A-191, MARCH 17, 1925, 4 COMP. GEN. 773

A-191, MARCH 17, 1925, 4 COMP. GEN. 773

TRANSFER OF DISCHARGED MEMBER OF NAVY TO FLEET NAVAL RESERVE - JURISDICTION OF THE GENERAL ACCOUNTING OFFICE AN EXECUTED DISCHARGE FROM THE MILITARY OR NAVAL SERVICE LEGALLY ISSUED BY AN AUTHORIZED OFFICIAL CAN NOT BE REVOKED, IN THE ABSENCE OF FRAUD ON THE PART OF THE OFFICER OR MAN DISCHARGED, SO AS TO RESTORE THE PERSON TO WHOM IT WAS ISSUED TO THE SERVICE. THE TRANSFER OF AN ENLISTED MAN OF THE NAVY TO THE FLEET NAVAL RESERVE CAN ONLY BE MADE WHEN THE SERVICE REQUIRED BY STATUTE TO ENTITLE THE MAN TO SUCH TRANSFER IS AN ACCOMPLISHED FACT, BUT WHERE THE RECORDS OF THE NAVY DEPARTMENT PRIMA FACIE SHOW AT THE TIME OF TRANSFER THE LEGAL QUALIFICATION THEREFOR, THE STATUS THUS CREATED BY SUCH TRANSFER WILL NOT BE QUESTIONED IN THE SETTLEMENT OF HIS ACCOUNTS, IN THE ABSENCE OF FRAUD OR GROSS MISTAKE. QUESTIONS OF LAW OR OF FACT INVOLVING THE SETTLEMENT OF CLAIMS OR ACCOUNTS ARE, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE IN A SPECIFIC CASE, WITHIN THE EXCLUSIVE JURISDICTION OF THE COMPTROLLER GENERAL, AND THE POWERS AND DUTIES CONFERRED UPON THAT OFFICIAL IN THE SETTLEMENT OF SUCH CLAIMS OR ACCOUNTS ARE REQUIRED TO BE EXERCISED WITHOUT CONTROL OR DIRECTION FROM ANY OTHER OFFICER OF THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MARCH 17, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 13, 1925, AS FOLLOWS:

THERE IS INCLOSED HEREWITH COPY OF OPINION OF THE ATTORNEY GENERAL OF THE UNITED STATES, DATED 5 FEBRUARY, 1925, RELATIVE TO THE STATUS OF WILLIE P. CONWAY, A.C.M.M., U.S.N.R.F.

THE CASE OF WILLIE PERRY CONWAY WAS THE SUBJECT OF DECISION BY ME AUGUST 31, 1923. BY YOUR LETTER OF NOVEMBER 15, 1924, MY ATTENTION WAS CALLED TO AN OPINION EXPRESSED BY THE ATTORNEY GENERAL, THE CASE WAS AGAIN FULLY CONSIDERED AND BY DECISION OF NOVEMBER 24, 1924, YOU WERE INFORMED OF THE CONCLUSION REACHED. THESE DECISIONS TREATED OF MATTERS IN THE EXCLUSIVE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE -- THAT IS, THE DISBURSEMENT AND ACCOUNTING FOR PUBLIC FUNDS, AND THE ACTION TAKEN WAS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. THIS JURISDICTION IS REQUIRED TO BE EXERCISED "INDEPENDENT OF THE EXECUTIVE DEPARTMENTS AND UNDER THE CONTROL AND DIRECTION OF THE COMPTROLLER GENERAL OF THE UNITED STATES" WHOSE POWERS AND DUTIES ARE REQUIRED TO BE PERFORMED "WITHOUT DIRECTION FROM ANY OTHER OFFICER.'

I TAKE YOUR LETTER TO MEAN THAT YOU DESIRE A FURTHER CONSIDERATION OF THE CASE IN VIEW OF THE OPINION OF THE ATTORNEY GENERAL, DATED FEBRUARY 5, 1925, WITH REFERENCE TO A MATTER INVOLVING BASICALLY A DISBURSEMENT OF PUBLIC MONEYS. WHILE THE OPINION OF THE ATTORNEY GENERAL, ESPECIALLY IN VIEW OF THE TWO CONSIDERATIONS HERETOFORE GIVEN BY THIS OFFICE, WOULD NOT APPEAR TO REQUIRE FURTHER CONSIDERATION OF THE MATTER, YET, UNDERSTANDING YOUR LETTER TO BE A REQUEST FOR SUCH FURTHER CONSIDERATION AND EMANATING FROM THE SECRETARY OF THE NAVY ON A MATTER ARISING IN HIS DEPARTMENT, THE DEFERENCE TO WHICH SUCH A REQUEST IS ENTITLED WILL BE ACCORDED.

