SEPTEMBER 5, 1922, 2 COMP. GEN. 179

SEPTEMBER 5, 1922, 2 COMP. GEN. 179

OFFICERS OF ARMY - DISCHARGED AND TENDERED LOWER COMMISSIONS ON REORGANIZATION THE REFUSAL BY ARMY OFFICERS TO ACCEPT THE COMMISSIONS TENDERED THEM IN LOWER GRADES ON THEIR BEING DISCHARGED AND TENDERED SUCH COMMISSIONS UNDER THE ACT OF JUNE 30, 1922, 42 STAT., 721, DOES NOT ENTITLE THEM TO THE BENEFITS CONFERRED BY THAT ACT ON OFFICERS SELECTED FOR ELIMINATION, AND THEY DO NOT BY SUCH REFUSAL BECOME ENTITLED UNDER THE ACT TO EITHER ONE YEAR'S PAY BY REASON OF THEIR DISCHARGE OR TO RETIREMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, SEPTEMBER 5, 1922:

I HAVE YOUR LETTER OF AUGUST 11, 1922, READING AS FOLLOWS:

THE ACT OF JUNE 30, 1922, MAKING APPROPRIATIONS FOR THE MILITARY AND NONMILITARY ACTIVITIES OF THE WAR DEPARTMENT FOR THE CURRENT FISCAL YEAR, 42 STAT., 721, REQUIRES THAT A CONSIDERABLE REDUCTION IN THE COMMISSIONED PERSONNEL OF THE ARMY AS A WHOLE, AND PARTICULARLY IN CERTAIN GRADES AND BRANCHES, BE EFFECTED IN THE IMMEDIATE FUTURE. THAT ACT, AFTER SPECIFYING THE NUMBER OF OFFICERS WHICH SHALL HEREAFTER CONSTITUTE THE NORMAL AUTHORIZED STRENGTH OF THE VARIOUS BRANCHES AND GRADES, CONTINUES:

"PROVIDED FURTHER, THAT OFFICERS IN EXCESS OF THE NUMBERS AUTHORIZED HEREIN AND NOT REMOVED FROM THE ACTIVE LIST BY OTHER MEANS SHALL BE DISPOSED OF AS FOLLOWS: * * * THOSE OTHER THAN OF THE MEDICAL DEPARTMENT AND CHAPLAINS SHALL, PRIOR TO JANUARY 1, 1923, BE ELIMINATED FROM THE ACTIVE LIST AS HEREINAFTER PROVIDED EXCEPT THAT NOT MORE THAN A TOTAL OF EIGHT HUNDRED NOW IN GRADES FROM COLONEL TO FIRST LIEUTENANT INCLUSIVE SHALL EITHER BE CONTINUED AS ADDITIONAL OFFICERS IN THEIR GRADES UNTIL ABSORBED, OR THOSE IN GRADES BELOW LIEUTENANT COLONEL SHALL, IN INVERSE ORDER OF STANDING ON THE PROMOTION LIST BEGINNING WITH THE LOWEST ON THE LIST IN EACH GRADE, BE DISCHARGED AND RECOMMISSIONED IN THE NEXT LOWER GRADE PRIOR TO JANUARY 1, 1923, * * *; OFFICERS SELECTED FOR ELIMINATION OF LESS THAN TEN YEARS' COMMISSIONED SERVICE MAY, UPON RECOMMENDATION OF THE BOARD HEREIN PROVIDED FOR, BE DISCHARGED WITH ONE YEAR'S PAY; * * *: PROVIDED FURTHER, THAT, OF THE EIGHT HUNDRED OR LESS OFFICERS TO BE ABSORBED OR RECOMMISSIONED UNDER THE PRECEDING PROVISO, A SUITABLE NUMBER OF OFFICERS IN GRADES FROM COLONEL TO FIRST LIEUTENANT, INCLUSIVE, SHALL BE CONTINUED AS ADDITIONAL UNTIL ABSORBED AND A SUITABLE NUMBER IN EACH GRADE FROM MAJOR TO FIRST LIEUTENANT SHALL BE RECOMMISSIONED IN THE NEXT LOWER GRADE, SUCH SUITABLE NUMBERS TO BE DETERMINED BY THE PRESIDENT UPON THE RECOMMENDATION OF THE BOARD OF GENERAL OFFICERS HEREINAFTER PROVIDED FOR: * * * PROVIDED FURTHER, THAT THE SECRETARY OF WAR SHALL CONVENE A BOARD OF FIVE GENERAL OFFICERS * * * WHICH BOARD, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, SHALL RECOMMEND TO THE PRESIDENT THE OFFICERS TO BE ELIMINATED FROM THE ACTIVE LIST UNDER THE PROVISIONS OF THIS ACT, THE NUMBER OF OFFICERS IN THE VARIOUS GRADES TO BE RECOMMISSIONED IN THE NEXT LOWER GRADE AS HEREINBEFORE PROVIDED, AND THE NUMBER OF OFFICERS IN VARIOUS GRADES TO BE CONTINUED AS ADDITIONAL UNTIL ABSORBED AS HEREINBEFORE PROVIDED: * * *.'

