B-66380, SEPTEMBER 25, 1947, 27 COMP. GEN. 176

B-66380, SEPTEMBER 25, 1947, 27 COMP. GEN. 176

PAY - REDUCTION - EFFECTIVE DATE WHILE UNDER SECTION 5 OF THE ACT OF JUNE 30, 1942, TEMPORARY APPOINTMENTS OF COAST GUARD PERSONNEL PURSUANT TO THE ACT OF JULY 24, 1941, AS AMENDED, ARE EFFECTIVE FROM THE DATE MADE, WITHOUT FORMAL ACCEPTANCE, A RESERVE OFFICER WHO FAILED TO RECEIVE NOTICE OF REVOCATION OF HIS TEMPORARY APPOINTMENT AND REVERSION TO HIS PERMANENT GRADE UNTIL AFTER THE EFFECTIVE DATE STATED THEREIN MAY BE REGARDED AS HAVING RETAINED HIS TEMPORARY APPOINTMENT FOR PAY AND ALLOWANCE PURPOSES UP TO THE DATE OF ACTUAL RECEIPT OF FORMAL OR OFFICIAL NOTICE, PROVIDED HE HAD NO PRIOR KNOWLEDGE OF REVOCATION AND WAS IN NO WAY RESPONSIBLE FOR FAILURE TO RECEIVE SUCH NOTICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, SEPTEMBER 25, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 12, 1947, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A COPY OF A LETTER, DATED FEBRUARY 22, 1947, FROM G. SEALS AIKEN ADDRESSED TO THE HONORABLE RICHARD B. RUSSELL, U.S. SENATOR, WITH INCLOSURES THERETO, WHICH HAS BEEN REFERRED BY THE ADDRESSEE TO THE COMMANDANT, U.S. COAST GUARD, FOR SUCH FAVORABLE CONSIDERATION AS THE COMMUNICATION WARRANTS. THE COMMUNICATION IS BY WAY OF AN OBJECTION TO ACTION TAKEN BY THE COAST GUARD TO RECOVER CERTAIN OVERPAYMENTS MADE TO AN OFFICER OF THE U.S. COAST GUARD RESERVE, DUE TO AN ADMINISTRATIVE FAILURE BY THE COAST GUARD COMMAND INVOLVED TO MAKE TIMELY ADJUSTMENTS IN PERSONNEL RECORDS AT TIME OF REVOCATION OF AN APPOINTMENT FOR TEMPORARY SERVICE.

THE OFFICER CONCERNED IS ROBERT E. KING WHOSE FIRST APPOINTMENT AS A LIEUTENANT, U.S. COAST GUARD RESERVE, WAS DATED JANUARY 28, 1943, WITH RANK AS SUCH FROM THAT DATE AND WHO REPORTED FOR ACTIVE DUTY FEBRUARY 9, 1943. IN DUE TIME, THE OFFICER WAS PROMOTED TO THE RANK OF LIEUTENANT COMMANDER FOR TEMPORARY SERVICE UNDER THE ACT APPROVED JULY 24, 1941 (55 STAT. 603-605; 34 U.S.C. 350A AND 350J ( SUPP. V) ). THE ACT WAS AMENDED BY SECS. 5 AND 8 OF THE ACT APPROVED JUNE 30, 1942 ( PUBLIC LAW 639, 77TH CONGRESS; CH. 462, 56 STAT. 465; 50 U.S.C. 810, 813) TO PROVIDE FOR ENTITLEMENT TO PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH APPOINTED WITHOUT REGARD TO FORMAL ACCEPTANCE OR OATH OF OFFICE.

THE OFFICER, WITH OTHERS SIMILARLY APPOINTED, WAS NOTIFIED OF HIS APPOINTMENT TO THE RANK OF LIEUTENANT COMMANDER BY PROMULGATION OF THE FACT TO THE SERVICE GENERALLY AS ALCOAST 131, DATED 24 OCTOBER 1945, COPY OF WHICH IS ENCLOSED. THERE IS ALSO ENCLOSED COPY OF PERSONNEL BULLETIN 50-1944.

