De Facto Military Status: Types, Elements, and Benefits

• Author: By Major Boyd W. Allen, Jr.
• Pages: 01

The purpose of this article is to present a study of de jacto military status-oficer and enlisted. Special emphasis isoeewded to an analusis of the elements end benefits oj suoh statug and oonsideration is given to special problems such as de facto retired statu. The author ab0 examines the meaning and effect oj Comptroller General decisions limiting de facto status because of "statutory prohibitions" and serv-ice "prohibited bg law."

Many readers will probably react to the title of this article in one of two way8: "De what???" or "So what!!!" Certainly the topic is not one of the most widely discussed issues of the day, and at first glance its significance might seem remote.

Konetheiess, the subject is of vital importance to many officers and enlisted men who each year suddenly discover that they are not legally entitled to their commission or grade. Such B person's chances to retain his pay and allowances, preaerve his longevity and retirement credits, maintain his time in uade, and save other benefits incident to his service, may well depend upon whether or not he can qualify as a de facto officer or enlisted man. Moreover, the attorney who ventures into the tangled web of Comptroller General opinions, Court of Claims decisions, and opinions of The Judge Advocate General-the three major sources of the law on de facto status-is likely to discover that there are a great many uncertainties and apparent contradictions in this area of the law. Far these reasons, the subject is greatly in need of examination.

The objectives of this article are: (a) to identify and analyze the elements of de facto officer status and de facto enlisted status;

'This SItiCle was adapted from a thesis presented to The Judge Advocate General's School, U.S. Army, Chaibttesville, Virginia, while the author was B member of the Fifteenth Advanced Course. The opinions and eonelusions Presented herein are those of the author and do not necessarily represent the views of The Judge Advoeak General's Sehoal OT any other Eovemmental

1. INTRODUCTION

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   ton, D. C.: B.S., 1958, LL.B., 1869, University of Illinois; admitted to practice before the bars of the State of Illinois, the United Stater Court of Military Appeals, and the United States Supreme Court.

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   (b) to discuss the benefits of de facto status; (c) to examine the extent to which de facto principles may be applied to retired members of the armed iarces; and (d) to determine the meaning and effect of certain Comptroller General decisions limiting de facto atatus because of "statutory prohibitions" and service "prohibited by l a d '

   During the course of this article, opinions of the Comptroller General concerning de facta status of civilian employees of the Federal Government will be considered from time to time. In peneral, these opinions will be mentioned only when they directly affect military personnel (e.y., retired member of the armed iorces employed by the Government in a civilian position), or when they state principles which the Comptroller General might apply to members of the military services in the future Refer-ences to such opinion8 are not intended to constitute B definitive coverage of de facta civilian employee status, since de facto civilian employee status 8s such is outside the scope of this article.

   11. BACKGROUND

   Before proceeding further, some basic definitions might be helpful: A de jure officer is a person who is regularly and lawfull>- elected or appointed to office and exercises the duties thereof as hie right: A de facto officer is "one whose title is not good in law, but who is in fact in the unobstructed possesaion of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the ap-pearance of being an intruder or usurper."' Put more succinctly. a de facto officer is one who is such in fact, but not in law.3

   The above definitiow.' standing alone, contribute err little

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5. Staton, 73 N.C. 546, 560 (18%).

   'Wdte 7. Santa Crur, 184 LS. 302, 323 (1902).'State V. Boykin, 114 Miss. 527, 75 So 378 (1911).'At this point, ~t should be noted that these definitions were developed bye o ~ m concerned with the atatur of civil officers rather than rnhtary officers. In molt a i these eases, the court as.% eoneerned Pith the rights of third parties who dealt aith the de facta officer believing him TO be B de lure officer, and va1 not concerned with the rights of the de facto officer to the benefits of the office. S t a l Y. Carroll. 38 Conn 449 (1871). vas such a esse and still 1s cited today as B leadmg ~ a i e whth reference to de iacla civil offleers On the other hand, the pnneiples governing de facto status of military officers have evolved from a separate line a i eases I" vhich the iiruei involved the righk af the de facto officer rather than the rights of third parties. Thin article is concerned mieig with this latter h e of cases.