APPARENTLY, IN GIVING EFFECT TO THAT PORTION OF THE ACT WHICH PROVIDES THAT A NUMBER OF OFFICERS IN THE GRADES OF MAJOR, CAPTAIN, AND FIRST LIEUTENANT BE DISCHARGED AND RECOMMISSIONED IN THE NEXT LOWER GRADE, THE COURSE OF ADMINISTRATION MAY BE DIRECTED ALONG ANY ONE OF SEVERAL LINES. WHEN THE ACT BECAME EFFECTIVE THE NAMES OF 2,191 OFFICERS OF THE GRADE OF MAJOR WERE BORNE ON THE GENERAL PROMOTION LIST. THE NEWLY AUTHORIZED NORMAL STRENGTH OF THAT GRADE IS 1,575. ASSUMING FOR THE PURPOSE OF THIS COMMUNICATION THAT WHILE THE ACT UNDER CONSIDERATION IS BEING CARRIED INTO EFFECT THERE WILL BE NO REDUCTION IN THE NUMBER OF MAJORS THROUGH DEATH, RESIGNATION, OR THE OPERATION OF OTHER LAWS, THE MAJORS IN EXCESS OF 1,575, 616 IN ALL, MUST BE DISPOSED OF BY (A) CONTINUING A LIMITED NUMBER IN THAT GRADE AS ADDITIONAL OFFICERS, (B) RECOMMISSIONING A LIMITED NUMBER IN THE GRADE OF CAPTAIN, AND (C) ELIMINATING THE REMAINDER FROM THE ACTIVE LIST OF THE ARMY. ASSUMING FURTHER THAT THE BOARD OF GENERAL OFFICERS RECOMMENDS THAT 316 MAJORS, DESIGNATED BY NAME, BE ELIMINATED FROM THE ACTIVE LIST, THAT 100 MAJORS BE CONTINUED IN THAT GRADE AS ADDITIONAL OFFICERS, AND THAT 200 MAJORS BE DISCHARGED AND RECOMMISSIONED IN THE GRADE OF CAPTAIN, AND THAT THE PRESIDENT APPROVES THESE RECOMMENDATIONS, THE RECOMMENDATION THAT 200 MAJORS BE DISCHARGED AND RECOMMISSIONED AS CAPTAINS MAY BE GIVEN EFFECT IN EITHER ONE OF TWO WAYS, VIZ:

FIRST, BY DISCHARGING EACH OF THE 200 MAJORS FROM HIS COMMISSION AS A MAJOR AND AT THE SAME TIME TENDERING HIM A COMMISSION AS A CAPTAIN; AND,

SECOND, BY TENDERING EACH ONE OF THE 200 MAJORS A COMMISSION AS A CAPTAIN, WITH NOTICE THAT THE ACCEPTANCE OF THE NEW COMMISSION OF ITSELF WILL SERVE TO VACATE THE OFFICE THERETOFORE HELD BY HIM AS COMPLETELY AS WOULD THE DELIVERY OF A FORMAL CERTIFICATE OF DISCHARGE, AND WITH FURTHER NOTICE THAT IF HE FORMALLY DECLINE THE NEW COMMISSION OR FAIL FORMALLY TO ACCEPT IT ON OR BEFORE A SPECIFIED DATE HE WILL STAND DISCHARGED FROM THE ARMY ON THE LATTER DATE OR ON SOME OTHER SUBSEQUENT DATE SPECIFIED IN THE NOTICE.