SUBSEQUENT TO APPOINTMENT BY THE PRESIDENT TO THE RANK OF LIEUTENANT COMMANDER, WHICH WAS ACCEPTED BY THIS OFFICER ON NOVEMBER 13, 1945, EFFECTIVE FOR PAY PURPOSES ON OCTOBER 3, 1945, AND WHILE ATTACHED TO AND SO SERVING IN THE OFFICE OF MARINE INSPECTOR, SAVANNAH, GEORGIA, AS A LIEUTENANT COMMANDER, SUCH APPOINTMENT FOR TEMPORARY SERVICE WAS REVOKED BY THE PRESIDENT OF THE UNITED STATES, EFFECTIVE AUGUST 1, 1946. THE OFFICER, TOGETHER WITH OTHER OFFICERS WHOSE APPOINTMENTS WERE SIMILARLY REVOKED, REVERTED TO HIS PERMANENT RANK, AND WAS REAPPOINTED TOGETHER WITH OTHER OFFICERS, TO RANKS INDICATED. THE COMMANDANT WAS ADVISED OF THESE ACTIONS BY SECRETARY OF THE TREASURY LETTER OF 18 JULY, 1946, COPY OF WHICH IS ENCLOSED.

THE PROCEDURES IN EFFECTING REVOCATION AND REAPPOINTMENT FOR PAY PURPOSES WERE THE SAME AS THOSE APPLICABLE TO THE PREVIOUS APPOINTMENT, AND THE DATE OF CHANGE IN RANK FOR PAY PURPOSES WAS THE DATE OF THE REVOCATION STATED BY THE PRESIDENT, NAMELY, AUGUST 1, 1946.

THE NOTICE OF REVOCATION OF APPOINTMENT AND REAPPOINTMENT IN THIS OFFICER'S CASE WAS FORWARDED TO HIM, VIA COMMANDER, SEVENTH COAST GUARD DISTRICT, BY HEADQUARTERS LETTER ( PO) CG-781, DATED JULY 19, 1946, COPY OF WHICH IS ENCLOSED.

FOR SOME UNKNOWN REASON THE ABOVE-MENTIONED NOTICE OF REVOCATION APPEARS TO HAVE GONE ASTRAY AND THE NECESSARY CHANGES IN RECORDS AND ACCOUNTS WERE NOT EFFECTED BY THE COGNIZANT COAST GUARD COMMAND. UPON NOTICE OF THIS FAILURE, COAST GUARD ISSUED INSTRUCTIONS TO THAT COMMAND TO EFFECT THE NECESSARY CHANGES IN RECORDS AND ACCOUNTS, AND THIS ACTION OF EFFECTING ADJUSTMENTS SUBSEQUENT TO THE DATE THE OFFICER WAS DETACHED FROM ASSIGNED DUTIES ON JANUARY 10, 1947, PRELIMINARY TO THE EFFECTIVE DATE OF HIS RELEASE FROM ACTIVE DUTY UPON TERMINATION OF SEVENTY-TWO DAYS' ACCRUED LEAVE, RESULTED IN THE REQUEST OF THIS OFFICER NOT TO BE REQUIRED TO MAKE THE REFUND.

THE ABOVE-MENTIONED OFFICER CLAIMS THAT HE NEVER RECEIVED THE NOTICE OF REVOCATION OF HIS APPOINTMENT AS A LIEUTENANT COMMANDER AND THAT HE CONTINUED TO SERVE IN THAT CAPACITY, WORE THE UNIFORM OF THAT RANK, AND RECEIVED THE PAY AND ALLOWANCES THEREOF, UNTIL THE NOTICE REFERRED TO IN THE NEXT PRECEDING PARAGRAPH WAS RECEIVED BY HIM.

IN VIEW OF ALL THE CIRCUMSTANCES OF THIS CASE, DOUBT EXISTS AS TO THE LEGALITY OF REQUIRING THIS OFFICER TO REFUND THE EXCESS IN PAY AND ALLOWANCES RECEIVED BY HIM AS A LIEUTENANT COMMANDER OVER AND ABOVE WHAT HE WAS ENTITLED TO AS A LIEUTENANT SUBSEQUENT TO AUGUST 1, 1946. WHILE THIS OFFICER WAS IN LAW A LIEUTENANT IN THE COAST GUARD RESERVE DURING THE PERIOD IN QUESTION, ARGUMENT MAY BE ADVANCED THAT, SINCE HE DID NOT DURING THAT PERIOD RECEIVE NOTICE OF HIS CHANGE IN STATUS AND CONTINUED TO PERFORM THE DUTIES OF THE HIGHER RANK, HE WAS A DE FACTO, IF NOT A DE JURE, LIEUTENANT COMMANDER AND THEREFORE ENTITLED TO THE PAY AND ALLOWANCES OF THAT RANK.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER SUCH RESERVE OFFICER UNDER THE CIRCUMSTANCES SET FORTH IS ENTITLED TO RETAIN THE DIFFERENCE BETWEEN PAY AND ALLOWANCES OF A LIEUTENANT AND PAY AND ALLOWANCES OF A LIEUTENANT COMMANDER WHICH WERE PAID HIM PREVIOUSLY THROUGH MISTAKE OF FACT FROM AUGUST 1, 1946, TO DATE OF DISCOVERY OF THE ERROR BY THE COAST GUARD.

