B-120345, DECEMBER 1, 1954, 34 COMP. GEN. 266

B-120345, DECEMBER 1, 1954, 34 COMP. GEN. 266

PAY - DE FACTO STATUS - RETENTION OF PAY A PERSON WHO SUBSEQUENT TO DATE OF APPOINTMENT AS FIRST LIEUTENANT IN THE REGULAR ARMY RECEIVED A COMMISSION WHICH INDICATED APPOINTMENT AS "CAPTAIN" IN THE " ARMY OF THE UNITED STATES," RATHER THAN IN THE OFFICERS' RESERVE CORPS AS INTENDED, AND WHO WAS ORDERED TO ACTIVE DUTY AS CAPTAIN MAY BE REGARDED AS IN A DE FACTO STATUS AND NEED NOT REFUND PAY AND ALLOWANCES RECEIVED FOR DUTIES PERFORMED AS CAPTAIN UNDER COLOR OF AUTHORITY AND IN GOOD FAITH.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE ARMY, DECEMBER 1, 1954:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1954, WITH ENCLOSURES, REQUESTING DECISION WHETHER ROBERT F. BARRETT, JR., O-37161, WHO ERRONEOUSLY SERVED ON ACTIVE DUTY IN THE GRADE OF CAPTAIN (INSTEAD OF FIRST LIEUTENANT) FROM JULY 11, 1946, TO MARCH 12, 1950, IS ENTITLED TO RETAIN PAY AND ALLOWANCES RECEIVED AS A CAPTAIN FOR SUCH PERIOD. IF THE ANSWER IS IN THE AFFIRMATIVE, DECISION ALSO IS REQUESTED WHETHER HE MAY BE REPAID THE SUMS COLLECTED FROM HIM WHICH REPRESENT A PART OF THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES AUTHORIZED FOR A FIRST LIEUTENANT AND PAY AND ALLOWANCES AS A CAPTAIN FOR THE PERIOD INVOLVED.

A RESUME OF THE FACTS IN THE CASE OF ROBERT F. BARRETT, JR., AS SET FORTH IN THE " DISCUSSION" ENCLOSED WITH YOUR LETTER, IS AS FOLLOWS.

A. APPOINTED AND ACCEPTED SECOND LIEUTENANT, AUS, 11 MARCH 1943; PROMOTED TO FIRST LIEUTENANT, AUS 16 JUNE 1944; PROMOTED TO CAPTAIN, AUS, 29 DECEMBER 1945 ( TERMINAL LEAVE PROMOTION).

B. APPOINTED CAPTAIN, INFANTRY-UNITED STATES ARMY RESERVE 18 JUNE 1946 (INSTRUMENT OF APPOINTMENT DATED 11 JULY 1946), ACCEPTED 27 JUNE 1946.

C. APPOINTED FIRST LIEUTENANT, INFANTRY-REGULAR ARMY, 5 JULY 1946, ACCEPTED 11 JULY 1946.

D. ORDERED FROM HOME TO FIRST DUTY STATION IN THE GRADE OF CAPTAIN ( REGULAR ARMY), 12 AUGUST 1946.

E. PROMOTED TO CAPTAIN, INFANTRY-REGULAR ARMY, 13 MARCH 1950.

INCLUDED IN THE SAID DISCUSSION IS AN EXCERPT FROM A LETTER DATED APRIL 6, 1953, FROM THE ADJUTANT GENERAL OF THE ARMY IN RESPONSE TO AN INQUIRY FROM THE COMMANDING GENERAL, THE INFANTRY CENTER, FORT BENNING, GEORGIA, AS TO THE OFFICER'S STATUS, WHICH IS AS FOLLOWS:

IT HAS BEEN DETERMINED THAT ROBERT F. BARRETT, JR., O-37161, INFANTRY, WAS A DE FACTO CAPTAIN 11 JULY 1946 THOUGH 12 MARCH 1950, AND IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED AS A CAPTAIN FOR THAT PERIOD.

IT IS ASSUMED THAT SUCH "DETERMINATION" WAS BASED, IN PART AT LEAST, ON AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY DATED SEPTEMBER 10, 1953, HOLDING THAT " CAPTAIN BARRETT WAS A DE FACTO CAPTAIN DURING THE PERIOD 11 JULY 1946 TO 12 MARCH 1950.'

