
    ALICE T. CRAVENS, AS WIDOW AND AS EXECUTRIX OF THE ESTATE OF WILLIAM M. CRAVENS, DECEASED, v. THE UNITED STATES
    [No. 49374.
    Decided April 8, 1952]
    
    
      
      The Reporter's statement of the case:
    
      Mr. Burr Tracy Ansell for plaintiff.
    
      Mr. Bruce G. Sundlun,, with, whom was Mr. Assistant Attorney General Holmes Baldridge, for defendant. Mr. R. W. Koskinen was on the brief.
    
      Mr. William E. Day, Trial Commissioner.
    
      
       This opinion has not heretofore been published awaiting final judgment.
    
   Madden, Judge,

delivered the opinion of the court:

Plaintiff in this case is the widow, and executrix of the estate of, William M. Cravens, deceased, who at the time of his death on January 24, 1947, held the grade of colonel in the United States Army, and who was at that time a resident of Garland County, Arkansas. Colonel Cravens had enlisted in the Army on March 22,1915, and had accepted an appointment in the Regular Army on December 2, 1916. He held a commission in the Army from that time until the date of his death.

On June 19, 1946, Colonel Cravens appeared before an Army Retiring Board at Letterman General Hospital, Presidio of San Francisco, California, and was found to have been permanently incapacitated for active service by reason of certain physical incapacities resulting as an incident of service. He thereupon returned to Fort Douglas, Utah, his duty station, on sick leave from Letterman General Hospital, in order to await action upon the Retiring Board Proceedings. He was ordered to return to Letterman on July 16,1946, where on August 2,1946, a biopsy and deep dissection was made for metastatic cancer in the lymph glands of his neck.

Colonel Cravens was granted thirty days’ sick leave, commencing August 10, 1946, by special orders' from the hospital dated, August 8, 1946, and he left to visit friends and relatives at Camp McQuade and Los Angeles, California. On August 22,1946, he returned to the hospital for a checkup ; and on that date the Commanding General at the hospital forwarded to him by indorsement letter orders signed by the Adjutant General, dated August 9, 1946, granting him eighty-three days’ terminal leave effective August 10, 1946, and notifying him that it was contemplated announcing his retirement effective October 31, 1946, upon the completion of his terminal leave, as a result of the War Department’s review of the Retiring Board proceedings.

Colonel Cravens immediately returned to his duty station at Fort Douglas, and on August 29, 1946, by indorsement upon the letter orders, protested to the Adjutant General his contemplated retirement effective October 31, 1946, on the ground that his accrued leave credit, assuming the commencement of terminal leave on August 10, 1946, would not have permitted his retirement before November 30,1946, and he requested that November 30, 1946, be made the effective date of his retirement. By the same indorsement he protested his being charged with terminal leave from August 10 to August 22,1946, while on sick leave.

He was advised by the Adjutant General on September 11, 1946, that although he had an accrued leave credit of ninety-two days, only eighty-three days from August 10, 1946, had been granted “in order to effect his retirement at the end of the month.” The acting Adjutant General by letter dated September 11, 1946, denied Colonel Cravens’ request to be retired effective November 30,1946.

Colonel Cravens left Fort Douglas for his home at Fort Smith, Arkansas, about September 29,1946. While traveling the condition of his neck became worse, and on October 8, 1946, lie was taken to the Army and Navy General Hospital at Hot Springs, Arkansas, where he was admitted as a patient the same day. As a patient in the hospital from that time until December 13,1946, he received continuous and intensive treatment for cancer of the tongue and neck. He returned home over the holidays, and his condition worsened. He was taken back to Army and Navy Hospital on January 21, 1947, in a dying condition, and three days later on January 24,1947, he died of a perforated gastric ulcer and cancer of the neck.

While Colonel Cravens had been a patient at Army and Navy General Hospital on October 25,1946, the United States Army Chief of Staff, by order of the Secretary of War, issued Special Orders No. 230, which announced the retirement of Colonel Cravens effective October 31, 1946, under Section 1251 of the Revised Statutes. After the death of Colonel Cravens, in reply to an inquiry by the plaintiff as to the decedent’s status, the Adjutant General on February 11,1947, stated that the retirement orders could not be amended or revoked, as his retirement had been properly effected as required by law, and retroactive orders were illegal.

