B-60277, JANUARY 10, 1947, 26 COMP. GEN. 475

B-60277, JANUARY 10, 1947, 26 COMP. GEN. 475

PAY - PROMOTIONS - RETROACTIVE - ARMY OF U.S. AND RESERVE OFFICERS NOT PROMOTED WHEN ELIGIBLE IN THE CASE OF OFFICERS OF THE ARMY OF THE UNITED STATES AND RESERVE OFFICERS WHO WERE ELIGIBLE FOR ONE-GRADE PROMOTIONS PURSUANT TO WAR DEPARTMENT CIRCULARS NOS. 10 AND 140 COINCIDENT WITH PROCESSING FOR RELIEF FROM ACTIVE DUTY, BUT WHO, THROUGH ADMINISTRATIVE ERROR OR OVERSIGHT, WERE NOT TIMELY ISSUED PROMOTION ORDERS, SUBSEQUENT ORDERS ANNOUNCING THE PROMOTION OF AN OFFICER AS OF THE DATE HE BECAME ELIGIBLE ARE INEFFECTIVE TO AUTHORIZE PAYMENT OF THE PAY AND ALLOWANCES OF THE HIGHER GRADE, DURING TERMINAL LEAVE, PRIOR TO THE DATE OF ISSUANCE OF SUCH PROMOTION ORDERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JANUARY 10, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 26, 1946, AS FOLLOWS:

BY WAR DEPARTMENT CIRCULAR NO. 10, 11 JANUARY 1946, THE WAR DEPARTMENT ISSUED INSTRUCTIONS TO THE EFFECT THAT OFFICERS OF THE ARMY OF THE UNITED STATES AND RESERVE OFFICERS BELOW THE GRADE OF COLONEL, WHO HAD BEEN ON ACTIVE DUTY AND HAD SERVED FOR A PERIOD OF MORE THAN TWO YEARS SUBSEQUENT TO 16 SEPTEMBER 1940 AND HAD NOT BEEN PROMOTED WHILE ON ACTIVE DUTY, AND OTHER OFFICERS OF THOSE COMPONENTS WHO HAD SERVED A SPECIFIED TIME IN GRADE, WOULD BE PROMOTED ONE GRADE COINCIDENT WITH THEIR RELIEF FROM ACTIVE DUTY. BY DIRECTION OF THE PRESIDENT, THE AUTHORITY TO MAKE SUCH PROMOTIONS WAS DELEGATED TO VARIOUS COMMANDING GENERALS AND COMMANDING OFFICERS, AND AMONG THOSE TO WHICH SUCH AUTHORITY WAS SO DELEGATED WERE THE COMMANDING OFFICERS OF HOSPITALS AUTHORIZED TO PROCESS SEPARATION OF PATIENTS AND COMMANDING OFFICERS OF SEPARATION CENTERS. WAR DEPARTMENT CIRCULAR NO. 10 HAS NOW BEEN SUPERSEDED BY WAR DEPARTMENT CIRCULAR 140, 1946; HOWEVER, THE ABOVE PROVISIONS HAVE BEEN CARRIED FORWARD IN WAR DEPARTMENT CIRCULAR 140 WITHOUT MATERIAL CHANGE.

IN SOME INSTANCES THE COMMANDING OFFICERS OF SEPARATION CENTERS OR OTHER DESIGNATED AUTHORITY HAVE FAILED TO ISSUE APPROPRIATE ORDERS ANNOUNCING THE PROMOTION OF OFFICERS WHO WERE PROPERLY ENTITLED THERETO, AND SUCH ADMINISTRATIVE ERROR HAS THUS RESULTED IN DISCRIMINATION AGAINST THE OFFICERS IN QUESTION. WHILE THE NUMBER OF OFFICERS/INVOLVED CANNOT BE STATED ACCURATELY, IT IS ESTIMATED THAT THERE ARE APPROXIMATELY 200 OFFICERS WHO HAVE NOT BEEN PROMOTED, ALTHOUGH FULLY QUALIFIED UNDER EXISTING INSTRUCTIONS.

