B-95807, JULY 28, 1950, 30 COMP. GEN. 36

B-95807, JULY 28, 1950, 30 COMP. GEN. 36

RETIREMENT - REGULAR ARMY OFFICER PURPORTEDLY RETIRED UNDER A REPEALED STATUTE - EFFECTIVE DATE THE RETIREMENT OF A REGULAR ARMY OFFICER PURSUANT TO A RETIRING BOARD'S FINDINGS THAT THE OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, MAY NOT BE MADE EFFECTIVE FOR RETIRED PAY PURPOSES PRIOR TO THE DATE UPON WHICH THE FINDINGS OF THE RETIRING BOARD ARE APPROVED, EXCEPT IN CASES OTHERWISE SPECIFICALLY AUTHORIZED BY STATUTE. WHERE THE STATUTE UNDER WHICH A REGULAR ARMY OFFICER PURPORTEDLY RETIRED WAS REPEALED BY THE CAREER COMPENSATION ACT OF 1949 PRIOR TO THE DATE THE PRESIDENT APPROVED HIS RETIREMENT, SUCH OFFICER IS NOT ENTITLED TO RECEIVE RETIRED PAY BASED UPON RETIREMENT ORDERS ISSUED PURSUANT TO THE REPEALED STATUTE, IN THE ABSENCE OF A SAVING PROVISION IN THE 1949 ACT SPECIFICALLY PERMITTING MEMBERS OF THE UNIFORMED SERVICES RETIRED AFTER THE EFFECTIVE DATE THEREOF, UNDER SIMILAR CIRCUMSTANCES, TO RECEIVE RETIREMENT BENEFITS UNDER LAWS APPLICABLE PRIOR TO THE EFFECTIVE DATE OF THE 1949 ACT, OR A JUDICIAL DETERMINATION OF THE MATTER.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. B. J. TULLINGTON, DEPARTMENT OF THE ARMY, JULY 28, 1950:

BY ENDORSEMENT OF MAY 25, 1950, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THERE WAS RECEIVED YOUR COMMUNICATION OF MAY 17, 1950, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER IN THE AMOUNT OF $5,362.50 SUBMITTED THEREWITH, IN FAVOR OF COLONEL FREDERICK MATHIAS SCHELLHAMMER, U.S. ARMY, RETIRED, REPRESENTING RETIRED PAY AT THE RATE OF $357.50 PER MONTH FOR THE PERIOD MARCH 1, 1949, THROUGH MAY 31, 1950. IT IS STATED THAT DOUBT AS TO THE PROPRIETY OF MAKING PAYMENT ON THE VOUCHER ARISES BECAUSE OF THE UNUSUAL CONDITIONS SURROUNDING THE OFFICER'S RETIREMENT AND THE BELIEF THAT THE DATE OF RETIREMENT SHOULD BE GOVERNED FOR RETIRED PAY PURPOSES BY THE DATE OF APPROVAL BY COMPETENT AUTHORITY OF HIS RETIREMENT AND BY THE UNIFORM RETIREMENT DATE STATUTE OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47 (A).