Plaintiff’s claim here is based upon the proposition that Colonel Cravens at the time of his death was still on active duty with the Army and had never been legally retired. The orders dated August 9, 1946, placing Colonel Cravens on terminal leave did not purport to retire him, but merely stated that his retirement for physical disability, effective October 31, 1946, was contemplated. The only orders ever purporting by their own terms to retire Colonel Cravens from active duty were those issued on October 25, 1946, Special Orders No. 230, which did announce his retirement effective October 31, 1946. It is the validity and effect of Special Orders No. 230 which must be determined by this court.

Prior to September 1,1946, the War Department’s procedure for administration of terminal leave provided for in AR 605-115, dated November 9, 1945, and change orders to that regulation, was set forth in WD Circular 116, dated April 20,1946. Circular 116 provided generally that where an officer was admitted to an Army hospital while on terminal leave, after receipt of the required notification from the admitting hospital, the officer’s orders were to be rescinded in sof ar as they pertained to the unexpired portion of terminal leave and also as to the date of his separation from active service. There were in Circular 116, however, certain specific exceptions from the operation of that general provision, including an exception in the instance of Regular Army active list officers scheduled for retirement due to physical disability, such as was Colonel Cravens. This exception to Circular 116 provided that such an officer would continue on terminal leave while hospitalized, and his retirement would become effective as previously ordered.

On August 26, 1946, AR 600-115 was issued by the War Department, to become effective on September 1, 1946. AR 600-115 expressly superseded AR 605-115, the basic regulation to which Circular 116 had been issued as a supplement. As did Circular 116, the new regulation, AR 600-115, provided in part that where military personnel were hospitalized while on leave prior to separation from active duty, the fact of admission to an Army hospital would automatically rescind that part of their orders which prescribed a date of separation from active duty. And it had a similar provision with respect to suspension of terminal leave during the period of hospitalization. Unlike Circular 116, however, AR 600-115 omitted the exception noted above which had been contained in Circular 116. Indeed all but one of the specific exceptions contained in Circular 116 were omitted from AR 600-115, and that one, concerning individuals awaiting retirement because of statutory age, is not material here.

It is defendant’s position that Circular 116 rather than AR 600-115 is controlling here, and that because “Circular 116 dealt with a specific class of officers (retired Regular Army officers and Regular Army active list officers scheduled for retirement) whereas AR 600-115 dealt with military personnel in general” the two are not irreconcilable. With this we cannot agree. AR 600-115 embraces Colonel Cravens’ situation just as completely as did Circular 116, and the regulation being subsequent in point of time must be considered to have repealed any conflicting portions of the circular.

Defendant also cites WD Circular 271, dated September 6, 1946, to show that the War Department did not consider that Circular 116 had been repealed by AR 600-115. It is not necessary to hold that Circular 116 had been repealed in its entirety, but only to the extent inconsistent with AR 600-115. We attribute to Circular 271 no effect material to this case. Circular 116 had cited the superseded “AR 605-115” in several places. Circular 271 merely changed those and certain other citations to “AR 600-115,” and in no respect whatever purported to change AR 600-115.

Thus it was an unmodified AR 600-115, so far as this case is concerned, in effect on October 8, 1946, when Colonel Cravens entered the Army and Navy General Hospital at Hot Springs, Arkansas. There. is no question here but that Colonel Cravens was on terminal leave orders at that time. AR 600-115 provides in part:

4. b. Military personnel hospitalised while on lea/ve.
(1) Will be regarded as sick in hospital as of date of entry into hospital.
121 Revert to leave status upon release from hospital.
(3) No deduction in leave period will be made because of hospitalization.
$$$$$$$
15. Military personnel hospitalized or ordered to temporary duty while on leave prior to separation from active duty. a. Provisions of paragraphs 4& and c will apply.
b. In the administration of such cases the fact of admission to an Army hospital will automatically rescind so much of the individual’s orders as prescribed date of separation from active duty.
o. Upon discharge from hospital the individual’s accrued leave will be recomputed considering leave used prior to hospitalization as ordinary leave for computation purposes only.
d. The provisions of this paragraph do not apply to individuals of the Regular Army who are on leave awaiting retirement because of statutory age.

Colonel Cravens answered the description in the heading of paragraph 15. Applying 4 & as 15 a says should be done, Colonel Cravens was (1) to be regarded as sick, i. e., not upon leave, as of the date of his entry into the hospital, (2) was to revert to Ms terminal leave status only upon Ms discharge from the hospital and (3) was to have no deduction made from his leave period because of hospitalization. That meant that he had as much of his terminal leave still coming to him on December 13, when he was discharged as he had had when he entered the hospital on October 8.

