B-91135, APR 19, 1951

B-91135, APR 19, 1951

PRECIS-UNAVAILABLE

COLONEL H. B. TURNER, F.D., DISBURSING OFFICER:

BY FIRST INDORSEMENT DATED DECEMBER 5, 1949, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF SEPTEMBER 20, 1949, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYING A SUPPLEMENTAL ARMORY DRILL PAYROLL OF BATTERY A, 131ST FIELD ARTILLERY BATTALION, TEXAS NATIONAL GUARD, FOR THE PERIOD OCTOBER 1, 1948, TO DECEMBER 31, 1948, COVERING THE CLAIM, IN THE AMOUNT OF $140.67, OF SECOND LIEUTENANT JOE L. REYNOLDS FOR ARMORY DRILL PAY FOR ATTENDANCE AT 11 AUTHORIZED DRILLS DURING THE PERIOD OCTOBER 1 TO DECEMBER 15, 1948, AND FOR ADMINISTRATIVE FUNCTION PAY FOR COMMANDING THE SAID ORGANIZATION FROM OCTOBER 1, 1948, TO DECEMBER 31, 1948.

IT APPEARS THAT REYNOLDS WAS APPOINTED SECOND LIEUTENANT, FIELD ARTILLERY, IN THE TEXAS NATIONAL GUARD BY ORDERS DATED JANUARY 18, 1947. ON OCTOBER 2, 1947, FEDERAL RECOGNITION WAS EXTENDED TO HIM IN BATTERY A, 131ST FIELD ARTILLERY BATTALION, TO DATE FROM APRIL 7, 1947, FEDERAL RECOGNITION HAVING BEEN EXTENDED TO HIM IN BATTERY C OF THE SAID BATTALION AT AN EARLIER DATE. A COTERMINOUS APPOINTMENT IN THE NATIONAL GUARD OF THE UNITED STATES UNDER SECTION 38 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WAS NOT TENDERED TO HIM ON ACCOUNT OF A DISCREPANCY IN THE RECORDS AS TO HIS DATE OF BIRTH. SEVERAL COMMUNICATIONS PASSED BETWEEN THE NATIONAL GUARD BUREAU AND THE STATE AUTHORITIES CONCERNING SUCH DISCREPANCY, THE FIRST OF WHICH IS DATED OCTOBER 15, 1947, BUT THE REQUIRED INFORMATION WAS NOT RECEIVED BY THE NATIONAL GUARD BUREAU UNTIL FEBRUARY 11, 1949. HENCE, THE ISSUANCE OF THE COTERMINOUS APPOINTMENT WAS DELAYED TO SUCH AN EXTENT THAT ON JUNE 17, 1948, THE ADJUTANT GENERAL OF TEXAS WAS INFORMED THAT UNLESS SUFFICIENT INFORMATION WAS FURNISHED THE NATIONAL GUARD BUREAU WITHIN 30 DAYS WITH AN EXPLANATION OF THE SAID DISCREPANCY, A COTERMINOUS APPOINTMENT COULD NOT BE ISSUED AND THE FEDERAL RECOGNITION OF REYNOLDS WOULD BE WITHDRAWN. SUBSEQUENTLY, ON AUGUST 9, 1948, A TELEGRAM WAS SENT TO THE ADJUTANT GENERAL, STATE OF TEXAS, ADVISING THAT FEDERAL RECOGNITION WOULD BE TERMINATED EFFECTIVE JULY 17, 1948, WHICH TELEGRAM WAS CONFIRMED BY NGB FORM 3C DATED AUGUST 26, 1948. BASED ON SUCH TERMINATION, THE ADJUTANT GENERAL, STATE OF TEXAS, ISSUED PARAGRAPH 22, SPECIAL ORDERS NO. 248, DATED DECEMBER 15, 1948, "ADMINISTRATIVELY" DISCHARGING REYNOLDS FROM THE TEXAS NATIONAL GUARD EFFECTIVE JULY 17, 1948. IT APPEARS, HOWEVER, THAT REYNOLDS WAS REAPPOINTED SECOND LIEUTENANT, FIELD ARTILLERY, AND WAS ASSIGNED TO BATTERY A, 131ST FIELD ARTILLERY BATTALION, BY PARAGRAPH 23 OF THE SAME ORDERS OF DECEMBER 15, 1948. ON FEBRUARY 16, 1949, REYNOLDS APPARENTLY HAVING FURNISHED SATISFACTORY EVIDENCE AS TO HIS CORRECT DATE OF BIRTH, THE CHIEF, NATIONAL GUARD BUREAU, ADVISED THE ADJUTANT GENERAL OF TEXAS, ON NGB FORM 3B, THAT "THE RECORDS OF THE NATIONAL GUARD BUREAU HAVE BEEN AMENDED TO SHOW THAT THE ASSIGNMENT OF JOE LESLIE REYNOLDS TEXAS NATIONAL GUARD, HAS BEEN CHANGED TO 2D LT, BTRY A, 131ST FA BN *** TO DATE FROM 7 APRIL 1947 VICE ORIGINAL VACANCY CANCELLING NGB FORM 3C DTD 26 AUG 1948." IT APPEARS THAT THE SOLE PURPOSE OF THE ISSUANCE OF THE SAID NGB FORM 3B WAS THE RESTORATION OF FEDERAL RECOGNITION TO LIEUTENANT REYNOLDS TO BE EFFECTIVE APRIL 7, 1947. UPON RECEIPT OF THE SAID FORM 3B, THE ADJUTANT GENERAL, STATE OF TEXAS, BY ORDERS DATED MARCH 30, 1949, ANNOUNCED THE REVOCATION OF THE DISCHARGE AND THE REAPPOINTMENT ANNOUNCED IN PARAGRAPHS 22 AND 23, RESPECTIVELY, OF SPECIAL ORDERS NO. 248, DATED DECEMBER 15, 1948, SUPRA.