THE OFFICER'S SERVICE STATUS AND THE USUAL CIRCUMSTANCES WHICH LED TO HIS RETIREMENT APPEAR TO BE SUBSTANTIALLY AS FOLLOWS: APPOINTED A SECOND LIEUTENANT IN THE OFFICER'S RESERVE CORPS ON OCTOBER 14, 1929; ENTERED ON EXTENDED ACTIVE DUTY AS A CAPTAIN ON OCTOBER 24, 1940; AND SERVED ON ACTIVE DUTY IN VARIOUS GRADES--- INCLUDING THE GRADE OF COLONEL TO WHICH HE WAS APPOINTED DECEMBER 7, 1944--- UNTIL RELEASED FROM ACTIVE DUTY JANUARY 24, 1946. ON FEBRUARY 28, 1946, HE FILED AN APPLICATION FOR APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR ARMY AND ON JUNE 28, 1946, HE WAS TENDERED A COMMISSION AS CAPTAIN. ON JUNE 30, HE NOTIFIED THE ADJUTANT GENERAL THAT HE COULD NOT ACCEPT SUCH APPOINTMENT BEFORE FEBRUARY 1947, AND REQUESTED THAT HE BE APPOINTED AT THAT TIME. SUCH REQUEST WAS DENIED ON JULY 19, 1946. IN THE MEANTIME, HOWEVER, ON JULY 5, 1946, THE ARMY ANNOUNCED HIS APPOINTMENT AS A CAPTAIN IN THE REGULAR ARMY. SUCH ORDER WAS REVOKED ON OCTOBER 14, 1946. AFTER FURTHER CORRESPONDENCE CONCERNING AN APPOINTMENT IN THE REGULAR ARMY, ON NOVEMBER 15, 1946, HE AGAIN FILED APPLICATION FOR APPOINTMENT AS AN OFFICER IN THE REGULAR ARMY AND REQUESTED THAT, IF THE COMMISSION BE RETENDERED, HE BE GIVEN AN OPPORTUNITY TO DETERMINE HIS PRESENT CIVILIAN CONTRACTUAL OBLIGATIONS, WHICH APPARENTLY WOULD TERMINATE IN JUNE 1947. ON JUNE 19, 1947, THE ADJUTANT GENERAL ADVISED THE OFFICER THAT HE HAD BEEN APPOINTED CAPTAIN IN THE REGULAR ARMY. ON SEPTEMBER 25, 1947, THE OFFICER REQUESTED THAT HE BE GRANTED A DELAY IN COMPLETING THE OATH OF OFFICE UNTIL NOVEMBER 1, 1947, SO THAT PERSONAL COMMITMENTS MIGHT BE FULFILLED, WHICH PERMISSION WAS GRANTED ON OCTOBER 10, 1947. NO FURTHER CORRESPONDENCE APPEARS TO HAVE BEEN RECEIVED FROM THE OFFICER UNTIL HIS LETTER OF NOVEMBER 19, 1947, IN WHICH HE ADVISED THE ADJUTANT GENERAL AS FOLLOWS:

I HAVE BEEN INFORMED OF MY APPOINTMENT AS CAPTAIN, REGULAR ARMY, ( INFANTRY, REGULAR ARMY), IN THE 19 JUNE 1947 REGULAR ARMY INTEGRATION PROGRAM.

IT IS MY DESIRE TO DECLINE THIS APPOINTMENT.

HOWEVER, ON OR ABOUT NOVEMBER 29, 1947, THE OFFICER CONTACTED ONE CAPTAIN ASKEY OF THE PERSONNEL ACTIONS BRANCH, ADJUTANT GENERAL'S OFFICE, WITH RESPECT TO ACCEPTING SUCH APPOINTMENT, AND PRESUMABLY WAS ADVISED THAT HE COULD EXECUTE HIS OATH OF OFFICE, AND FORWARD IT TO THAT OFFICE. ON THE SAME DAY ( NOVEMBER 29, 1947) THE OFFICER EXECUTED THE OATH OF OFFICE AND FORWARDED IT TO THE ADJUTANT GENERAL'S OFFICE. ON DECEMBER 31, 1947, THE OFFICER WAS ORDERED TO THE STUDENT DETACHMENT INFANTRY SCHOOL, FORT BENNING, GEORGIA, FOR AN ADVANCED COURSE BEGINNING FEBRUARY 12, 1948, AND WAS DIRECTED TO REPORT TO THE COMMANDANT OF THAT SCHOOL FOR DUTY PENDING THE BEGINNING OF SUCH COURSE. ON JANUARY 6, 1948, THE ABOVE ORDERS WERE AMENDED SO AS TO ASSIGN THE OFFICER TO DUTY AT WASHINGTON, D.C. AT THE OFFICER'S REQUEST, HE WAS GRANTED 21 DAYS' LEAVE WITHOUT PAY, EFFECTIVE JANUARY 11, 1948, WITH INSTRUCTIONS TO REPORT FOR DUTY FEBRUARY 1, 1948. HIS COMMISSION AS A CAPTAIN IN THE REGULAR ARMY WAS FORWARDED TO HIM ON FEBRUARY 3, 1948, AND FIVE DAYS LATER, NAMELY, ON FEBRUARY 8, 1948, THE OFFICER ADVISED THE ADJUTANT GENERAL BY TELEGRAM, AS FOLLOWS:

AM FORWARDING RESIGNATION DUE TO SERIOUS PERSONNEL (SIC) REASONS, LETTER FOLLOWS. HAVE REQUESTED PERMISSION FROM ARMY PERSONNEL RECORDS BOARD NOT TO REPORT FOR DUTY PENDING ACCEPTANCE OF RESIGNATION.