Special Orders No. 230, issued on October 25, while Colonel Cravens was in the hospital, and applicable to this officer only, purported to retire Mm as of October 31, 1946. Special Orders No. 230 were in flat contradiction of Army Regulations 600-115,4 b and 15 a and c.

Army Regulations 600-115 was promulgated by the Secretary of War pursuant to an express provision of the Armed Forces Leave Act of 1946, of which Section 3 provides in part:

* * * leave may be taken by a member on a calendar-day basis as vacation or absence from duty with pay, annually as accruing or otherwise, in accordance with regulations to be issued by the several secretaries. Such regulation shall provide equal treatment for officers and enlisted men. [Italics added.]

The Regulation in question, then, had the force of law. We think it could not be set aside by anything other than an amendment, of general application. We tMnk it was not the intent of Congress, in so authorizing the Secretaries of the Armed Services to make law, to lodge in them the power to depart from the law which they made, in individual cases. In recent decades Congress has, of necessity, delegated to admiMstrative officers the power to fill in the details of legislation by regulations. It has taken care that these laws, made by delegated authority, be published and thus brought within the notice of those who are affected by them. It is not consistent with tMs policy, nor any policy of government by law, that an administrator should have the reserved power to follow the law he has made, or depart from it, at his discretion. It has been so decided in Germania Iron Co. v. James, 89 F. 811 (CCA 8) ; Sheridan-Wyoming Coal Co. v. Krug, 172 F. 2d 282,287 (CADC), reversed on other grounds, 338 U. S. 621; American Broadcasting Co. v. Federal Communications Commission, 179 F. 2d 437, 443 (CADC). In Professor Walter Gellhorn’s Cases and Comments on Administrative Law, 1947 Ed. pp. 442 if., under the heading “Nonobservance by an Agency of its Own Regulation” are collected cases in which the courts have disapproved the departure by an executive agency from its procedural regulations.

We consider, of course, R. S. Sections 1245 and 1251 providing that incapacitated officers should be retired. But we think that the provisions of the Armed Forces Leave Act of 1946, authorizing the Regulations here in question, must have contemplated that a uniform and humane system be devised for carrying out the provisions of Sections 1245 and 1251, and that they did not contemplate that one officer be separated by special orders shortly after he was hospitalized, while other officers remained subject to the Regulations, and received their hospitalization and also their unused leave, with active duty pay. What the Secretary did on November 8, 1946, was the lawful and orderly way to correct a mistake if he concluded that the former regulations were too generous. On that date he amended paragraph 15d of Army Regulations 600-115 to cover situations such as that of Colonel Cravens. Under that amendment, terminal leave time did not stop running because of hospitalization of officers on leave awaiting retirement for physical disability. This regulation was general, and applicable to all officers so situated. If, then, the Secretary had issued a new order for Colonel Cravens’ retirement, consistent with the amended regulation, such an order would have been effective. But his Special Orders No. 230 were ineffective because they violated the Army Regulations. Colonel Cravens was therefore still in an active status at the time of his death, and the plaintiff, as his widow and executrix, for the benefit of herself as widow and executrix, and for the benefit of surviving children, if any, of Colonel Cravens, is entitled to recover.

Entry of judgment will be suspended to await the filing of a stipulation by the parties showing the amount of the judgment, and the person or persons to whom it should be payable.

It is so ordered.

Howell, Judge, and Whitaker, Judge, concur.

Jones, Chief Judge,

dissenting:

The plaintiff on motion for new trial earnestly insists that the court erred in holding that the orders, dated October 25, 1946, announcing Colonel Cravens’ retirement effective October 31, 1946, were valid and effective. The chief basis for this position is the claim that this order of retirement was ineffective due to the wording of a previous regulation.

The order for retirement was issued pursuant to R. S. § 1245 and R. S. § 1251, which are as follows:

Sec. 1245. Retirement wholly from service or from active service only. — When any officer has become incapable of performing the duties of his office, he shall be either retired from active service, or wholly retired from the service, by the President, as hereinafter provided.
Sec. 1251. Disability found by retiring board to be incident of service. — 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, said officer shall be retired from active service and placed on the list of retired officers.

It will be noted that the provisions of R. S. § 1251 are clear, concise and mandatory. Regulation 600-115 and WD Circular 116 were to some degree in conflict, but however they may be construed, they could not serve to take away from the Secretary of War the authority which he had, and in his discretion saw fit to exercise, to follow the plain provisions of the quoted sections of the Revised Statutes.