IT IS OBSERVED THAT NOTWITHSTANDING THE AFORESAID PRIOR DECISIONS OF THIS OFFICE AS TO THE NONAVAILABILITY OF APPROPRIATED FUNDS FOR PAYMENT TO CONWAY AS PROPOSED BY YOUR DEPARTMENT, THERE SEEM TO HAVE BEEN SUBMITTED TO THE ATTORNEY GENERAL BY YOUR DEPARTMENT, PRESUMABLY PURSUANT TO SECTION 356, REVISED STATUTES, UNDER WHICH HE IS AUTHORIZED TO GIVE AN ADVISORY OPINION TO THE HEAD OF AN EXECUTIVE DEPARTMENT UPON ADMINISTRATIVE MATTERS MERELY, SUCH REPRESENTATIONS AS INDUCED THE EXPRESSION OF OPINION DATED FEBRUARY 5, 1925, WHICH YOU NOW SUBMIT EVIDENTLY IN SUPPORT OF AND AS ARGUMENT FAVORABLE TO THE V&EW HERETOFORE ASSERTED BY YOUR DEPARTMENT. VIEW OF THE FACT THAT OPINIONS OF THE ATTORNEY GENERAL ARE ADVISORY ONLY AND LACK THE FORCE OF A JUDICIAL DETERMINATION, SUCH OPINIONS, WHILE BECAUSE OF THEIR HIGH SOURCE ARE ENTITLED TO AND ARE ACCORDED BY THIS OFFICE FULL CONSIDERATION, MUST BE ACCEPTED ONLY AS ADVOCATING THE VIEWS AND URGING THE ACTION THEREIN SUGGESTED. TO ACCEPT SUCH OPINIONS AS IN ANY MANNER DECISIVE OR BINDING UPON THIS OFFICE SO AS TO CONTROL ITS ACTION UPON ANY MATTER PROPERLY FOR ITS DECISION WOULD BE IN VIOLATION OF THE PLAIN TERMS OF THE APPLICABLE STATUTES.

THE FACTS OF THE CONWAY CASE HAVE BEEN HERETOFORE STATED AND NEED THEREFORE BE BUT BRIEFLY SUMMARIZED. CONWAY, WHILE SERVING IN AN ENLISTMENT FOR FOUR YEARS ENTERED INTO SEPTEMBER 17, 1919, SUFFERED AN ACCIDENT IN A SEAPLANE FEBRUARY 11, 1921, RESULTING IN HIS OWN SERIOUS INJURY, THE DEATH OF AN ENLISTED MAN, AND THE DESTRUCTION OF THE SEAPLANE. AN INVESTIGATION SEEMS TO HAVE BEEN CONDUCTED AND THE BOARD OF INVESTIGATION FIXED THE RESPONSIBILITY FOR THE ACCIDENT UPON CONWAY. MAY 6, 1921, A BOARD OF MEDICAL SURVEY REPORTED AS TO CONWAY THAT HIS * * * MENTAL CONDITION HAS CLEARED UP EXCEPT THAT HE SUFFERS AN ENTIRE LAPSE OF MEMORY FROM THE TIME HE ENTERED THE PLANE UNTIL TWENTY-THREE (23) DAYS LATER. THE ULTIMATE COMPLETE RECOVERY OF HIS MENTALITY IS DOUBTFUL. IS NOT CONSIDERED FIT FOR FURTHER MILITARY SERVICE, BUT IS NOT A MENACE TO THE COMMUNITY AT LARGE.

PRESENT CONDITION, UNFIT FOR SERVICE.

PROBABLE FUTURE DURATION, PERMANENT.

RECOMMENDATION, THAT HE BE DISCHARGED FROM THE U.S. NAVAL SERVICE.

ON MAY 18, 1921, THE BUREAU OF MEDICINE AND SURGERY FORWARDED THE REPORT OF BOARD OF MEDICAL SURVEY TO THE BUREAU OF NAVIGATION APPROVING THE RECOMMENDATION OF THE BOARD; AND ON JUNE 1, 1921, THE BUREAU OF NAVIGATION FORWARDED THE REPORT TO THE MEDICAL OFFICER COMMANDING U.S. NAVAL HOSPITAL, PENSACOLA, FLA., WITH INDORSEMENT:

THE RECOMMENDATION OF THE BOARD OF MEDICAL SURVEY IN THIS CASE IS APPROVED. RETURN PAPERS WITH REPORT OF ACTION TAKEN.