IT WOULD APPEAR THAT AN OFFICER TENDERED A RECOMMISSION, WHO DOES NOT ACCEPT AND WHO IS THEREFORE DISCHARGED, IS NOT INCLUDED IN THE TOTAL OF 800 OR LESS WHO MAY BE HELD AS ADDITIONAL IN THEIR GRADES OR DISCHARGED AND RECOMMISSIONED. HIS FAILURE TO ACCEPT PREVENTS CONSUMMATION OF THE OPERATION OF BEING DISCHARGED AND RECOMMISSIONED. SUCH AN OFFICER BECOMES THEREFORE AN EXCESS OFFICER REMOVED FROM THE ACTIVE LIST BY DISCHARGE AND THE QUESTION ARISES AS TO WHETHER OR NOT HE IS TO BE DISCHARGED WITH ONE YEAR'S PAY.

AS IT IS DESIRABLE TO HAVE THE CONDITIONS UNDER WHICH A YEAR'S PAY MAY BE OR MUST BE PAID TO AN OFFICER WHO IS SEPARATED FROM THE ARMY IN THE OPERATION OF THE ACT OF JUNE 30, 1922, CLEARLY DEFINED FOR THE GUIDANCE OF OFFICERS OF THE FINANCE DEPARTMENT, I REQUEST YOUR DECISION AS TO WHICH, IF EITHER, OF THE TWO COURSES OF ADMINISTRATION OUTLINED ABOVE WOULD RESULT IN ENTITLING TO YEAR'S PAY AN OFFICER WHOM THE DULY APPROVED RECOMMENDATION OF THE BOARD OF GENERAL OFFICERS PLACES IN THE LIST OF THOSE TO BE DISCHARGED AND RECOMMISSIONED IN THE NEXT LOWER GRADE BUT WHO DECLINES OR FAILS TO ACCEPT THE NEW COMMISSION AND WHOSE CONNECTION WITH THE SERVICE IS SEVERED BY REASON THEREOF.

SUFFICIENT HAS BEEN QUOTED FROM THE LAW TO SHOW THAT THE ADJUSTMENT OF NUMBERS IN THE VARIOUS GRADES REQUIRED IS TO BE MADE (1) BY THE ELIMINATION OF A PORTION OF THE SURPLUS OFFICERS IN EACH GRADE; (2) BY CONTINUING A NUMBER OF OFFICERS IN EACH OF THE GRADES FROM COLONEL TO FIRST LIEUTENANT (TO BE DETERMINED AS THEREIN PROVIDED) AS ADDITIONAL UNTIL ABSORBED; AND (3) BY THE DISCHARGE AND RECOMMISSIONING IN THE NEXT LOWER GRADE OF OFFICERS IN GRADES FROM MAJOR TO FIRST LIEUTENANT, THE NUMBER TO BE DETERMINED AS PRESCRIBED BY THE ACT.

IT IS ONLY WITH RESPECT TO OFFICERS OF THE FIRST CLASS--- THOSE TO BE ELIMINATED; THAT IS, COMPLETELY SEPARATED FROM THE ARMY--- THAT PROVISION IS MADE, BUT ONLY ON THE RECOMMENDATION OF THE BOARD OF GENERAL OFFICERS TO THAT EFFECT, FOR THE PAYMENT OF ONE YEAR'S PAY OR RETIREMENT ON THE BASIS FIXED IN THE ACT. THE BOARD OF GENERAL OFFICERS PROVIDED FOR IS SPECIFICALLY REQUIRED TO RECOMMEND THE OFFICERS TO BE ELIMINATED FROM THE ACTIVE LIST, THE NUMBER OF OFFICERS IN THE VARIOUS GRADES TO BE RECOMMISSIONED, AND THE NUMBER OF OFFICERS IN THE VARIOUS GRADES TO BE CONTINUED AS ADDITIONAL UNTIL ABSORBED.