All legislative authority is lodged in the Congress. Any regulation must be within the framework of the authorizing statute. Insofar as it goes beyond it is ineffective. Certainly no regulation can serve to repeal or modify a specific act of Congress.

If we were to hold that the regulation prevailed over the authority granted by R. S. § 1251, then so long as the officer remained in the hospital even though it might be a period of years, the department could not retire him under the regulation, even though completely disabled. Suppose for example he remained in the hospital for ten years, the only way such a retirement could be effected would be to repeal or modify the regulation, or to remove the disabled officer from the hospital. I am unable to so construe the law, or to accept the doctrine that by issuing a mere regulation the Secretary can circumscribe or abdicate the power and authority conferred upon him by an act of Congress. Nor do I believe that the possibility that he may later amend that regulation justifies the holding that the regulation in the first instance was fully effective.

I agree thoroughly that regulations authorized by a statute, and reasonably within its framework, have all the force and effect of law. But to the extent that such a regulation seeks to go beyond and supersede a statutory provision it is ineffective.

The plaintiff further claims that the action in retiring Colonel Cravens was discriminatory in that it singled him out and was therefore not a uniform application of procedure in these matters. The fact remains, however, that the provisions and authority of the statute applied not only to Colonel Cravens, but to any other officer of the Army when the findings of the board were made. The Secretary of War could take the same action in reference to any officer when the findings justified it. Any order of retirement applies only to the person affected and is therefore a special order applying to the single officer, but is taken under the general authority conferred by statute. Any time any officer is retired whether under a statute, or under a regulation issued pursuant to a statute, it is by special order applicable to that officer and to no one else.

It appears from the facts of this case that the effective date of the order of retirement might well have been deferred, but this was a matter that was within the discretion of the authorities who were acting pursuant to the provisions of the Bevised Statutes. It is not within our province to substitute our judgment for that of the officers who made the decision. I feel that we have no basis for holding that their action was an abuse of discretion.

This view of the case gives full effect to Section 4 b of AB 600-115. Section 4 b was of general application to “military personnel hospitalized while on leave” while Section 15 of AB 600-115 was of specific application only to those on leave “prior to separation from active duty.” The purpose of Section. 4 b was to make certain that a military patient would not suffer loss of leave credit for his period of hospitalization.

In our opinion dated February 5, 1952, this day vacated, no deduction was made in leave credit due Colonel Cravens at the time of his retirement on October 31,1946, for the period of his hospitalization beginning October 8,1946. From that date to October 31,1946, his status was that of “sick in hospital” — not a leave status. The provision of Section 4 b (2) that a patient was to revert to leave status upon release from the hospital is clearly and necessarily applicable only to those persons who have not been discharged or retired previously. Surely Section 4 b (2) cannot be made the source of a requirement that no such discharge or retirement could be effected prior to release from the hospital.

Thus the purpose of Section 4 b has been fully served.

The authorities cited are inapplicable to the facts of this case.

Section 1251 of the Bevised Statutes directs that when the decision of a retiring board has been approved by the President the officer concerned “shall be retired from active service and placed on the list of retired officers.” That statute was in no way modified or repealed by the Leave Act of 1946, nor did the Leave Act of 1946 in any way modify or repeal the affirmative statutory duty and authority conferred by Section 1251 of the Bevised Statutes.

The Leave Act of 1946, Section 3, does provide for the issuance of certain regulations for the administration of leave under that act. It is axiomatic that such regulations must be within the framework of that act, reasonable in scope, and must not in any way contravene any statutory enactment, including Section 1251 of the Bevised Statutes. It is immaterial in determining the validity of AB 600-115 that it later may have been and was in fact amended. The possibility that an amendment to an unconstitutional statute will make it constitutional will not make the unamended statute valid in the first instance, and so also with regulations.

Such a purported suspension of the clear and unequivocal statutory authority of B. S. § 1251, if effective, would also have been in direct and complete disregard of the equally clear and unequivocal duty, mandatory under the statute, to effect the retirement of men such as Colonel Cravens once the board has made its findings and they have been approved by the President. I must conclude, therefore, that to the extent that AE 600-115 purported indefinitely to suspend the statutory authority and to prevent the performance of the statutory duty to retire Colonel Cravens under E. S. § 1251, the regulation AE 600-115 was ineffective. Colonel Cravens was therefore legally retired under the authority of E. S. § 1251, effective October 31,1946. For these reasons I would overrule plaintiff’s motion for a new trial.

I am authorized to state that Judge Littleton joins with me in the foregoing dissent.  