B-125503, APRIL 10, 1956, 35 COMP. GEN. 564

B-125503, APRIL 10, 1956, 35 COMP. GEN. 564

MILITARY PERSONNEL - APPOINTMENTS - EFFECTIVE DATE AN ARMY RESERVE OFFICER WHO, PURSUANT TO OFFICIAL ORDERS WHICH REFERRED TO HIM AS A RESERVE COMMISSIONED OFFICER, TRAVELED TO FIRST DUTY STATION BEFORE RECEIPT OF FORMAL NOTICE OF HIS APPOINTMENT HAD CONSTRUCTIVE KNOWLEDGE OF THE APPOINTMENT AND HIS ENTRANCE ON ACTIVE DUTY CONSTITUTED AN ACCEPTANCE, SO THAT AFTER THE OFFICER TOOK THE REQUIRED OATH HE WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, MILEAGE AND TRANSPORTATION OF DEPENDENTS FROM THE DATE TRAVEL WAS COMMENCED.

TO G. W. DAWLEY, DEPARTMENT OF THE ARMY, APRIL 10, 1956:

YOUR LETTER OF AUGUST 26, 1955, WITH ENCLOSURES, TRANSMITTED HERE BY FIRST ENDORSEMENT DATED SEPTEMBER 13, 1955, FROM THE CHIEF OF FINANCE, SUBMITTED FOR ADVANCE DECISION THREE VOUCHERS STATED IN FAVOR OF LIEUTENANT COLONEL ROBERT B. FRANKLIN, MEDICAL CORPS, USAR, FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD AUGUST 10 TO 14, 1955, MILEAGE FOR HIS TRAVEL FROM HOME TO FIRST DUTY STATION, AND REIMBURSEMENT OF THE COST OF TRAVEL OF HIS DEPENDENTS FROM HOME TO FIRST DUTY STATION.

IN COMPLIANCE WITH PARAGRAPH 23, SPECIAL ORDERS NP. 147, DEPARTMENT OF THE ARMY, DATED JULY 26, 1955, AS AMENDED, RECEIVED BY THE OFFICER JULY 29, 1955, HE ENTERED UPON EXTENDED ACTIVE DUTY ON AUGUST 10, 1955, ARRIVING AT HIS FIRST DUTY STATION ON AUGUST 11, 1955.

YOU SAY THAT BY LETTER DATED JULY 25, 1955, FROM HEADQUARTERS, FIRST ARMY, MAILED TO HIS HOME ADDRESS, THE OFFICER WAS INFORMED OF HIS APPOINTMENT AS A RESERVE OFFICER OF THE ARMY, EFFECTIVE THAT DATE, IN THE GRADE OF LIEUTENANT COLONEL. YOU SAY FURTHER THAT THIS LETTER WAS NOT RECEIVED AT THAT ADDRESS UNTIL AFTER HE HAD DEPARTED FOR HIS FIRST DUTY STATION AND WAS RECEIVED BY THE OFFICER AT HIS DUTY STATION AUGUST 15, 1955, ON WHICH DATE HE EXECUTED THE OATH OF OFFICE AND FORMALLY ACCEPTED THE APPOINTMENT. IT IS NOT SHOWN, HOWEVER, THAT THE OFFICER HAD ACTUAL KNOWLEDGE OF THE APPOINTMENT PRIOR TO AUGUST 15, 1955. IMMEDIATELY PRIOR TO HIS APPOINTMENT AS A RESERVE COMMISSIONED OFFICER LIEUTENANT COLONEL FRANKLIN HAD BEEN IN A CIVILIAN STATUS HOLDING NO MILITARY OFFICE.