IT APPEARS THAT ALL OF THE PERSONNEL ACTIONS TAKEN IN REYNOLDS' CASE IN 1948 AND 1949 RESULTED FROM A DISCREPANCY IN THE RECORDS OF THE NATIONAL GUARD BUREAU AS TO THE OFFICER'S DATE OF BIRTH AND NOT TO ANY FAILURE TO MEET PHYSICAL, PROFESSIONAL, OR STATUTORY QUALIFICATIONS DURING THE PERIOD HERE INVOLVED. ORDERS ANNOUNCING HIS DISCHARGE FROM THE TEXAS NATIONAL GUARD WERE NOT ISSUED UNTIL DECEMBER 15, 1948, WHEN ORDERS WERE ISSUED ANNOUNCING HIS DISCHARGE AS OF JULY 17, 1948, AND HIS REAPPOINTMENT. SINCE HE APPARENTLY RETAINED HIS STATUS AS A SECOND LIEUTENANT AND PERFORMED HIS DUTIES AS SUCH AT LEAST UNTIL THE ISSUANCE OF THE ORDERS OF DECEMBER 15, 1948, ANNOUNCING HIS DISCHARGE, IT WOULD APPEAR THAT HE BECAME VESTED OF A STATUTORY RIGHT TO THE PAY ACCRUING BY REASON OF SUCH STATUS AND PERFORMANCE OF DUTY, ASSUMING THAT IT PROPERLY MAY BE HELD THAT HE HAD FEDERAL RECOGNITION DURING SUCH PERIOD, AND SUCH A RIGHT MAY NOT BE DIVESTED RETROACTIVELY BY A DISCHARGE PURPORTING TO BE RETROACTIVELY EFFECTIVE. WHILE DURING THE PERIOD OCTOBER 1, 1948, TO DECEMBER 15, 1948, HE WAS NOT CURRENTLY A FEDERALLY RECOGNIZED OFFICER OF THE NATIONAL GUARD, IT APPEARS THAT FEDERAL RECOGNITION WAS RESTORED TO HIM ON FEBRUARY 16, 1949, EFFECTIVE FROM APRIL 7, 1947. WITH RESPECT TO THE NATURE AND THE EFFECTIVE DATE OF FEDERAL RECOGNITION, PARAGRAPHS 24 AND 25, NATIONAL GUARD REGULATIONS NO. 20, DATED DECEMBER 11, 1947, READ AS FOLLOWS:

"24. DEFINITION.-- FEDERAL RECOGNITION IS THE ACTION OF THE DEPARTMENT OF THE ARMY IN ACKNOWLEDGING AND RECORDING THAT OFFICERS OF THE NATIONAL GUARD HAVE MET THE QUALIFICATIONS AND REQUIREMENTS PRESCRIBED BY THE NATIONAL DEFENSE ACT, AND REGULATIONS, AND ARE THEREBY ENTITLED TO RECEIVE FEDERAL PAY AND ALLOWANCES.

"25. EFFECTIVE DATE OF RECOGNITION.-- RECOGNITION IS NOT COMPLETE UNTIL GRANTED BY THE DEPARTMENT OF THE ARMY. IT IS EFFECTIVE FROM THE DATE ON WHICH THE REQUIREMENTS FOR RECOGNITION WERE MET."