IT IS SAID THAT THE ACTION OF THE BUREAU OF MEDICINE AND SURGERY AND THE INDORSEMENT OF THE BUREAU OF NAVIGATION WERE "PRINTED.'

ON JUNE 10, 1921, THE COMMANDING OFFICER UNITED STATES NAVAL HOSPITAL, PENSACOLA, FLA., RETURNED THE REPORT WITH THE FOLLOWING INDORSEMENT:

RETURNED. THE ABOVE-NAMED MAN WAS THIS DATE DISCHARGED FROM THE NAVAL SERVICE.

APPARENTLY THE SUGGESTION THAT "PRINTED" ACTION WAS TAKEN AND THE

"PRINTED" INDORSEMENT WAS FORWARDED HAS FOR ITS PURPOSE TO CONVEY AN IMPRESSION THAT THE RECOMMENDATION AND THE DIRECTION WERE IMPROVIDENTLY MADE AND GIVEN. THE FACT THAT "PRINTED" ACTIONS AND INDORSEMENTS HAVE BEEN PROVIDED ESTABLISHES THAT THAT IS THE USUAL AND PROPER METHOD OF DISPOSING OF SUCH MATTERS.

IT APPEARS THAT INDEPENDENTLY OF THIS ACTION ON THE REPORT AS TO THE PHYSICAL CONDITION OF CONWAY LEADING TO HIS ULTIMATE SEPARATION FROM THE SERVICE, THE REPORT OF THE BOARD OF INVESTIGATION FIXING RESPONSIBILITY FOR THE ACCIDENT ON CONWAY WAS UNDER CONSIDERATION IN ANOTHER SECTION OF THE BUREAU OF NAVIGATION; THAT PORTION OF THE REPORT HOLDING CONWAY RESPONSIBLE FOR THE ACCIDENT WAS DISAPPROVED; AND ON JUNE 14, 1921, A NOTICE WAS SENT TO THE MEDICAL OFFICER AT PENSACOLA CANCELING THE APPROVAL OF THE DISCHARGE OF CONWAY; THAT ON JUNE 27 THE CHIEF OF THE BUREAU OF NAVIGATION, OVER HIS OWN SIGNATURE, ANNOUNCED DISAPPROVAL OF THE RECOMMENDATION; THAT OFFICER, HOWEVER, RECOGNIZED THAT AT THAT TIME CONWAY HAD BEEN DISCHARGED AND THE PURPOSE OF HIS ACTION WAS TO CORRECT THE DISCHARGE ISSUED FROM A DISCHARGE FOR PHYSICAL DISABILITY "NOT IN THE LINE OF DUTY" TO SHOW DISCHARGE "IN LINE OF DUTY.' THERE WAS OTHER ACTION ON THE REPORT OF THE BOARD OF INVESTIGATION, INCLUDING AN ACTION BY THE SECRETARY OF THE NAVY JUNE 14, 1921, TO THE EFFECT THAT THE INJURIES SUSTAINED BY CONWAY WERE INCURRED IN LINE OF DUTY AND WERE NOT THE RESULT OF HIS OWN MISCONDUCT. ON JUNE 28, 1921, THE BUREAU OF NAVIGATION AUTHORIZED THE RECRUITING OFFICER AT NASHVILLE, TENN., TO REENLIST CONWAY "IF PHYSICALLY QUALIFIED, AND IF NOT PHYSICALLY QUALIFIED, A RECOMMENDATION FOR WAIVER BE SUBMITTED TO THE BUREAU.' ON JULY 11, 1921, CONWAY REQUESTED REINSTATEMENT IN THE NAVY AND WAS INFORMED BY THE BUREAU OF NAVIGATION, THROUGH THE RECRUITING OFFICER AT NASHVILLE, JULY 23, 1921, THAT IT WAS NOT POSSIBLE TO CANCEL THE DISCHARGE. HE WAS ACCORDINGLY REENLISTED JULY 28, 1921. ON AUGUST 22, 1921, THE SECRETARY OF THE NAVY DETERMINED THAT THE DISCHARGE OF CONWAY JUNE 10, 1921, WAS ISSUED IN ERROR; FIRST, BECAUSE THE BOARD OF MEDICAL SURVEY BASED ITS FINDINGS ON THE REPORT OF THE BOARD OF INVESTIGATION AS TO CONWAY'S RESPONSIBILITY (ITS REPORT AND THE BASIS OF ACTION WAS CONWAY'S PHYSICAL CONDITION); SECOND, THAT THE APPROVAL OF THE RECOMMENDATION OF THE BOARD OF MEDICAL SURVEY WAS MADE BEFORE REPORT OF THE BOARD OF INVESTIGATION HAD BEEN ACTED UPON BY THE BUREAU; THIRD, THAT ON JUNE 27, 1921, THE BUREAU OF NAVIGATION HAD CANCELED ITS APPROVAL OF THE RECOMMENDATION FOR HIS DISCHARGE, ADDING THAT "THERE APPEARS WITH THE REPORT OF THE BOARD OF MEDICAL SURVEY AN APPROVAL ON A PRINTED FORM AND A DISAPPROVAL TYPEWRITTEN AND SIGNED PERSONALLY BY THE CHIEF OF THE BUREAU OF NAVIGATION; " AND FOURTH, THAT THE QUESTION WHETHER CONWAY SHOULD BE DISCHARGED WAS PENDING IN ONE SECTION OF THE BUREAU OF NAVIGATION WHEN ANOTHER SECTION OF THE BUREAU APPROVED THE REPORT OF THE BOARD OF MEDICAL SURVEY AND AUTHORIZED HIS DISCHARGE, THE FOLLOWING SENTENCE APPEARING IN THIS CONNECTION:

* * * AS A RESULT OF THE SUBSEQUENT ACTION OF THE CHIEF OF BUREAU CANCELLING THE APPROVAL BY THE SECTION CHIEF AND DISAPPROVING THE REPORT OF THE BOARD OF MEDICAL SURVEY, THERE IS NO APPROVED REPORT OF THE BOARD OF MEDICAL SURVEY WHICH CAN BE THE BASIS FOR THE DISCHARGE OF CONWAY ON ACCOUNT OF MEDICAL SURVEY GIVEN HIM ON 10 JUNE, 1921.

THE SECRETARY THEREUPON HELD:

* * * THAT THE DISCHARGE OF CONWAY BY MEDICAL SURVEY ON 10 JUNE, 1921, WAS ISSUED AS A RESULT OF ERRORS OF FACT EXISTING AT THAT TIME AND IS NULL AND VOID. * * *

IT WAS THEREUPON DIRECTED THAT THE DISCHARGE BE CANCELED AND THAT CONWAY BE "RESTORED" TO ACTIVE DUTY AND THAT HE BE TAKEN UP FOR PAY FROM JUNE 11, 1921.

WITH RESPECT TO THIS STATE OF FACTS THE OPINION OF THE ATTORNEY GENERAL WHICH YOU NOW TRANSMIT CONTAINS THE FOLLOWING:

EVEN IF THE ACT OF YOUR PREDECESSOR IN CANCELLING CONWAY'S DISCHARGE AND REENLISTMENT, DIRECTING THAT HE BE RESTORED TO DUTY UNDER THE ENLISTMENT OF SEPTEMBER 17, 1919, AND THAT HIS SERVICE RECORD BE CORRESPONDINGLY CORRECTED, WAS ERRONEOUS (I AM NOT PREPARED TO SAY THAT IT WAS), NEVERTHELESS IT WAS NOT SO PLAINLY CONTRARY TO BOTH LAW AND FACT THAT THE SECRETARY'S SUBSEQUENT ACT IN TRANSFERRING CONWAY TO THE FLEET NAVAL RESERVE SHOULD NOW BE REGARDED NOT AS AN EXERCISE OF JUDGMENT BUT RATHER AS AN INADVERTENCE.

SO LONG AGO AS APRIL 10, 1869, 13 OP.ATTY.GEN. 16, 18, THE OPINION WAS EXPRESSED THAT:

* * * LIEUTENANT HELMS HAVING IN FACT RECEIVED AN HONORABLE DISCHARGE, AND PRESUMING THIS TO HAVE BEEN GIVEN BY COMPETENT AUTHORITY, THE SUBSEQUENT CANCELLATION OF THE CERTIFICATE THEREOF, WHICH WAS ONLY AN EVIDENCE OF SUCH DISCHARGE, DID NOT OPERATE TO AVOID THE DISCHARGE ITSELF NOR MAKE IT CAPABLE OF MODIFICATION TO THE PREJUDICE OF THE OFFICER * *

IN UNITED STATES V. CORSON, 114 U.S. 619, 621, IT WAS STATED:

IN VIEW OF THESE ADJUDICATIONS, IT IS NOT TO BE DOUBTED THAT THE EFFECT OF THE ORDER OF MARCH 27, 1865, DISMISSING APPELLEE FROM THE SERVICE, WAS TO SEVER HIS RELATIONS WITH THE ARMY. THENCE FORWARD AND UNTIL, IN SOME LAWFUL WAY, AGAIN APPOINTED, HE WAS DISCONNECTED FROM THAT BRANCH OF THE PUBLIC SERVICE AS COMPLETELY AS IF HE HAD NEVER BEEN AN OFFICER OF THE ARMY. SO THAT HIS RIGHT TO PAY AS CAPTAIN AND ASSISTANT QUARTERMASTER OF VOLUNTEERS, FROM THE DATE OF HIS DISMISSAL FROM THE SERVICE BY PRESIDENT LINCOLN TO THE DATE OF THE ORDER OF PRESIDENT JOHNSON, DEPENDS ENTIRELY UPON THE QUESTION WHETHER AN OFFICER OF THE ARMY, ONCE LAWFULLY DISMISSED FROM THE SERVICE, CAN REGAIN HIS POSITION AND BECOME ENTITLED TO ITS EMOLUMENTS BY MEANS OF A SUBSEQUENT ORDER REVOKING THE ORDER OF DISMISSAL AND RESTORING HIM TO HIS FORMER POSITION.

THIS QUESTION MUST BE ANSWERED IN THE NEGATIVE UPON THE AUTHORITY OF MIMMACK V. UNITED STATES, 97 U.S. 426. THE DEATH OF THE INCUMBENT COULD NOT MORE CERTAINLY HAVE MADE A VACANCY THAN WAS CREATED BY PRESIDENT LINCOLN'S ORDER OF DISMISSAL FROM THE SERVICE. AND SUCH VACANCY COULD ONLY HAVE BEEN FILLED BY A NEW AND ORIGINAL APPOINTMENT, * * *.

WINTHROP IN HIS MILITARY LAW AND PRECEDENTS, VOLUME 2, PAGE 848, IN SPEAKING OF A DISCHARGE "BY ORDER" SAYS:

* * * SUCH DISCHARGE IS ALSO FINAL IN DETACHING THE RECIPIENT ABSOLUTELY FROM THE ARMY UNDER THE ENLISTMENT TO WHICH IT RELATES, AND, SO FAR, FROM MILITARY JURISDICTION AND CONTROL, AND (THUS FAR ALSO), REMANDING HIM TO THE STATUS AND CAPACITY OF A CIVILIAN. WHILE AN ORDER FOR SUCH A DISCHARGE MAY BE RECALLED BEFORE IT IS EXECUTED, THE DISCHARGE ONCE DULY DELIVERED CAN NOT BE CANCELLED OR REVOKED, EXCEPT WHERE OBTAINED BY FALSEHOOD OR FRAUD.

TO THE SAME EFFECT ARE NUMEROUS OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY; SEE 1912 DIGEST OF OPINIONS, PAGE 455, WHERE IT IS SAID:

AN EXECUTED HONORABLE DISCHARGE ISSUED BY COMPETENT AUTHORITY CAN NOT BE REVOKED UNLESS OBTAINED BY FRAUD ON THE PART OF THE SOLDIER. * * * MERE MISTAKE ON THE PART OF THE OFFICER EXECUTING IT WILL NOT JUSTIFY REVOCATION. * * *

AND ON PAGE 456 IT IS SAID:

A SOLDIER WAS DULY DISCHARGED PURSUANT TO AN ORDER FROM THE WAR DEPARTMENT. THE ORDER WAS ISSUED UNDER A MISAPPREHENSION IN REGARD TO HIS ACTUAL STATUS AT THE TIME--- A MISTAKE OF FACT--- WHICH IF DISCOVERED WOULD HAVE DEFERRED OR PREVENTED THE ISSUING OF THE ORDER. HELD THAT THE MISTAKE OF FACT DID NOT INVALIDATE THE DISCHARGE; THAT HAVING BEEN DULY EXECUTED IT COULD NOT BE REVOKED.