IT IS THE VIEW OF THE WAR DEPARTMENT THAT, BY VIRTUE OF THE PROVISIONS OF WAR DEPARTMENT CIRCULARS 10 AND 140, 1946, AN OFFICER ELIGIBLE FOR A ONE- GRADE PROMOTION MAY BE ASSUMED TO HAVE BEEN PROMOTED BY DIRECTION OF THE PRESIDENT ON THE DATE OF COMMENCEMENT OF HIS TERMINAL LEAVE, OR IF NOT ELIGIBLE AT THAT TIME, ON THE DATE WHEN HE THEREAFTER BECOMES ELIGIBLE, IN THE ABSENCE OF EVIDENCE CONCLUSIVELY SHOWING THAT PRESIDENTIAL ACTION HAS BEEN WITHHELD, AND THAT THE FAILURE OF THE DESIGNATED AUTHORITY TO ISSUE ORDERS ANNOUNCING THE PROMOTION SHOULD NOT DEPRIVE SUCH PERSONNEL OF SUCH PROMOTION, RIGHTS FLOWING THEREFROM, OR AFFECT THE VALIDITY OF THE PROMOTION.

IN ORDER TO CORRECT SUCH ADMINISTRATIVE ERROR, THE WAR DEPARTMENT HAS ISSUED ORDERS SUBSTANTIALLY AS FOLLOWS:

"BY DIRECTION OF THE PRESIDENT, THE PROMOTION OF FIRST LIEUTENANT * * * TO THE GRADE OF CAPTAIN, AUS, EFFECTIVE 11 JANUARY 1946, UNDER THE PROVISIONS OF CIRCULAR 10, WAR DEPARTMENT, 11 JANUARY 1946 IS HEREBY ANNOUNCED AND MADE OF RECORD.'

CONFIRMATION OF PROMOTION IN THE FORM INDICATED ABOVE WILL BE FURNISHED ONLY IN THOSE CASES IN WHICH PROMOTION ORDERS WERE NOT ISSUED BECAUSE OF ADMINISTRATIVE ERROR OR OVERSIGHT.

IN THE ABSENCE OF AN AUTHORITATIVE DECISION FROM YOUR OFFICE, THE INDIVIDUAL OFFICERS AFFECTED HAVE TO DATE BEEN DEPRIVED OF THE INCREASED PAY AND ALLOWANCES.

IN ORDER TO AVOID THE POSSIBILITY OF ERRONEOUS PAYMENTS OF TERMINAL LEAVE PAY BY DISBURSING OFFICES OF THE ARMY, YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT ORDERS AS SET FORTH ABOVE WILL BE ACCEPTABLE IN SUPPORT OF PAYMENTS OF TERMINAL LEAVE PAY AT THE HIGHER RANK AS INDICATED.

WAR DEPARTMENT CIRCULAR 140, DATED MAY 15, 1946, SETS FORTH CERTAIN CLASSES OF OFFICERS AS BEING "ELIGIBLE" FOR PROMOTION UPON RELIEF FROM ACTIVE DUTY AND PARAGRAPH 5 THEREOF PROVIDES, IN PART:

5. AUTHORITY TO PROMOTE.--- BY DIRECTION OF THE PRESIDENT, THE COMMANDING GENERALS, ARMY AIR FORCES, ARMY GROUND FORCES, ARMY SERVICE FORCES, THE COMMANDING GENERAL OR COMMANDING OFFICER OF A THEATER, OVERSEA DEPARTMENT, SERVICE COMMAND, SEPARATION CENTER, SEPARATION POINT, OR HOSPITAL AUTHORIZED TO PROCESS SEPARATIONS OF PATIENTS, ARE AUTHORIZED TO PROMOTE OFFICERS UNDER THE PROVISIONS OF THIS DIRECTIVE, COINCIDENT WITH PROCESSING FOR RELIEF FROM ACTIVE DUTY, SUBJECT TO THE FOLLOWING LIMITATIONS.

A. NO RETROACTIVE PROMOTIONS AND NO ANTEDATED ORDERS WILL BE ISSUED. ITALICS SUPPLIED.)

THE CIRCULAR FURTHER PROVIDES, INTER ALIA, THAT SUCH PROMOTIONS AS ARE THEREBY AUTHORIZED WILL BE MADE IN THE ARMY OF THE UNITED STATES AND WILL BE TEMPORARY, ONLY.