ACCORDINGLY, IF OTHERWISE CORRECT, YOU ARE AUTHORIZED TO MAKE PAYMENT OF ARMORY DRILL PAY AND ADMINISTRATIVE FUNCTION PAY FOR THE PERIOD OCTOBER 1 TO DECEMBER 15, 1948, ON THE VOUCHER, WHICH IS RETURNED HEREWITH.

WITH RESPECT TO ADMINISTRATIVE FUNCTION PAY FOR THE PERIOD DECEMBER 16 TO 31, 1948, IT SEEMS CLEAR THAT IF THE ORDERS OF DECEMBER 15, 1948, EFFECTED THE OFFICER'S DISCHARGE ON THAT DATE, NOTHING SHORT OF A NEW APPOINTMENT COULD REINSTATE HIM IN HIS FORMER OFFICE IN THE NATIONAL GUARD FOR FEDERAL PAY PURPOSES. CF. MIMMACK V. UNITED STATES, 97 U.S. 426; MILLER V. UNITED STATES, 19 C.CLS. 338, 353; 4 COMP.GEN. 773; 28 ID. 557. HENCE, IF SUCH DISCHARGE WAS EFFECTED ON THAT DATE, FOR FEDERAL PAY PURPOSES NO EFFECT MAY BE GIVEN TO THE PURPORTED CANCELLATION OF SUCH DISCHARGE BY THE ORDERS OF MARCH 30, 1949, SO AS TO CONTINUE HIM IN A STATUS ENTITLING HIM TO FEDERAL PAY AFTER DECEMBER 15, 1948. ALTHOUGH PARAGRAPH 23 OF THE ORDERS OF DECEMBER 15, 1948, SUPRA, ANNOUNCED HIS REAPPOINTMENT IN THE TEXAS NATIONAL GUARD, SUCH REAPPOINTMENT COULD NOT BE EFFECTIVE FOR FEDERAL PAY PURPOSES UNLESS THE OFFICER EXECUTED THE REQUISITE OATH OF OFFICER (SEE SECTION 73 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 112, AND PARAGRAPH 9, NATIONAL GUARD REGULATIONS NO. 20, DATED DECEMBER 11, 1947).

IN THAT CONNECTION IT INFORMALLY HAS BEEN ASCERTAINED FROM THE NATIONAL GUARD BUREAU THAT THERE IS NO RECORD IN THAT BUREAU OF THE EXECUTION OF SUCH OATH. HOWEVER, THE RECORDS OF THAT BUREAU ALSO SUGGEST THAT THE OFFICER DID NOT RECEIVE THE ORDERS OF DECEMBER 15, 1948, ANNOUNCING HIS DISCHARGE AND REAPPOINTMENT AND HENCE THE NATIONAL GUARD BUREAU CONCLUDED THAT HIS DISCHARGE (PURSUANT TO THE ORDERS OF DECEMBER 15, 1948) WAS NOT CONSUMMATED AND THEREFORE THAT CANCELLATION OF NGB FORM 3B, DATED FEBRUARY 16, 1949, RESTORING FEDERAL RECOGNITION, WAS NOT REQUIRED, PRESUMABLY ON THE BASIS THAT A DISCHARGE DOES NOT BECOME EFFECTIVE UNTIL NOTICE THEREOF, ACTUAL OR CONSTRUCTIVE, IS RECEIVED BY THE OFFICER. SEE BARGER V. UNITED STATES, 6 C.CLS. 35; GOULD V. UNITED STATES, 19 ID. 593; MIMMACK V. UNITED STATES, 97 U.S. 426; 12 COMP.GEN. 544; 18 ID. 528; 27 ID. 176. HOWEVER THAT MAY BE, THE PRESENT RECORD BEFORE THIS OFFICE DOES NOT AFFIRMATIVELY ESTABLISH THAT THE OFFICER DID NOT RECEIVE NOTICE OF THE ORDERS OF DECEMBER 15, 1948, ANNOUNCING HIS DISCHARGE OR OTHERWISE RECEIVE NOTICE OF THE DISCHARGE PRIOR TO DECEMBER 31, 1948. ACCORDINGLY, ON THE BASIS OF SUCH PRESENT RECORD, PAYMENT OF ADMINISTRATIVE FUNCTION PAY FOR THE PERIOD DECEMBER 16 TO 31, 1948, IS NOT AUTHORIZED.