AND THE VERY NATURE OF THE MILITARY STATUS (AS TO WHICH SEE IN RE GRIMLEY, 137 U.S. 147) MAKES IMPOSSIBLE ANY OTHER CONCLUSION. THE BEGINNING OF THE STATUS, THE CHANGE FROM A CIVILIAN TO A MILITARY STATUS, AND EQUALLY THE CHANGE FROM A MILITARY TO A CIVILIAN STATUS MUST BE DEFINITELY FIXED. AFTER THE CHANGE FROM THE MILITARY TO CIVILIAN STATUS HAS OCCURRED, IT WOULD SEEM TOO PLAIN FOR ARGUMENT THAT THE MILITARY STATUS CAN NOT AGAIN BE ASSUMED WITHOUT THE USUAL FORMALITIES OF ENLISTMENT OR APPOINTMENT. OTHERWISE FORMER MEMBERS OF THE MILITARY AND NAVAL SERVICE COULD HAVE NO ASSURANCE THAT THEY WERE FREED FROM THEIR MILITARY STATUS AND WERE ENTITLED TO THE RIGHTS AND PRIVILEGES OF CIVILIANS. USING THE ILLUSTRATION OF THE SUPREME COURT IN IN RE GRIMLEY, A PERSON ONCE LEGALLY AND EFFECTIVELY FREED FROM THE BONDS OF MATRIMONY CAN NOT AGAIN ASSUME THE MARITAL STATUS WITHOUT OBSERVING THE FORMS AND CEREMONIES REQUIRED BY LAW. AND THE SAME IS TRUE WITH RESPECT TO THE MILITARY STATUS. THIS OPINION, ALTHOUGH ONLY RAISING A DOUBT AS TO THE CORRECTNESS OF THE DOCTRINE THAT AN EXECUTED DISCHARGE FROM THE MILITARY OR NAVAL SERVICE LEGALLY ISSUED BY AN AUTHORIZED OFFICIAL CAN NOT BE REVOKED EXCEPT FOR FRAUD OF THE OFFICER OR MAN, EVEN TO THIS EXTENT STANDS ALONE AMONG A WEALTH OF DECISIONS, PRECEDENTS, AND THE RECORDS OF ADMINISTRATIVE PRACTICES OF LONG STANDING AND UNIVERSAL APPLICATION. DEPARTURE FROM SUCH A WELL ESTABLISHED DOCTRINE CAN ONLY RE RECOGNIZED BY THIS OFFICE WHEN SUCH A DEPARTURE IS REQUIRED BY MANDATORY LAW.

I COME NOW TO THE QUESTION OF CONWAY'S TRANSFER TO THE FLEET NAVAL RESERVE. THE ACT OF AUGUST 29, 1916, 39 STAT. 589, AUTHORIZED THE SECRETARY OF THE NAVY TO TRANSFER

* * * TO THE FLEET NAVAL RESERVE AT ANY TIME WITHIN HIS DISCRETION ANY ENLISTED MAN OF THE NAVAL SERVICE WITH TWENTY OR MORE YEARS' NAVAL SERVICE, AND ANY ENLISTED MAN, AT THE EXPIRATION OF A TERM OF ENLISTMENT WHO MAY BE THEN ENTITLED TO AN HONORABLE DISCHARGE, AFTER SIXTEEN YEARS' NAVAL SERVICE * * *.

THE ACT OF JULY 1, 1922, 42 STAT. 799, PROVIDES:

* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE

CONWAY'S ENLISTMENT OF SEPTEMBER 17, 1919, HAD IT BEEN SERVED TO COMPLETION, WITH AN EXTENSION OF TWO YEARS ENTERED INTO MAY 22, 1922, WOULD HAVE BROUGHT HIM WITHIN THIS ACT. HAVING BEEN DISCHARGED JUNE 10, 1921, AND REENLISTED JULY 28, 1921, HE DID NOT AND WOULD NOT HAVE THE SERVICE REQUIRED TO ESTABLISH ELIGIBILITY FOR TRANSFER UNDER THIS LAW.

THE FLEET NAVAL RESERVE WAS CREATED BY STATUTE AND THE QUALIFICATIONS FOR TRANSFER ARE FIXED AND REGULATED BY STATUTE. IT WOULD BE A STRANGE DOCTRINE INDEED, SUBVERSIVE TO ALL ACCEPTED RULES OF STATUTORY CONSTRUCTION THAT MANDATORY STATUTORY REQUIREMENTS CAN BE SET ASIDE BY EXECUTIVE OFFICERS. THE STATUTE HAVING FIXED SIXTEEN YEARS FOR ELIGIBILITY FOR TRANSFER TO THE FLEET NAVAL RESERVE, BY WHAT RULE OF LAW, ON WHAT HYPOTHESIS, CAN A TRANSFER BE JUSTIFIED WHERE THE SERVICE IS FIFTEEN YEARS, 364 DAYS? IN CONWAY'S CASE THE LAW REQUIRED THE COMPLETION OF SIXTEEN YEARS' SERVICE ON EXPIRATION OF THE ENLISTMENT IN WHICH SERVING ON JULY 1, 1922, AND NOT HAVING THAT SERVICE AT THE EXPIRATION OF THE ENLISTMENT ENTERED INTO JULY 28, 1921, HE WAS AS INELIGIBLE FOR TRANSFER TO THE FLEET NAVAL RESERVE WHEN HIS TRANSFER WAS ATTEMPTED AS THOUGH HE HAD NEVER SERVED IN THE NAVY. THIS IS NOT A CASE OF INACCURACIES IN THE RECORD IN HIS SERVICE, NOR ACASE INVOLVING A CHANGE IN THE METHOD OF COMPUTING SERVICE. THE RECORD OF HIS SERVICE IS CLEAR AND PLAIN. THERE WAS NOT THE SERVICE FIXED BY THE STATUTE TO ESTABLISH ELIGIBILITY. STATUTE CAN NOT BE SET ASIDE BY "INADVERTENCE" AS SEEMS TO BE SUGGESTED BY THE OPINION OF THE ATTORNEY GENERAL, AND LEGAL RIGHTS CAN NOT BE CREATED BY THE ERRORS OF ADMINISTRATIVE OFFICERS. THE PRESIDENT "SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED; " AND THE SECRETARY OF THE NAVY CAN NOT CHANGE THE LAW OR TRANSFER AN ENLISTED MAN TO THE FLEET NAVAL RESERVE WITHOUT THE SERVICE PRECISELY PRESCRIBED BY STATUTE. IT IS HOPED THIS WAS NOT EVEN INTENDED TO BE SUGGESTED BY THE OPINION OF THE ATTORNEY GENERAL.

