840 Findings of Fact Subject letter indicates that I have had no prior service though assigning a serial number held by me for twenty-five years. To accept this new appointment would leave my status most ambiguous and with many possible interpretations thereof. Therefore, in compliance with instructions contained on reverse of "Oath of Office" form, the appointment above referred to is herewith declined, and you will please note the fact of non appectance [sic]. Since appointment letter and Par 20 SO 238 are evidently in conflict, it is desired to retain the letter as evidence of that fact. 57. Under the date of December 7, 1945, the Adjutant General of the Army replied to the plaintiff's letter of October 23, 1945 by stating in part as follows: 2. Your entry on active duty 8 October 1945 pursuant to paragraph 20, Special Orders 238, War Department, 1945, was a constructive acceptance of the appointment as Major, Air Corps Reserve, tendered you on 4 October 1945. Since your former commission had terminated, you could not have been placed on active duty as an officer except under the new appointment. If you will return the appointment letter to this office, your prior service will be entered in the space provided therefor. 3. If you do not desire to continue in your status as Major, Air Corps Reserve, you may submit your resignation by letter, stating your reasons and it will be given consideration. 58. Under the date of December 24, 1945, the plaintiff wrote the following letter to the Adjutant General of the Army: Letter of 7 December 1945 * * * was fowarded [sic] to me from my home in Auburndale, Florida. The conclusion reached in Par. 2 thereof as to constructive acceptance of appointment "tendered on 4 October 1945” is based on inaccurate statement of fact. Tender of appointment was made October 23rd, 1945 "as of" 4 October 1945. On that day appointment was declined and fact of non acceptance indicated as provided in instructions incident thereto. Resignation therefore is not only unnecessary but undesirable. 554378-61- -58 Findings of Fact 144 C. Cls. In view of the discrepancy indicated, it will be appreciated if the fact of non-acceptance be acknowledged and records of your office so corrected. 59. Under the date of 30 March 1946, the Adjutant General of the Army wrote to the plaintiff as follows: Reference is made to your recent letter. An attempt has been made by the War Department to reestablish your commissioned status in order that you could be separated from the service under honorable conditions. For that reason, you were appointed a major in the Air Corps Reserve on the fourth of October, 1945 and ordered to duty effective 8 October 1945 in order that you could serve for a short period and then be relieved, thereby establishing your status as an officer who has served during this war and was relieved from duty under honorable conditions. It was believed at that time that you would be glad to avail yourself of this opportunity. If you care to accept this appointment in order to reestablish your status, you may do so by accomplishing the inclosed oath of office. If, however, you do not desire this appointment, it is requested that you return your appointment letter dated 4 October 1945 to this office and the case will be considered closed. 60. Under the date of April 25, 1946, the plaintiff wrote the following letter to the Adjutant General of the Army: Reference is made herewith to yours of 30 March 1946, which is acknowledged, and its reference is AGPR-D 201 Denton, Marion Gray (30 mar 46). I am unable to understand how it is possible to "reestablish" my status, by the acceptance of another commission. Previously I have stated that to accept such an appointment would only confuse my status, and since my previous decision was considered after due deliberation, I see no reason to change it at this time. 61. (a) Under the date of May 20, 1946, the Adjutant General of the Army addressed the following communication to the plaintiff: 1. Reference is made to your recent appointment in the Officers' Reserve Corps, Army of the United States. 2. Since no record is found of receipt of acceptance of the appointment tendered, it is requested that the attached oath of office be executed in accordance with in 840 Findings of Fact structions on the reverse side thereof and returned to this office. Inclosed is a franked envelope for your convenience. 3. In the event an oath of office is not received in this office within 30 days from date of this letter, your appointment in the Officers' Reserve Corps will be cancelled. (b) Under the date of September 4, 1946, the Adjutant General of the Army addressed to the plaintiff a communication that was identical with the communication set out in paragraph (a) of this finding. 62. In a communication dated September 13, 1946, the Adjutant General of the Army notified the plaintiff "By order of the Secretary of War" that: So much of par 20 SO 238 WD 1945, as orders you to active duty, is hereby revoked. 63. In a communication dated September 16, 1946, the plaintiff was informed by the Adjutant General of the Army "By order of the Secretary of War" that: Your declination of the appointment as Major, Air Corps Reserve, tendered to you on 4 October 1945, has been recorded as of 25 April 1946. 64. A communication dated November 26, 1946 from the Adjutant General of the Army to the plaintiff amended the previous communication of September 16, 1946 so as "to show declination of the appointment as Major, Air Corps Reserve, tendered you on 4 October 1945 has been recorded as of 23 October 1945." 65. On May 29, 1952, the plaintiff petitioned the Judge Advocate General of the Air Force for a new trial under Section 12 of the Act of May 5, 1950 (64 Stat. 107, 147), seeking thereby to have the sentence of the general courtmartial against him vacated. After a hearing held on July 15, 1952 before a board of officers constituted by the Judge Advocate General of the Air Force, the Judge Advocate General denied the plaintiff's petition on September 12, 1952. 66. Sometime between September 24, 1953 and October 7, 1953, the plaintiff made application to the Department of the Air Force for the correction of his military record respecting his conviction by a general court-martial. In Conclusion of Law 144 C. Cls. a registered letter dated May 12, 1954, the Executive Secretary of the Air Force Board for the Correction of Military Records advised the plaintiff, by direction of the Chairman of the Board, that a sufficient basis for a hearing of his case had not been established and, therefore, that his application was denied. 67. The evidence does not show the amount of the plaintiff's earnings subsequent to his dismissal from the Army on August 19, 1944. CONCLUSION OF LAW 1 Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and his petition is therefore dismissed. 1 This pertains to Case No. 49800 only. ORDERS NOVEMBER 1, 1958, TO JANUARY 31, 1959 NOVEMBER 5, 1958 No. 49468. Central Eureka Mining Company (A Corpora No. 49693. No. 50182. No. 50195. No. 50214. tion). Alaska-Pacific Consolidated Mining Company. Bald Mountain Mining Company (1) and Er- Eminent domain; closing of gold mines under War Production Order L-208. Plaintiffs entitled to recover. Opinion 134 C. Cls. 1, 130; reversed by the Supreme Court, 357 U.S. 155. In these cases the following order was entered: ORDER These cases come before the court on remand, filed July 21, 1958, from the Supreme Court wherein the Court ordered the reversal of the judgment of this court, and remanded these cases to this court for further proceedings in conformity with its opinion of June 16, 1958 in these cases. IT IS THEREFORE ORDERED this fifth day of November, 1958, in conformity with said opinion by the Supreme Court, that the judgments entered for the plaintiffs in these cases on February 20, 1956, pursuant to this court's opinion and findings of fact of that date, be and the same are vacated and withdrawn, and IT IS FURTHER ORDERED that plaintiffs' petitions be and the same are dismissed. BY THE COURT. MARVIN JONES, 891 |