ON FEBRUARY 11, 1948, HE WAS AUTHORIZED TO REMAIN ON LEAVE WITHOUT PAY PENDING RECEIPT OF LETTER OF RESIGNATION. ON MARCH 3, 1948, THE OFFICER WAS AGAIN REQUESTED TO EXECUTE OATH OF OFFICE AS LIEUTENANT COLONEL, TEMPORARY, AUS (WHICH TEMPORARY APPOINTMENT HAD BEEN ANNOUNCED BY ORDERS DATED JANUARY 5, 1948), TO WHICH REQUEST HE REPLIED, AS FOLLOWS:

ON FEBRUARY 8 I INFORMED P. AND A. DIVISION A.G. THAT CIRCUMSTANCES BEYOND MY CONTROL MADE IMPOSSIBLE MY ENTERING INTO THE ARMY AND FORWARDED MY RESIGNATION AS OF THAT DATE WITH REQUEST THAT I BE REINSTATED IN THE RESERVE CORPS.

IN A LETTER TO THE OFFICER DATED APRIL 13, 1948, THE ADJUTANT GENERAL REFERRED TO THE COMMUNICATION OF FEBRUARY 11, 1948, AUTHORIZING LEAVE WITHOUT PAY PENDING ACCEPTANCE OF HIS RESIGNATION AND ADVISED HIM EITHER TO SUBMIT HIS RESIGNATION AT ONCE OR COMPLY WITH THE PRIOR ORDERS. THE OFFICE WAS FURTHER ADVISED THAT IN THE EVENT HE TENDERED HIS RESIGNATION, IT SHOULD BE ACCOMPANIED BY A FINAL TYPE PHYSICAL EXAMINATION, WHICH MAY BE TAKEN AT AN ARMY MEDICAL INSTALLATION IN NEW YORK. ON APRIL 28, 1948, THE OFFICER REQUESTED PERMISSION TO WITHDRAW HIS OATH OF OFFICE AS A CAPTAIN IN THE REGULAR ARMY SINCE NO DUTY HAD BEEN PERFORMED AND NO PAY ACCEPTED, OR, IN EVENT THAT SUCH ACTION WAS IMPOSSIBLE, THAT THIS LETTER BE ACCEPTED AS A RESIGNATION WITHOUT PREJUDICE. BUT, SINCE THE OFFICER DID NOT SUBMIT A FINAL TYPE PHYSICAL EXAMINATION, AS REQUESTED IN THE LETTER OF APRIL 13, 1948, THE ADJUTANT GENERAL IN A LETTER DATED JUNE 4, 1948, INSTRUCTED THE OFFICER TO REPORT TO THE NEAREST ARMY MEDICAL INSTALLATION FOR A FINAL TYPE PHYSICAL EXAMINATION. THE OFFICER WAS ADVISED THAT "RESIGNATION IS PENDING UNTIL RECEIPT OF SUCH" EXAMINATION. BY ENDORSEMENT DATED JUNE 21, 1948, THE OFFICER ADVISED THE ADJUTANT GENERAL THAT HE WOULD ARRANGE FOR A PHYSICAL EXAMINATION "AS SOON AS PRACTICABLE" AND THAT THE DELAY HAD BEEN DUE TO ABSENCE FROM HIS HOME ADDRESS SINCE JUNE 1, 1948. ON JULY 13, 1948, THE OFFICER SUFFERED A HEART ATTACK AND ON THE FOLLOWING DAY HE WAS ADMITTED TO THE FORT JAY STATION HOSPITAL, GOVERNORS ISLAND, NEW YORK. ON JULY 18, 1948, HE SENT A TELEGRAM TO THE ADJUTANT GENERAL STATING THAT HE HAD BEEN UNABLE TO COMPLETE FINAL TYPE PHYSICAL EXAMINATION DUE TO HOSPITALIZATION FOR INVESTIGATION OF HEART CONDITION AND REQUESTED THAT HIS RESIGNATION BE WITHDRAWN. AFTER CERTAIN CORRESPONDENCE BETWEEN THE ADJUTANT GENERAL AND THE COMMANDING OFFICER OF THE STATION HOSPITAL, FORT JAY, NEW YORK, THE OFFICER WAS ADVISED THAT THE REQUEST FOR WITHDRAWAL OF HIS RESIGNATION HAD BEEN APPROVED BY THE DEPARTMENT OF THE ARMY. ON DECEMBER 30, 1948, THE ADJUTANT GENERAL ADVISED THE COMMANDING OFFICER, TILTON GENERAL HOSPITAL, FORT DIX, NEW JERSEY (TO WHICH HOSPITAL THE OFFICER APPARENTLY HAD BEEN TRANSFERRED), IN PERTINENT PART, AS FOLLOWS:

* * * UPON HIS SECOND APPLICATION HE WAS AGAIN TENDERED COMMISSION IN R.A. 19 JUNE 47 AND HE AGAIN DECLINED TO ACCEPT OVER PERSONAL SIGNATURE ON 19 NOV. 47 PD. ON 29 NOV. 47 HE COMPLETED OATH OF OFFICE BUT IN VIEW OF FORMAL DECLINATION DTD. 19 NOV. HIS PURPORTED ACCEPTANCE OF APMT. ON 29 NOV. WAS OF NO LEGAL EFFECT AND DID NOT VEST HIM WITH TITLE THAT OFFICE PD. SUBJECT NEVER DID REPORT FOR MILITARY DUTY OR PERFORM ANY SUCH DUTY AS R.A. OFF. AND IS NOT NOW AND NEVER HAS BEEN MEMBER REGULAR ARMY PD. ON 13 JUL. WHEN ARB FOUND DISABILITY OCCURRED SUBJECT WAS NOT ON AD AND WAS NOT MEMBER OF R.A. THEREFORE DISABILITY NOT INCIDENT OF SV. AND SUBJECT NOT ENTITLED HAD HE BEEN ON AD AS RESERVE OR R.A. OFF. PD. FURNISH SUBJECT COPY THIS RADAR AND DISPOSE OF PATIENT ACCORDINGLY. * * *

IT IS APPARENT THAT THE ARMY AUTHORITIES DID NOT CONSIDER THE OFFICER AS BEING ON THE ACTIVE LIST OF THE REGULAR ARMY AND, CONSEQUENTLY, HE WAS NOT PAID ACTIVE-DUTY PAY AND ALLOWANCES FOR ANY PERIOD FOLLOWING HIS RELEASE FROM ACTIVE DUTY AS A RESERVE OFFICER JANUARY 24, 1946, EXCEPT FOR THREE DAYS FROM DECEMBER 5 TO 7, 1947, WHEN HE PERFORMED ACTIVE TRAINING DUTY AS A COLONEL IN THE OFFICERS' RESERVE CORPS. HE SUED IN THE COURT OF CLAIMS TO RECOVER THE ACTIVE DUTY PAY AND ALLOWANCES OF HIS GRADE FOR THE PERIOD NOVEMBER 29, 1947, THROUGH JANUARY 10, 1948, AND JULY 13, 1948, THROUGH FEBRUARY 28, 1949. IN AN OPINION DATED JANUARY 3, 1950, FREDERICK MATHIAS SCHELLHAMMER V. UNITED STATES, C.1CLS NO. 49053, THE COURT CONCLUDED THAT "THE PLAINTIFF WAS, FROM NOVEMBER 29, 1947, THE DATE ON WHICH HE EXECUTED THE OATH OF OFFICE, AND CONTINUED THROUGH FEBRUARY 28, 1949, THE LAST DATE FOR WHICH COMPENSATION IS CLAIMED HEREIN, AN OFFICER IN THE REGULAR ARMY OF THE UNITED STATES.' AFTER THE SAID DECISION OF THE COURT OF CLAIMS, THE DEPARTMENT OF THE ARMY, BY PARAGRAPH 55, SPECIAL ORDER NO. 77, DATED APRIL 20, 1950, ANNOUNCED THE OFFICER'S RETIREMENT FROM ACTIVE SERVICE EFFECTIVE FEBRUARY 28, 1949, UNDER THE PROVISIONS OF SECTION 1251, REVISED STATUTES, AND HIS ADVANCEMENT TO THE GRADE OF COLONEL ON THE RETIRED LIST EFFECTIVE MARCH 1, 1949, UNDER THE PROVISIONS OF SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, PUBLIC LAW 810, 62 STAT. 1085, HE HAVING BEEN FOUND BY AN ARMY RETIRING BOARD INCAPACITATED FOR ACTIVE SERVICE ON ACCOUNT OF DISABILITY INCIDENT THERETO, WHICH FINDINGS ARE UNDERSTOOD TO HAVE BEEN APPROVED BY THE PRESIDENT ON APRIL 20, 1950. THE ONLY QUESTION FOR CONSIDERATION AT THE PRESENT TIME IS WHETHER THE OFFICER IS ENTITLED TO RETIRED PAY OF A COLONEL FROM MARCH 1, 1949, TO MAY 31, 1950, ON THE BASIS OF THE RETIREMENT ORDER DATED APRIL 20, 1950.

