DocketNumber: V-1156
Judges: Price Daniel
Filed Date: 7/2/1951
Status: Precedential
Modified Date: 2/18/2017
March 12, 1951. ' Hon. J. A. Phillips,,Chairman Texas State Board of Public Accountancy Austin, Texab opiai~oaRio.v-1156.,, Re: Eligibility of a member of the Naval Reserve on inactive duty status for a public account- ant's permit under pro- visions extending the time for appllcatlons of members of the armed forces for a year after Dear Mr:Phlll.%~ps: honorable discharge. Your 1,etterof January 22, 1951, reads a8 fol- lows: "Section 11 (c) of the Public Account? ancy Act of 1945, State of Texas, provides: "'In the case of any person serving in the armed,forces of the United States or anr of the United Nations on thk effective date- of this Act, the Board shall extend the time for compliaice prescribed by any provlslons of this Act, for a ,perlodof twelve months from the time such per,sonla honorably dla- charged from spch service.', "It appears tha$,:Mr.Ray Harks of George West, Texas, was serving in our armed forces on the effective date of the 1945 act. I am enclosing two letters Prom Mr. Harris, together with certified copies of two documents, and am here requesting that your office give us an opinion In re- spect of whether an application could now be tlmely filed by Mr. Harris. "It appears that Mr. Harris Is In the U.S. navy Reserve and that he has not tech- 'nlcallg received an honorable discharge." ‘. . 254 Hon. J. A. Phillips, Page 2, (v-1156) The documents referred to In your letter ap- pear to certify that Mr. Harris was on active duty with the United States Navy In World War II from July 31, 1944, to April 24, 1946, at the end of which time he was released from active duty. They contain an endorsement lndlcatlng that such service and separa- tion therefrom were honorable. Mr. Harris contends that he has never been "discharged" but was merely released to Inactive duty in the U.S. Ravg Reserve and Is entitled to make an application for a public accountant's license at this time under the provisions of Section 11 (c) of the Public Accountancy Act of 1945, Article 41a, V.C.S. Your letter did not state whether Mr. Harris possessed the necessary quallflcatlone at the time he entered the service, but, for the purpose of this opinion, we assume that he did. Your Inquiry may be answered by determining the Intent of the Legislature when It authorized the Texas State Board of Public Accountancy to extend the time for compliance with the provisions of the Act for a period of twelve months after members of the armed forces are discharged. The purpose of this sec- tion of the Act was to relieve persons "serving In the armed forces" from the necessity of making an appllca- tlon while "serving" and for twelve months thereafter. Such persons' actlvitles were disrupted In moat in- stances by their military service, and It was lncon- venient, If not lmposalble, for them to comply with the provisions of the Act. Once the "service' had ended and a reasonable time thereafter had elapsed, the reason for the extension of'time ceased to exist. The term nhonorable discharge" sometimes re- fers to the act of the proper military authorities In completely releasing personnel from membership in the armed services and authoritatively certifying that the service was honorable. See In re FOng Chew Chun149 P.2d 904
(C.C.A. 9th 1945). The term, when used&in that sense, has a technical significance and places persons "honorably discharged" In a technical status of completely severed membershlp. As thus used, mili- tary personnel whose membership has not been terml- nated have not been "honorably discharged." Thls would apply to those who were released from active duty but who have retained their status as members of reserve forces. Hon. J. A. Phillips, Page 3,. (v&1156) 25s However, as we Interpret the purpose of this Act, the Leglslature'dld not ~necessarllyuse the term "honorably discharged" In such a technical sense. We construe this term as describing the termination of the "service" referred to, whether It be a final termination of membership or only such a termination as released the Individual to normal civilian pursuits. The only adjudicated case which we have found nn the subject supports our conclusion. In Dlerkee v. City of LO&AngeleS, 156 P.,2d 741 (Cal. Sup. 1945) th Court determined uhf?ther time:served In the armed !'orc& could be credited to a policeman to qualify him for re- tirement under 'a'charterprovision allowing credit for such service, conditioned on a return to employment wlth- In one year after having been "honorably discharged from such service." The particular pollceman had been re- lieved from active duty in the service but was and re- mained a member of the reserve at the time he returned to employment with the city. The Court allowed the credit for several reasons, one of which was stated'to be: "We are satisfied that the words 'honor-~ ablg discharged from such service' must be construed to mean, In a proper case, honor- ably relieved, released, transferred, or re- tired from active duty status, and, hence, that the plaintiff herein, when he resumed the discharge of duties In the police depart- ment on November 24, 1942, under the circum- stances hereinabove related, fulfilled all the requirements of section 189 which are applicable to a city employe-veteran whose time of service for a police pension Is not otherwise complete." We therefore conclude that Mr. Harrl,swas "dis- charged," within the meaning of Section 11 (c) of the public Accountancy Act of 1945, Article 41a, V.C.S., on April-24, 1946. Whether he was "honorably" discharged depends on whether at the time of relief from active duty his service was offlclally determined to have.been honor- able. The certificate Of satisfactory service accompany- ing your request indicates that Harris was separated under honorable conditions. However, whether the service was determined to have been honorable Is material only If the application was made within the time allowed in the Act. Hon. J.~A. Phillips, Page 4, (V-1156) ASsUming , as Indicated by your letter and attachments. that Mr. Harris was relieved from active duty on April 24, 1946, kd has been on an Inactive reserve basis ever since, he may not now qualify un- der Section 11 (c). SUMMAHY A member of the U.S.,Naval Reserve who was released from active duty In the Navy on April 24, 1946, was "discharged" on that date within the meaning of Sec- tion 11 c) of the Public Accountancy Act of 1945 IArt. 41a, Sec. 11 (c), V.C.S.). APPROVED: Yours very truly, Ned McDaniel PRICE DANIEL State Affairs Division Attorney General Jesse P. Luton, Jr. ReVieWing Asalstant Charles D. Mathews Gi?&d@ . First Assistant Aselstant WSL:jmc