WHILE IT MAY BE THAT OFFICERS QUALIFYING OR "ELIGIBLE" FOR PROMOTION UNDER THE PROVISIONS OF THE CIRCULAR HAD, IN A SENSE, A RIGHT TO BE SO PROMOTED, SUCH RIGHT WAS AT MOST INCHOATE AND ITS VESTING WAS SUBJECT TO THE FUNDAMENTAL CONDITION OF AN APPOINTMENT BY THE APPOINTING POWER. THE CIRCULAR IS NOT SELF-EXECUTING; THAT IS TO SAY, THE PROVISIONS OF THE CIRCULAR DO NOT OF THEMSELVES, PROMOTE THE INDIVIDUAL OFFICERS ON THE DAY THEY BECOME ELIGIBLE THEREFOR, BUT CONTEMPLATE AND REQUIRE EXERCISE OF THE APPOINTING POWER; AND, UNLESS AND UNTIL SUCH APPOINTING POWER ACTUALLY IS EXERCISED, NO RIGHTS VEST THEREUNDER. SEE 25 COMP. GEN. 512, CITING 25 OP. ATTY. GEN. 591; 29 ID. 254.

APPARENTLY RECOGNIZING THE FOREGOING PRINCIPLES, IT IS NOW PROPOSED TO ISSUE ORDERS ANNOUNCING THE PROMOTIONS OF THE OFFICERS INVOLVED EFFECTIVE RETROACTIVELY TO THE DATES THEY BECAME ELIGIBLE FOR PROMOTION. IT IS WELL SETTLED, HOWEVER, THAT A STATUTE GRANTING AUTHORITY TO APPOINT TO OFFICE MAY NOT BE TAKEN AS AUTHORITY TO MAKE A RETROACTIVE APPOINTMENT UNLESS IT CLEARLY APPEARS FROM THE LANGUAGE OF THE STATUTE THAT SUCH WAS THE INTENTION OF THE CONGRESS. SEE DECISION OF FEBRUARY 2, 1943, B-29430; COLLINS V. UNITED STATES, 15 C.1CLS. 22; KILBURN V. UNITED STATES, ID. 41; YOUNG V. UNITED STATES, 19 ID. 145; BENNETT V. UNITED STATES, ID. 379; DU BOSE V. UNITED STATES, 65 ID. 142. CF. QUACKENBUSH V. UNITED STATES, 177 U.S. 20. THE ACT OF OCTOBER 14, 1942, 56 STAT. 787, SPECIFICALLY PROVIDES THAT EVERY OFFICER OF THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, PROMOTED TO A HIGHER GRADE AT ANY TIME AFTER DECEMBER 7, 1941, SHALL BE DEEMED FOR ALL PURPOSES TO HAVE ACCEPTED HIS PROMOTION TO SUCH HIGHER GRADE UPON THE DATE THE ORDER IS ISSUED ANNOUNCING IT, UNLESS HE EXPRESSLY DECLINES IT, AND SHALL RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE "FROM SUCH DATE," UNLESS HE IS ENTITLED UNDER SOME OTHER PROVISION OF LAW TO RECEIVE THE PAY AND ALLOWANCES OF THE HIGHER GRADE FROM AN EARLIER DATE.

THIS OFFICE IS NOT AWARE OF ANY PROVISION OF LAW WHICH WOULD ENTITLE THE OFFICERS REFERRED TO IN YOUR LETTER TO THE PAY AND ALLOWANCES OF A HIGHER GRADE TO WHICH THEY MAY BE PROMOTED FROM ANY DATE OTHER THAN THE DATE THE ORDERS ANNOUNCING SUCH PROMOTIONS ARE ISSUED. IT NECESSARILY FOLLOWS, IN THE ABSENCE OF SUCH STATUTORY AUTHORITY, THAT PAYMENT OF THE HIGHER PAY AND ALLOWANCES FROM AN EARLIER DATE WOULD NOT BE AUTHORIZED UNDER THE PROCEDURE SUGGESTED IN YOUR LETTER. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.