   Therefore, except for the genmal definitions whleh they provide, cases such as Canoil me outside the xope of rhm artde. In thn regard, the above-2 A m Y l i B

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   DE FACTO MILITARY STATUS

   to an understanding of de facto military status. However, they at least serve to illustrate the point that de facto principles became material only when some legal defect prevents de jure status. In the military services such a defect can arise in many way% e.g.. invalid initial appointment, erroneous promotion, expiration of commission, retention beyond effective date of retirement, to name but a f e x Indeed, the complexities of military personnel law provide such a fertile field for the development of impediments to de jure status, that one can scarcely contemplate all of the situations where de facta principles will become relevant. Of course, the mere absence of de jure status does not mean that the individual involved will automatically qualify a8 a de facta officer

   or enlisted man, as the case may be. As shall be seen in the next chapter, de facta statu exist% only when certain well established elements are present.

   111. THE DE FACTO MILITARY OFFICER

   A, ELEME.VTS OF DE FACTO OFFICER STATUSAny consideration of de facto officer status must begin with United States v. a 1925 Supreme Court decision consistently cited as the leading ease an the matter. Royer vas a first lieutenant in the US. Army Medical Carps serving with the American forces in France during World War I. In August 1918, General Pershing forwarded to Washington a reeommendation that Lieutenant Royer be promoted to the grade of major. However, the Surgeon General recommended promotion only to captain, and the Secretary of War approved Royer's promotion to the latter grade. Through error, the Adjutant General cabled General Pershing that Royer had been promoted to major. The Surgeon General's office in France notified Royer of his "promotion" to the grade of major, whereupon he submitted a letter of acceptance and executed the oath of office on October 18, 1918. Thereafter, he performed duties as a major and received the pay and allowances of that grade. The error was not discovered until, in the ordinary course of events, Royer received a valid promotion

   quoted definition of a. de facto officer from Waite Y. Santa Crus, note 2 aupra, a case involving the rights of third partien dealing mth a de facto civil officer (magar), was swlied by the Sumeme Court in United States Y.

   Royer, 263 U.S. 594 (19253, the militam officers. Also, although officeis. manv of the mintides

   leading esse concerning de facta rtatw of these definitions technically apply only to of de facto officer atatus are s ~ ~ l i e d

   "by

   anaioa" to &listed mekber;. 39 COW. GEN.

   742 (1960)'268 U.S. 394 (19213.ico imee 5

   39 MILITARY L A B RETIEFT

   to major on February 17. 1919. On February 19, 1919. he WE informed that the firat appointment to malor 5\88 a mistake Kothing further was done until his discharge on August 31, 1919, when the Government deducted from his pay the difference be-tween the pay of a captain and that of a major for the periqd October 18, 1918 (date of erroneou~ promotion to major) through February 16. 1919 (da?- prior to date of valid promotion to major) Ro:er then brought suit in the Court of Claims to re-cover the s u a dedwted from his pay. and was .ovarded jiidgment bv that court The Government ilppea!ed to the Supieme Court. which affirmed the decirian of the Court of Claims. itatnip

   Based ~ p o r the principles stated in the Roiirr case, admmistrs- :ire officials hale consistently held that the fol!owing elements are

   necessary to establish de facto officer status:' (1) the office ac- the duties of the office.

   Each of the abaw elements uill nom be considered Individually. in m effort io gain a better underetanding of their exact meaning.

   1 0,fiee .letidu Exists.

   It is w l l settled that "there can be no officer-either de iwre or de iaeto--lf there be no office to fill, the indispensable basis far a de iaeto officer being a de office."" In the Roy, case, the Government contended that Royer was not a de facto officer be-cause there vas no proof that there iraa a vacancy in the office of major. The Supreme Court replied:

   Of murm ihere "an be no meumbert de farto c i an o'ee I f there II no

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   'Royer \-. United Stater. 59 Cr C1 159 119241-268 LS 394, 397 (1925) Since the Army had apparently coneedeo [!at Rayer WBI 81 least entitled to the grade of capbin dwing the perm 10 westion I18 October 1918-16 Februarx 1919). the court was not ca:led upon to decide whether Royer wen a de jure captain during thir time This might have paaed an interestin= ~ueirion.since It does no: ~ppearthat Royer

   was eyer aetvailg tendered sn appointment to captain. nor that he ever

   accepted such an appointment.

   .See JAGA 1966!424b. 30 Aug 1966: JAGA 1960 5048 i Dec 1950: 27 COIIP. GEN.

   730 (1948) Str e l ~ o

   Army Reg No 624-100. para 3d I29 Jul 1966). which...