THE ACT OF JULY 24, 1941, 55 STAT. 602, AS AMENDED, REFERRED TO IN YOUR LETTER, AUTHORIZES THE PRESIDENT, IN TIME OF WAR OR NATIONAL EMERGENCY, TO APPOINT OR PROMOTE CERTAIN PERSONNEL OF THE REGULAR NAVY AND MARINE CORPS TO HIGHER TEMPORARY GRADES AND SECTION 7 OF THE SAID ACT, AS AMENDED (34 U.S.C. 350F), PROVIDES THAT THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF PERSONNEL TEMPORARILY APPOINTED OR PROMOTED TO HIGHER GRADE OR RANK IN ACCORDANCE WITH THE PROVISIONS OF THE ACT, SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS. SECTION 11A OF THE ACT OF JULY 24, 1941, AS AMENDED (34 U.S.C. 350J), EXTENDS THE PROVISIONS OF THE SAID ACT TO PERSONNEL OF THE NAVAL RESERVE AND SECTION 11B THEREOF EXTENDS THE PROVISIONS OF THE ACT TO PERSONNEL OF THE COAST GUARD IN THE SAME MANNER AND TO THE SAME EXTENT AS THEY APPLY TO PERSONNEL OF THE NAVY IN RELATIONSHIP TO THE NAVY. SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, REFERRED TO IN YOUR LETTER, READS AS FOLLOWS:

PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY-SEVENTH CONGRESS), SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE.

WHILE THE GENERAL RULE IS THAT AN APPOINTMENT IN THE MILITARY OR NAVAL SERVICE IS NOT EFFECTIVE FOR PAY PURPOSES UNTIL THE DATE OF ACCEPTANCE THEREOF, THE ACT OF JUNE 30, 1942, SUPRA, MAKES AN EXCEPTION TO SUCH GENERAL RULE BY SPECIFICALLY PROVIDING THAT TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941, UNLESS EXPRESSLY DECLINED, SHALL BE EFFECTIVE FOR PAY PURPOSES FROM THE DATE SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT. HOWEVER, THE SAID SECTION 5 MAKES NO EXCEPTION TO THE GENERAL RULE GOVERNING THE EFFECTIVE DATE OF RESIGNATIONS, REVOCATIONS OF APPOINTMENTS, ETC. IT CONSISTENTLY HAS BEEN HELD THAT THE SUBMISSION OF A RESIGNATION DOES NOT SEPARATE AN OFFICER FROM THE MILITARY SERVICE AND THAT SUCH A RESIGNATION, WHEN ACCEPTED BY THE PRESIDENT, IS EFFECTIVE, IF FUTURE DATE IS NOT FIXED, FROM THE DATE OF RECEIPT OF NOTICE OF ACCEPTANCE BY THE OFFICER IN THE ORDINARY COURSE. SEE 18 COMP. GEN. 528; BARGER V. UNITED STATES, 6 C.CLS. 35. IN GOULD V. UNITED STATES, 19 C.CLS. 593, IT WAS SAID THAT THE DISCHARGE OF AN OFFICER OF THE ARMY DOES NOT TAKE EFFECT SO AS TO RELIEVE THE GOVERNMENT FROM ITS OBLIGATIONS TO HIM UNTIL HE IS NOTIFIED OF THE FACT. THE SAME PRINCIPLE APPLIES UPON THE REVOCATION OF AN APPOINTMENT.

