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It is evident that the basic law considered above operates to enable certain officers of the naval service to act as notaries public rather than to preclude notaries public or other duly authorized persons from administering oaths for purposes of naval administration.
Based on the foregoing, it was the opinion of the Judge Advocate General that under existing law no additional statutory authority is necessary to permit notaries public or other persons duly authorized to administer oaths to administer the oath of enlistment to applicants for enlistment in the Marine Corps Reserve in cases where recruiting officers are not available.
In accordance with all of the above, and upon examination of the letter from the Marine Corps in its entirety, no legal objection was perceived to the proposals contained therein. (File: JAG:II: DMW: ad, 14 Jan. 1948.) Appeal to the Judge Advocate General of a determination by the Board of Decora
tions and Medals approved by the Secretary of the Navy. A retired officer, USN, requested the opinion of the Judge Advocate General on the following questions:
(a) Does an appeal lie to the Judge Advocate General via official correspondence from a decision in the case of an officer whose eligibility for advancement to the rank of the next higher grade on the retired list pursuant to the provisions of section 12 of the act of June 23, 1938 (52 Stat. 949, as amended by the act of October 14, 1940, 54 Stat. 1174; 34 U. S. C. 404 (1)), has been denied by the Board of Decorations and Medals with the approval of the Secretary of the Navy?
(6) Is a retired officer of the Regular Navy eligible to become a member of the Florida National Guard Reserve?
(c) If allowed, would this service count for longevity? The provisions of the act of June 23, 1938, above referred to have been amended and superseded by the provisions of section 412a of the Officer Personnel Act of 1947 (61 Stat. 874, approved August 7, 1947). However, the situation would be the same under either act. The Judge Advocate General has repeatedly held that the final determination of the question of eligibility in all such cases rests with the Board, subject only to the action of the Secretary of the Navy and that no appeal lies to the Judge Advocate General.
As the National Guard Reserve was discontinued by the act of June 15, 1933 (48 Stat. 159; 32 U. S. C. 114), the inquiry in that regard will be considered as relating to the Florida National Guard. Section 74 of the National Defense Act of 1916 (39 Stat. 201, as amended by sec. 41 of the act of June 4, 1920, 41 Stat. 781; 32 U. S. C. 111) provides that the commissioned officers of the National Guard
shall be selected from the following classes: "Officers or enlisted men of the National Guard; officers, active or retired, reserve officers and former officers of the Army, Navy, or Marine Corps, enlisted men and former enlisted men of the Army, Navy, or Marine Corps who have received an honorable discharge therefrom *
The question as to whether a retired officer of the Regular Navy may become a member of the National Guard was considered by the Judge Advocate General in his opinion of 20 May 1947 (JAG:II: WJG:mh, 00-Randolph S. A./L16-4 (21)). In that case it was held that in the absence of any statutory prohibition against retired officers of the Regular Navy joining the National Guard (no such provision existing at this time), the question of whether such officer should be permitted to join the National Guard of a State is considered one of policy for administrative determination,
The Military Appropriation Act of 1948, approved July 30, 1947 (61 Stat. 551), prohibits the use of the appropriations therein made for the pay, allowances, or traveling or other expenses of any officer of the National Guard who may be drawing a pension, disability allowance, disability compensation, or retired pay (where retirement has been made on account of physical disability or age) from the Government of the United States. In the event that a retired officer of the Regular Navy who has been retired for physical disability or age is permitted administratively to join the National Guard of a State he would be prohibited from receiving pay, allowances, or traveling or other expenses as an officer of the National Guard.
Should it be administratively determined that a retired officer of the Regular Navy, who has not been retired for physical disability or age, may join the National Guard of a State and he does so, he may continue to receive his retired pay, except for such periods as he may be employed on active duty in the Federal service under a National Guard Commission and entitled to active duty pay and allowances.
Where a retired officer of the Regular Navy, who has not been retired for physical disability or age, is commissioned in the National Guard of a State, and called to active duty in time of war both as a retired naval officer and as an officer of the National Guard, the question as to which set of orders he must obey is a matter for administrative determination.
As to whether this service, if allowed, would count for longevity, section 1 of the act of June 16, 1942 (56 Stat. 359, as amended; 37 U. S. C. 101) provides that in computing the service for all pay purposes, officers shall be credited with full time for all periods during which they have held commissions as officers of the Army, Navy, etc., or in the National Guard. As to counting such service as longevity for the purpose of computing retired pay, section 15 of the act of
June 16, 1942 (56 Stat. 367, as amended by section 1 of the act October 18, 1943, 57 Stat. 571; 37 U. S. C. 115), provides that on a after 1 June 1942, retired officers of the Navy shall have their retir pay computed as now authorized by law on the basis of pay provid therein, which pay shall include increases “for all active duty pe formed since retirement
in the computation of their longe ity pay and pay periods.” (File: JAG: II: LCM: mg, 21 Jan. 1948.) Checkage of pay where allotment erroneously paid officer's wife without
knowledge. In January 1941, Lt. Col. (then 2d lieutenant) A registered : allotment, designated as for support of a dependent, period indefinit first payment February 1941, amount $165 monthly, in favor of t1 Security Trust & Savings Bank, San Diego, Calif.