YOUR QUESTION IS, HOW OR BY WHAT METHOD OFFICERS OF THE THIRD CLASS- - THOSE TO BE DISCHARGED AND RECOMMISSIONED IN THE NEXT LOWER GRADE--- CAN RECEIVE THE BENEFIT OF THE PROVISIONS MADE FOR OFFICERS SELECTED FOR ELIMINATION FROM THE ACTIVE LIST SHOULD THEY NOT WISH TO CONTINUE IN THE ARMY IN THE NEXT LOWER GRADE? THE ACT MAKES NO PROVISION FOR THESE OFFICERS OTHER THAN A RECOMMISSION IN THE NEXT LOWER GRADE. IF FOR ANY REASON THEY DECLINE TO ACCEPT THE BENEFIT OF THIS PROVISION MADE IN THEIR BEHALF, THERE IS NO WARRANT FOR ACCORDING THEM THE BENEFITS EXCLUSIVELY PROVIDED FOR ANOTHER AND ENTIRELY DIFFERENT CLASS OF OFFICERS, AND WHICH THESE LATTER OFFICERS ARE ENTITLED TO ONLY WHEN SPECIFICALLY AND INDIVIDUALLY RECOMMENDED THEREFOR.

THE STATUTE REQUIRES THAT A CERTAIN NUMBER OF OFFICERS IN GRADES FROM MAJOR TO FIRST LIEUTENANT SHALL BE DISCHARGED AND RECOMMISSIONED IN THE NEXT LOWER GRADE AND PROVIDES THAT OFFICERS ACCEPTING RECOMMISSION IN THE NEXT LOWER GRADE SHALL HAVE CERTAIN RIGHTS ON THE PROMOTION LIST, ETC. THE STATUTE IS MANDATORY; IT DIRECTS THEIR DISCHARGE AND A PROCEDURE WHICH IN A GIVEN CASE MAY OR MAY NOT EFFECTUATE THE INTENT OF THE STATUTE AND WHICH PLACES THE OFFICER, AT HIS ELECTION, IN ONE OR THE OTHER OF TWO OF THE THREE CLASSES OF OFFICERS WHEN THE LAW REQUIRES THAT HE SHALL BE DEFINITELY CLASSIFIED IN ONE IS NOT A COMPLIANCE WITH THE LAW. WHEN AN OFFICER WHO HAS BEEN SELECTED FOR DISCHARGE AND RECOMMISSION IN THE NEXT LOWER GRADE IS DISCHARGED HE IS SEPARATED FROM THE ARMY; IF HE DECLINES TO ACCEPT THE COMMISSION IN THE LOWER GRADE HIS FAILURE TO CONTINUE IN THE ARMY IS VOLUNTARY, AND NO PROVISION IS MADE FOR THE PAYMENT TO HIM IN ANY CIRCUMSTANCES OF A YEAR'S PAY.

YOU ARE THEREFORE INFORMED THAT THE STATUTE REQUIRES THAT THE FIRST METHOD PROPOSED IN YOUR LETTER MUST BE FOLLOWED, AND THAT IF IN ANY CASE THE OFFICER DECLINES TO ACCEPT THE COMMISSION IN THE NEXT LOWER GRADE NOTICE OF THE DISCHARGE EFFECTUALLY SEPARATES HIM FROM THE ARMY AND HE MAY NOT THEREAFTER BE CLASSIFIED AS SELECTED FOR ELIMINATION; HE WAS NOT IN FACT SO SELECTED AND CLASSIFIED, AND THE STATUTE DOES NOT AUTHORIZE PAYMENT TO HIM OF ONE YEAR'S PAY OR RETIREMENT.