THE SOUNDNESS OF THE VIEWS OF THIS OFFICE IN THIS RESPECT ARE SO OBVIOUS THAT CITATION OF AUTHORITIES IS UNNECESSARY. IT WILL BE ENOUGH TO REFER TO A RECENT CASE, THAT OF JOHN LAWLESS, ., V. THE UNITED STATES, DECIDED BY THE COURT OF CLAIMS, FEBRUARY 4, 1924, NO. 50B, WHERE IN A CASE INVOLVING THE STATUS OF AN OFFICER OF THE NAVAL RESERVE FORCE, THE COURT DECIDED, NOTWITHSTANDING THE ACTION OF THE SECRETARY OF THE NAVY BASED UPON AN OPINION OF THE ATTORNEY GENERAL, THAT THE STATUS SOUGHT TO BE CREATED DID NOT EXIST BECAUSE THE FORMALITIES OF THE LAW WERE NOT OBSERVED. IT IS APPROPRIATE ALSO TO MENTION THAT THE THEN COMPTROLLER OF THE TREASURY HAD ORIGINALLY HELD THE PROCEDURE ADOPTED WAS ILLEGAL BUT AFTER THE OPINION OF THE ATTORNEY GENERAL AND IN VIEW OF THE WAR CONDITIONS PERMITTED IT.

IT IS SO AXIOMATIC AS TO HARDLY REQUIRE STATEMENT THAT THIS OFFICE MUST SETTLE CLAIMS AND ACCOUNTS ON PRECISELY THE SAME BASIS AS DO THE COURTS; IF A CLAIM IS NOT BASED ON LAW WHEN FILED IN COURT, IT IS NOT BASED ON LAW WHEN PRESENTED TO THIS OFFICE FOR SETTLEMENT. WHILE, THEREFORE, THIS OFFICE RECOGNIZES THE RESPONSIBILITY OF THE SECRETARY OF THE NAVY IN THE CONDUCT OF THE DEPARTMENT UNDER HIS CHARGE, THE SETTLEMENT OF CLAIMS AND ACCOUNTS RESULTING FROM HIS ADMINISTRATION MUST BE IN ACCORDANCE WITH THE LAW UNDER WHICH THE CLAIMS ARISE OR THE PAYMENTS ARE MADE.