THE DISCUSSION ALSO CONTAINS AN EXCERPT FROM A LETTER DATED FEBRUARY 13, 1953, FROM BARRETT TO THE ADJUTANT GENERAL, EXPLAINING WHY HE ASSUMED THE GRADE OF CAPTAIN UPON ENTRY ON ACTIVE DUTY. IT APPEARS FROM STATEMENTS IN SUCH EXCERPT THAT WHILE THE OFFICER WAS AWARE OF THE FACT THAT HIS TERMINAL LEAVE PROMOTION TO CAPTAIN, ARMY OF THE UNITED STATES, WAS AUTOMATICALLY VACATED BY HIS ACCEPTANCE OF A REGULAR ARMY APPOINTMENT AS FIRST LIEUTENANT ON JULY 11, 1946, HE WAS UNDER THE MISTAKEN BELIEF THAT HE LEGALLY HELD THE GRADE OF CAPTAIN, INFANTRY, ARMY OF THE UNITED STATES, SINCE HE RECEIVED AN INSTRUMENT EVIDENCING HIS APPOINTMENT AS CAPTAIN WHICH WAS DATED JULY 11, 1946, THAT IS, THAT IS, SUBSEQUENT TO THE DATE OF THE INSTRUMENT OF APPOINTMENT AS FIRST LIEUTENANT, REGULAR ARMY, AND THE SAME DAY THAT HE ACCEPTED SUCH APPOINTMENT AS FIRST LIEUTENANT, REGULAR ARMY. IT WAS ALSO STATED THAT ANY DOUBTS HE HAD ENTERTAINED AS TO HIS RIGHT TO SERVE AS A CAPTAIN, ARMY OF THE UNITED STATES, WERE DISPELLED WHEN HE WAS ORDERED FROM HOME TO FIRST DUTY STATION IN THAT GRADE BY ORDERS DATED AUGUST 12, 1946.

WAR DEPARTMENT SPECIAL ORDERS NO. 148, DATED JULY 5, 1946, ANNOUNCING THE REGULAR ARMY APPOINTMENT OF BARRETT, AMONG OTHER, PROVIDED THAT " ACCEPTANCE OF THIS COMMISSION IN THE AIR 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.'

THE INSTRUMENT OF APPOINTMENT, OR THE COMMISSION, DATED JULY 11, 1946, WHICH BARRETT RECEIVED FROM THE DEPARTMENT OF THE ARMY WAS INTENDED TO EVIDENCE AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS AND IT APPEARS TO BE A RULE OF LONG STANDING THAT AN OFFICER OF THE REGULAR ARMY IS INELIGIBLE TO RECEIVE OR HOLD AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS AS HIS REGULAR ARMY STATUS IS INCOMPATIBLE WITH SUCH APPOINTMENT. SEE DIGEST OF OPINIONS, JAG, ARMY, 1912-1940, SECTION 1344 (1), PAGE 665. SEE, ALSO, PARAGRAPH 15, AR 140-5, DATED JUNE 17, 1941. HOWEVER, IN THE SAID COMMISSION OF JULY 11, 1946, IT WAS EXPRESSLY STATED THAT BARRETT IS APPOINTED A " CAPTAIN, INFANTRY, IN THE ARMY OF THE UNITED STATES," AND THE ONLY LANGUAGE APPEARING IN SUCH COMMISSION WHICH INDICATED IT TO BE A COMMISSION IN THE OFFICERS' RESERVE CORPS, RATHER THAN A COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, WAS THAT WHICH REFERRED TO SECTION 37 OF THE NATIONAL DEFENSE ACT, 41 STAT. 781, AS AMENDED, AS AUTHORITY FOR THE APPOINTMENT, AND STATED THAT THE APPOINTMENT WAS TO CONTINUE IN FORCE FOR A PERIOD OF FIVE YEARS AND DURING THE PLEASURE OF THE PRESIDENT OF THE UNITED STATES. HENCE, WHEN BARRETT RECEIVED SUCH COMMISSION, 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 THE FACTS IN THIS CASE DISTINGUISH IT FROM CASES SUCH AS THOSE CONSIDERED IN B 65956, DATED MAY 26, 1937, AND IN 34 COMP. GEN. 263, WHERE THE ONLY SUBSTANTIAL BASIS FOR CLAIM OF DE FACTO STATUS WAS THE REFERENCE IN THE ACTIVE-DUTY ORDERS TO THE HIGHER OF THE TWO GRADES INVOLVED. WHILE THE MATTER IS NOT FREE FROM DOUBT IT REASONABLY MAY BE CONCLUDED THAT DURING THE PERIOD FROM JULY 11, 1946, TO MARCH 12, 1950, BARRETT ACTUALLY PERFORMED THE DUTIES OF A CAPTAIN UNDER COLOR OF AUTHORITY TO SERVE AS A CAPTAIN; THAT HE ACTED IN GOOD FAITH; AND THAT, THEREFORE, THE GOVERNMENT IS NOT ENTITLED TO RECOVER FROM HIM THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT AND THOSE OF A CAPTAIN ACTUALLY RECEIVED BY HIM FOR THAT PERIOD. COMPARE 31 COMP. GEN. 335.

THE QUESTION PRESENTED AS TO WHETHER THE OFFICER MAY RETAIN THE PAY AND ALLOWANCES SO RECEIVED IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE.

SINCE THE OFFICER IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES ACTUALLY RECEIVED BY HIM IN GOOD FAITH IN THE CAPACITY OF CAPTAIN FOR THE PERIOD JULY 11, 1946, TO MARCH 12, 1950, ON THE BASIS THAT HE SERVED IN THAT CAPACITY UNDER COLOR OF AUTHORITY AND WITHOUT KNOWLEDGE OF THE FACT THAT HE HAD BEEN ORDERED TO ACTIVE DUTY IN A GRADE HIGHER THAN THAT ACTUALLY HELD BY HIM, HE IS ENTITLED TO BE PAID ANY PORTION OF SUCH PAY AND ALLOWANCES WHICH HAS BEEN REFUNDED TO THE GOVERNMENT. SEE UNITED STATES V. ROYER, 268 U.S.C 394.