFTER YOU ENTERED ON ACTIVE DUTY UNDER YOUR REGULAR ARMY APPOINTMENT. IT MAY NOT BE CONCLUDED THAT YOU ASSUMED THE GRADE OF MAJOR OR THEREAFTER SERVED IN SUCH GRADE ON THAT ACCOUNT. IN FACT, THE INSTRUMENT OF APPOINTMENT (COMMISSION) DIRECTED THAT YOU---

"* * * WILL ENTER UPON ACTIVE DUTY UNDER THIS COMMISSION ONLY WHEN SPECIFICALLY ORDERED TO SUCH ACTIVE DUTY BY COMPETENT AUTHORITY.'

NO SUBSEQUENT ORDERS TO ACTIVE DUTY WERE ISSUED IN YOUR CASE AND, SINCE YOU ALREADY WERE ON ACTIVE DUTY, OBVIOUSLY YOU DID NOT RELY UPON SUCH INSTRUMENT OF APPOINTMENT IN INITIALLY ASSUMING THE GRADE OF MAJOR. THUS, INSOFAR AS THE COMMISSION OF MARCH 17, 1947, IS CONCERNED, THE ESSENTIAL FACT ON WHICH THE CONCLUSION IN THE DECISION OF DECEMBER 1, 1954, 34 COMP. GEN. 266, WAS BASED IS ABSENT IN YOUR CASE. THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.