On 13 January 1944, Lt. Col. (then major) A requested stoppag of the said allotment. The disbursing officer carrying Lt. Col. A pay account forwarded the allotment stop notice to Marine Cori Headquarters, where it was filed in Lt. Col. A's individual file jacke instead of being handled in the Marine Corps allotment office in a cordance with normal procedure. No action was taken towar| stopping the payment of the allotment and payments of $165 monthl to the designated allottee continued to be made up to and including th month of April 1947. Appropriate entry of the allotment stoppage wa made on Lt. Col. A's pay record, and after the date when the stoppag should have become effective, amounts credited to him on his pa account by the various disbursing officers carrying that account wer increased by $165 monthly, thus giving ostensible indication that the aforesaid request for stoppage had been placed in actual effect.
It appeared further that on the same date that Lt. Col. A requested stoppage of the allotment, to wit: 13 January 1944, he registered ? new allotment designated as for savings, in the amount of $150 monthly first payment February 1944, period indefinite, in favor of the same bank. This allotment was handled in a routine manner, without untoward incident, did not influence subsequent developments, and need not be the subject of further consideration.
As a result of auditing procedures at Marine Corps Headquarters, it was discovered that the allotment stoppage executed by Lt. Col. A had not been placed in effect. This was accordingly done, the last payment being made in April 1947. The period from the date of intended effect of the request for stoppage to the date of actual stoppage comprised a total of 39 months, for each of which the sum of $165 had been paid to the bank aforesaid, or a total thus paid of $6,435.
Marine Corps Headquarters then initiated action with a view to checkage of Lt. Col. A's pay account in the amount of $6,435. At the same time, Lt. Col. A was requested to make a statement as to whether
he had been aware of the fact that the allotment had continued to be paid during the 39-month period aforesaid.
In response to that request, Lt. Col. A, in a letter dated 3 July 1947 to the Chief, Disbursing Branch, Supply Department, Marine Corps Headquarters, made his statement in the following words:
1. During January or February 1941, I established a joint checking account in the Security Trust & Savings Bank, San Diego, Calif. for my wife and myself and made out a monthly allotment to that account for $165. I used the account myself in February to settle outstanding bills just prior to leaving for Samoa with the Seventh Defense Battalion and at various times until my return to the United States in April 1943. I was with my wife for a short time in May 1943, at which time we agreed to a divorce after the war. At that time I also informed my wife that I would not use the checking account in San Diego. I never used the account subsequently and all bank statements were thereafter mailed to her address.
2. About January 1944, while serving with the Fifth Amphibious Corps in Pearl Harbor, I executed a stoppage of the $165 allotment and made out a new one for $150 a month to the same account.
3. Upon returning to the United States in July 1946 I initiated correspondence which resulted in my wife and me signing a separation agreement. She obtained a lawyer about December 1946, in order to institute divorce proceedings. I have recently been informed by this lawyer that the suit has been filed and will be final in the near future.
4. Upon being notified of the contents of the reference of this letter, I telephoned the Security Trust & Savings Bank in San Diego. They verified the information contained in the reference and further stated that the account is at present overdrawn $27.98. I then telephoned my wife and informed her of the situation concerning the checkage of my pay account. She stated that she had informed me by letter about February or March 1944, of the two deposits being made monthly in the account. No letter containing such information was ever received by me. She also stated that she does not have funds to repay this overpayment.
5. At no time after I requested stoppage of the $165 allotment and made out the new allotment for $150 did I have any knowledge
or suspicion that the $165 allotment was still being paid. Lt. Col. A was then requested to sign a consent to checkage of his pay account in the amount of $6,435, and, by letter dated 29 July 1947, addressed to the Chief, Disbursing Branch, Supply Department, Marine Corps Headquarters, he declined to do so in the following words:
1. The undersigned respectfully declines to acknowledge responsibility for the short-checkage referred to in reference (a) because of the circumstances as stated in reference (b) (Lt. Col. A's letter of 3 July 1947), and for the following reasons:
(a) Proper steps were taken to stop the allotment, and the request for stoppage was received at Marine Corps Headquarters.
(6) The undersigned believed that the stoppage had been effected since checkage was not made on his pay account and no information to the contrary was received.
(c) The undersigned did not use the checking account in any respect during the entire period involved and consequently had no correspondance [sic] with the bank during that period. It is believed that this procedure was entirely reasonable since the undersigned was overseas when the stoppage was entered and did not return to the United States until approximately 242 years later.
(d) The undersigned did not, and will not, benefit in any way from the over payment as other and adequate arrangements were made for the support of his wife from his service pay. These arrangements were in no way affected by the over payment.
(e) The undersigned is unable to recover the six thousand four hundred thirty five dollars ($6,435) in order to repay this
over payment. The Commandant of the Marine Corps has now submitted the matter for decision was to whether checkage of the amount involved should be directed against the pay account of Lt. Col. A."
It may be said at the outset that Lt. Col. A's averments of fact as set forth above, appear to be consistent with all other known facts, are not controverted in any way by anything in the record, and have been accorded full credence by all persons officially connected with the
For the purposes of this discussion, they will be accepted as true.
On the case stated, the relative rights of the United States and Lt. Col. A should be evaluated as though a court were hearing a case in which the United States had brought suit against Lt. Col. A for the recovery of $6,433 paid to his bank account without warrant of law.
The action of the United States in the case would be for the recovery of money paid under a mistake, namely, the erroneous assumption that the allotment previously executed by Lt. Col. A continued in