SECTION 1251, REVISED STATUTES, 10 U.S.C. 933, THE LAW UNDER WHICH IT IS STATED THAT THE OFFICER WAS RETIRED, PROVIDES THAT WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF SERVICE AND SUCH DECISION IS APPROVED BY THE PRESIDENT, THE OFFICER SHALL BE RETIRED AND PLACED ON THE RETIRED LIST WITH 75 PERCENTUM (AS PROVIDED BY SECTION 1274, REVISED STATUTES, 10 U.S.C. 971) OF THE PAY OF THE RANK ON WHICH RETIRED. HOWEVER, THE SAID SECTION 1251, REVISED STATUTES, WAS EXPRESSLY REPEALED AS OF OCTOBER 1, 1949, BY SECTION 531 (B) (2) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 838. HENCE, THERE IS HERE INVOLVED NOT ONLY THE MATTER OF RETIREMENT MADE RETROACTIVELY EFFECTIVE, BUT, ALSO, THE MORE FAR-REACHING MATTER OF RETIREMENT UNDER A LAW WHICH HAD BEEN REPEALED. AS TO THE FIRST OF THESE, IT CONSISTENTLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS THAT RETIREMENT CONSTITUTES A CHANGE OF STATUS AND, EXCEPT IN CASES SPECIFICALLY AUTHORIZED BY STATUTE, RETIREMENT MAY NOT LAWFULLY BE EFFECTIVE PRIOR TO THE DATE UPON WHICH THE FINDINGS OF THE RETIRING BOARD ARE APPROVED. COMP. GEN. 663, AT PAGE 665. ALSO, THAT THE EFFECTIVE DATE OF THE RETIREMENT OF A REGULAR ARMY OFFICER IS GOVERNED BY THE DATE WHEN THE PRESIDENT APPROVES HIS RETIREMENT AND BY THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253. SEE 26 COMP. GEN. 711, AT PAGE 715. TO THE REPEAL PHASE OF THIS MATTER, THE GENERAL RULE IS THAT WHERE A STATUTE IS REPEALED AND THERE IS NO SAVING CLAUSE, THE REPEALED STATUTE IS CONSIDERED AS IF IT HAD NEVER EXISTED, EXCEPT IN CASES WHERE A VESTED RIGHT HAS BEEN ACQUIRED UNDER THE REPEALED LAW. SEE 50 AM.JUR., STATUTES, SECTION 524, ET SEQ. ALSO, IT IS WELL SETTLED THAT ANY RIGHT CONFERRED BY STATUTE MAY BE TAKEN AWAY BY STATUTES BEFORE IT HAS BECOME VESTED. AND, IT IS EQUALLY SETTLED THAT THERE CAN BE NO VESTED RIGHT IN THE CONTINUED EXISTENCE OF A STATUTE SO AS TO PRECLUDE ITS CHANGE OR REPEAL BY THE LEGISLATURE. 16 C.J.S., CONSTITUTIONAL LAW, SECTION 223.

ON APRIL 20, 1950, WHEN THE FINDINGS OF THE ARMY RETIRING BOARD ARE UNDERSTOOD TO HAVE BEEN FINALLY APPROVED, THE LAW UNDER WHICH THE OFFICER PURPORTEDLY WAS RETIRED HAD BEEN REPEALED AS OF OCTOBER 1, 1949, BY THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949. WHILE THE SAID ACT CONTAINS A NUMBER OF SAVING PROVISIONS, NONE HAS BEEN REFERRED TO OR CONTENDED AS BEING APPLICABLE IN THE PRESENT CASE. CONSEQUENTLY, IN THE ABSENCE OF A SAVING PROVISION SPECIFICALLY PERMITTING MEMBERS RETIRED AFTER OCTOBER 1, 1949, UNDER CIRCUMSTANCES SIMILAR TO THOSE APPEARING IN THIS CASE, TO RECEIVE RETIREMENT BENEFITS UNDER LAWS APPLICABLE PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, OR A JUDICIAL DETERMINATION OF THE MATTER, THIS OFFICE WOULD NOT BE JUSTIFIED IN APPROVING THE PAYMENT OF RETIRED PAY BASED UPON THE RETIREMENT ORDERS ISSUED IN THIS CASE. ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED, AND THE VOUCHER IS BEING RETAINED IN THIS OFFICE.