MANY OF THE QUESTIONS RELATING TO FISCAL ACTION THAT CONFRONT THIS OFFICE ESPECIALLY FROM THE NAVAL AND MILITARY SERVICES, HAVE REMOTELY SOME ADMINISTRATIVE ACTION IN ITS NATURE NOT DIRECTLY INVOLVING PAYMENTS, AND THE ATTITUDE HAS NOT OF LATE BEEN SERIOUSLY ASSUMED THAT SUCH ADMINISTRATIVE ACTION MAY CONTROL THE PREEMINENT FISCAL QUESTIONS SO AS TO JUSTIFY PAYMENTS FROM PUBLIC FUNDS NOT AUTHORIZED BY LAW, BUT THE ATTITUDE OF THE NAVY DEPARTMENT NOW MORE RECENTLY APPEARS TO HAVE BEEN ASSUMED THAT WHEN AN ADVISORY OPINION OF THE ATTORNEY GENERAL IS OBTAINED, NOT, OF COURSE, WITH APPARENT REFERENCE TO THE FISCAL QUESTION BUT RATHER, OSTENSIBLY, WITH REFERENCE TO SOME COLLATERAL QUESTION, WHICH OPINION GIVES SUPPORT TO THE ADMINISTRATIVE VIEW OR ACTION, THERE IS SOME SUCH BINDING EFFECT THAT THE FISCAL QUESTIONS ARE CONTROLLED THEREBY. THE PROPRIETY OF EXPRESSING OPINION ON A QUESTION WITHIN THE JURISDICTION OF THIS OFFICE TO DETERMINE, IN VIEW OF THE POSSIBLE EMBARRASSMENT SHOULD THE QUESTION LATER CONFRONT THE UNITED STATES IN THE COURTS, IS, OF COURSE, A MATTER FOR CONSIDERATION BY THE ATTORNEY GENERAL. THE FALLACY THEREOF IS IMMEDIATELY APPARENT BY SIMPLY RECALLING THE FACT THAT BY STATUTE SUCH OPINIONS OF THE ATTORNEY GENERAL ARE ADVISORY ONLY AND BIND NO ONE--- NOT EVEN THE OFFICIAL REQUESTING THE OPINION OF THE ATTORNEY GENERAL--- AND THE FURTHER FACT, SO FAR AS THE GENERAL ACCOUNTING OFFICE IS CONCERNED, THAT THE STATUTES SPECIFICALLY REQUIRE ITS DUTIES TO BE PERFORMED ,WITHOUT DIRECTION FROM ANY OTHER OFFICER" THAN THE COMPTROLLER GENERAL OF THE UNITED STATES, AND ALSO PROVIDE HIS DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. FOR THIS OFFICE TO ACCEPT ANY THEORY WITH REFERENCE TO MATTERS WITHIN ITS JURISDICTION AS THUS APPEARING WOULD PERMIT TO BE ACCOMPLISHED INDIRECTLY THAT WHICH MAY NOT LAWFULLY BE DONE DIRECTLY, AND WOULD BE NO LESS THAN AN ABANDONMENT OF ITS DUTY.

IN MY LETTER TO YOU OF AUGUST 13, 1924, I TOUCHED UPON THE EXCLUSIVE JURISDICTION OF THIS OFFICE IN THE MATTER OF CLAIMS AND ACCOUNTS, AND THE FACT THAT ATTORNEYS GENERAL FROM THE PASSAGE OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 206, HAD RECOGNIZED THE EXCLUSIVE JURISDICTION OF THE COMPTROLLER OF THE TREASURY IN SUCH MATTERS AND HAD DECLINED TO GIVE OPINIONS DESIGNED TO INFLUENCE THE ACCOUNTING OFFICERS, AND MORE ESPECIALLY THE COMPTROLLER OF THE TREASURY. THIS WAS THE CONTEMPORANEOUS REACTION AND PRACTICE UNDER THE DOCKERY ACT.

ADMINISTRATIVE ACTION NOT AUTHORIZED BY LAW, RESULTING FROM MISTAKE OR OTHERWISE, MAY CREATE SUCH A CONDITION AS WHEN FULLY EXPLAINED WILL PROMPT THE CONGRESS TO GRANT RELIEF BY AN APPROPRIATION OF FUNDS, BUT MAY NOT BE THE BASIS FOR THE USE OF FUNDS APPROPRIATED FOR OTHER PURPOSES. IN SUCH CONNECTION, HOWEVER, THERE IS AFFORDED THE PROPER OPPORTUNITY FOR THE CONGRESS TO LEARN OF THE UNAUTHORIZED ADMINISTRATIVE ACTION CREATING THE CONDITION SOUGHT TO BE RELIEVED, TO ENABLE IT TO TAKE SUCH ACTION THEREON AS IT MAY CONSIDER JUSTIFIED.

THE CASE OF CONWAY AS PRESENTED MAY BE ONE OF HARDSHIP TO HIM. IT DOES NOT, HOWEVER, APPEAR THAT THE DEPARTMENT HAS ENDEAVORED TO RELIEVE THE SITUATION BY THE ONLY APPARENT LEGAL METHOD, TO WIT, RECOGNIZING HIM IN HIS ENLISTMENT ENTERED INTO JULY 28, 1921.

ON FURTHER CONSIDERATION THIS OFFICE MUST ADHERE TO THE VIEWS HERETOFORE ANNOUNCED AND ANY PAYMENTS TO CONWAY AS A TRANSFERRED MEMBER OF THE FLEET NAVAL RESERVE ON HIS ATTEMPTED TRANSFER OF JULY 10, 1922, WILL BE DISALLOWED IN DISBURSING OFFICERS' ACCOUNTS.