IN DECISION OF MARCH 18, 1943, B-32969, INVOLVING THE EFFECTIVE DATE OF THE REVOCATION OF A TEMPORARY APPOINTMENT, CREDIT WAS ALLOWED FOR A PAYMENT OF MILEAGE MADE TO AN ACTING PAY CLERK FOR TRAVEL PERFORMED SHORTLY AFTER THE PRESIDENT HAD REVOKED HIS TEMPORARY APPOINTMENT AS ACTING PAY CLERK AND ORDERS HAD BEEN ISSUED DIRECTING THAT HE REVERT TO HIS PERMANENT ENLISTED STATUS, SINCE IT APPEARED THAT THE OFFICER HAD NO KNOWLEDGE OF THE REVOCATION OF HIS TEMPORARY APPOINTMENT AS ACTING PAY CLERK AT THE TIME THE TRAVEL WAS PERFORMED. AND IT HAS BEEN CONSIDERED, WITH RESPECT TO CIVILIAN EMPLOYEES OF THE GOVERNMENT, THAT THE EFFECTIVE DATE OF AN ADMINISTRATIVE ORDER DEMOTING AN EMPLOYEE IS THE DATE SUCH EMPLOYEE RECEIVES NOTICE OF SUCH DEMOTION. 16 COMP. GEN. 979; B-1089, MARCH 14, 1939. A SUBSTANTIALLY SIMILAR RULE, WITH RESPECT TO THE EFFECTIVE DATE OF THE DEMOTION OF ARMY ENLISTED MEN IS CONTAINED IN PARAGRAPH 615-5, ARMY REGULATIONS, TO THE EFFECT THAT A DEMOTION IS EFFECTIVE ON THE DATE UPON WHICH NOTICE OF REDUCTION IS RECEIVED BY THE ENLISTED MAN, OR, IF ABSENT FOR HIS OWN CONVENIENCE OR THROUGH HIS OWN FAULT, UPON THE DATE NOTICE OF REDUCTION IS RECEIVED AT HIS PROPER STATION. SEE, ALSO, B-46438, MAY 19, 1945.

IN THE PRESENT CASE IT APPEARS THAT THE NOTICE OF REVOCATION ADDRESSED TO LIEUTENANT COMMANDER KING, VIA THE COMMANDER, 7TH COAST GUARD DISTRICT, WENT "ASTRAY; " THAT THE COAST GUARD COMMANDER INVOLVED FAILED TO MAKE THE REQUIRED ADJUSTMENTS IN PERSONNEL RECORDS WHEN ORDERS WERE ISSUED DIRECTING THAT THE OFFICER'S TEMPORARY APPOINTMENT BE REVOKED; AND THAT THE OFFICER FAILED TO RECEIVE A COPY OF THE NOTICE OF THE REVOCATION OF HIS TEMPORARY APPOINTMENT AS LIEUTENANT COMMANDER AND REVERSION TO HIS PERMANENT GRADE OF LIEUTENANT IN THE COAST GUARD RESERVE. IT IS NOT STATED WHETHER THE OFFICER ACTUALLY HAD KNOWLEDGE OF SUCH REVOCATION PRIOR TO THE DATE HE RECEIVED FORMAL NOTICE THEREOF NOR IS IT SHOWN WHETHER HE WAS IN ANY WAY RESPONSIBLE FOR THE DELAY IN RECEIPT OF SUCH NOTICE OR KNOWLEDGE OF THE REVOCATION OF THE TEMPORARY APPOINTMENT. IN THE ABSENCE OF SUCH INFORMATION, IT MAY BE STATED GENERALLY THAT IF THE OFFICER HAD NO PRIOR KNOWLEDGE OF THE FACT THAT HIS TEMPORARY APPOINTMENT HAD BEEN REVOKED AND WAS IN NO WAY RESPONSIBLE IN THE MATTER, HE WOULD BE ENTITLED TO RETAIN THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE UNTIL SUCH DATE AS HE RECEIVED FORMAL NOTICE OF THE REVOCATION. HOWEVER, IF THE OFFICER HAD KNOWLEDGE OF THE REVOCATION OF HIS TEMPORARY APPOINTMENT PRIOR TO ACTUAL RECEIPT OF FORMAL NOTICE OR IN ANY WAY WAS RESPONSIBLE FOR FAILURE TO RECEIVE SUCH NOTICE, HE WOULD BE ENTITLED TO THE PAY AND ALLOWANCES OF HIS PERMANENT GRADE ONLY FROM THE DATE HE RECEIVED KNOWLEDGE OR IS OTHERWISE CHARGEABLE WITH NOTICE OF SUCH REVOCATION. IN THAT CONNECTION, THERE RECENTLY HAS BEEN RECEIVED IN THIS OFFICE AN AFFIDAVIT EXECUTED SEPTEMBER 15, 1947, BY COMMANDER KING AVERRING THAT THE FIRST "OFFICIAL" NOTICE HE HAD OF A REDUCTION IN GRADE FROM LIEUTENANT COMMANDER TO LIEUTENANT WAS ON OR ABOUT JANUARY 31, 1947--- WHICH WOULD INDICATE THAT HE MAY HAVE HAD ACTUAL KNOWLEDGE OF THE REVOCATION OF HIS TEMPORARY APPOINTMENT PRIOR TO RECEIPT OF THE "OFFICIAL" NOTICE.