IN DECISION OF MAY 1, 1930, A-31055, IT WAS STATED---

ACCEPTANCE OF APPOINTMENT USUALLY IS BY TAKING AND SUBSCRIBING THE STATUTORY OATH OF OFFICE, BUT THE ACCOUNTING OFFICERS AS WELL AS THE COURTS HAVE RECOGNIZED THERE MAY BE AN ACCEPTANCE BY ENTERING UPON THE DUTY OF THE OFFICE. IN SUCH CASES, HOWEVER, THERE MUST BE AN APPOINTMENT OR COMMISSION, THE APPOINTEE MUST HAVE KNOWLEDGE THEREOF, AND THERE MUST BE A PERFORMANCE OF DUTY IN THE CAPACITY IN WHICH, OR THE OFFICE TO WHICH, APPOINTED, AND BEFORE PAYMENT MAY BE MADE, THE OATH OF OFFICE MUST BE TAKEN. WHEN THE OATH OF OFFICE IS TAKEN IT RELATES BACK TO THE DATE OF ENTERING UPON DUTY AFTER THE ISSUANCE OF THE APPOINTMENT. SEE 5 COMP. DEC. 375, WHERE WERE CONSIDERED THE CASES OF TWO OFFICERS APPOINTED IN THE NAVY DURING THE SPANISH-AMERICAN WAR, WHERE THE RULE IS STATED AND APPLIED. OTHER CASES IN WHICH THE RULE IS APPLIED WILL BE FOUND IN 4 COMP. DEC. 496; 13 ID. 606; 23 ID. 88 AND 593; 24 ID. 130 AND 311; 27 ID. 853; 4 COMP. GEN. 845; 7 ID. 96. * * * SEE, ALSO, DECISION OF FEBRUARY 16, 1942, B-23168, AND 12 OP. ATTY. GEN. 229.

THE DECISION OF NOVEMBER 18, 1954, B-121135, CITED IN YOUR LETTER OF AUGUST 26, 1955, DOES NOT CONFLICT WITH THE FOREGOING RULE. THE INSTRUMENT OF APPOINTMENT IN THAT CASE WAS DATED DECEMBER 15, 1953, AND APPOINTED THE OFFICER EFFECTIVE THAT DATE. ACCORDINGLY, UNDER THE RULE HE COULD NOT HAVE BECOME A DE JURE OFFICER PRIOR TO DECEMBER 15, 1953.

LIEUTENANT COLONEL FRANKLIN'S APPOINTMENT WAS MADE JULY 25, 1955. AUGUST 10, 1955, HE COMMENCED ACTIVE DUTY IN THE CAPACITY OF LIEUTENANT COLONEL PURSUANT TO OFFICIAL ORDERS ISSUED ON JULY 26, 1955, DULY DELIVERED TO HIM, WHICH ADDRESSED HIM AS LIEUTENANT COLONEL, STATED HIS ASSIGNED SERIAL NUMBER, AND REFERRED TO HIM AS A RESERVE COMMISSIONED OFFICER OF THE ARMY. ALTHOUGH IT DOES NOT APPEAR THAT HE HAD RECEIVED FORMAL NOTICE OR HAD ACTUAL KNOWLEDGE OF HIS APPOINTMENT WHEN HE ENTERED ON ACTIVE DUTY PURSUANT TO SUCH ORDERS, HE AT LEAST HAD CONSTRUCTIVE KNOWLEDGE SINCE HE WAS EXPECTING THE APPOINTMENT AND THE ACTIVE DUTY ORDERS WERE SUFFICIENT TO PUT HIM ON NOTICE THAT THE APPOINTMENT HAD BEEN MADE. HIS ENTRANCE ON ACTIVE DUTY IN SUCH CIRCUMSTANCES PROPERLY MAY BE REGARDED AS CONSTITUTING AN ACCEPTANCE OF THE APPOINTMENT. HAVING TAKEN THE REQUIRED OATH OF OFFICE ON AUGUST 15, 1955, HE IS ENTITLED TO THE ACTIVE-DUTY PAY AND ALLOWANCES, INCLUDING MILEAGE AND THE TRANSPORTATION OF HIS DEPENDENTS, AUTHORIZED FOR AN OFFICER OF HIS RANK AND LENGTH OF SERVICE FROM AUGUST 10, 1955,"THE DATE OF ENTERING UPON DUTY AFTER THE ISSUANCE OF THE APPOINTMENT.'

PAYMENT ON THE SUBMITTED VOUCHERS, WHICH WE ARE RETURNING TO YOU, IS AUTHORIZED IF OTHERWISE PROPER.