I refer to your memorandum, dated 5th July, 1950, requesting advice as to whether there is any legal objection to the appointment or promotion of an airman who was discharged on 20th December, 1945, the appointment or promotion to take effect during the period of his service.

(2)  In my opinion, for the reasons set out hereunder, the Air Force Act 1923–1941 and the Air Force Regulations do not authorize such an appointment or promotion.

(3)  The facts in the present case are that Warrant Officer X. was a pilot in No. 3 Squadron, who was shot down in combat in 1941 and remained a prisoner of war until 1945. Before being shot down and captured, Warrant Officer X. had been recommended with other non-commissioned officer pilots in his squadron for a commission. His papers, however, were lost and the question of the grant of a commission to him was never pursued. After being recovered from internment he was repatriated and apparently discharged on the 20th December 1945 as a Warrant Officer.

(4)  Had Warrant Officer X.’s papers not been mislaid, the following action would normally have been taken in his case:

(a)  Appointment to a commission on probation with the rank of Pilot Officer with effect from 1st May, 1942.

(b)  Confirmation of such appointment and promotion to the rank of Flying Officer with effect from 1st November, 1942.

(c)  Promotion to the rank of Flight Lieutenant (Temporary) with effect from 1st May, 1944.

(d)  Termination of appointment with effect from 20th December, 1945.

(5)  The relevant regulations governing appointments and promotions are regulations 45 and 58. Regulation 45(1) provides that ‘the Governor-General may, on the recommendation of the Air Board, appoint and promote officers and issue commissions to them.’ Regulation 58 is as follows:

Except as provided in regulations 59 and 59A of these Regulations, all appointments relating to officers shall be notified in the Gazette and promulgated in Orders and, unless otherwise expressly stated, such appointment shall take effect from the date of publication in the Gazette.

(6)  These provisions, in my view, would enable the Governor-General to appoint Warrant Officer X., provided he is otherwise eligible, to a commission as at the date of the publication of the appointment in the Gazette, and, if he so desires, to state expressly that the appointment shall be deemed to have taken effect as from 1st May, 1942. If so appointed, Warrant Officer X. would continue to hold the commission until such time as he resigns or retires or until his commission is otherwise terminated at some future date. I think, therefore, that regulation 45 authorizes a present appointment, but that regulations 45 and 58 do not, in my view, enable the Governor-General to appoint Warrant Officer X. to a commission to take effect from 1st May, 1942, and to terminate that appointment on 20th December, 1945, or, in other words, to appoint him for a specified period in the past. There are no provisions in the Regulations authorizing the Governor-General to terminate appointments retrospectively, and that is, in effect, what would happen in this case if the appointment were expressed to terminate on 20th December, 1945. As it is not possible to make the appointment in the manner indicated, it follows that Warrant Officer X. cannot be promoted to the ranks of Flying Officer and Flight Lieutenant (Temporary) on 1st November, 1942 and 1st May, 1944.

(7)  If it is desired to appoint and promote Warrant Officer X. as set out in paragraph 4 of this memorandum, it will be necessary to amend the Regulations to make special provision for his type of case. An amendment of this nature was inserted in the Regulations (regulation 45(1A)) to enable persons who have died to be appointed or promoted in pursuance of regulation 45 so that the appointment or promotion shall take effect from such date, earlier than the date of death of the person appointed or promoted, as is specified in the instrument of appointment or promotion, as the case may be. However, if it is desired that Warrant Officer X. should not be deprived of the increase in emoluments to which he would have been entitled had he been appointed to a commission and promoted, this course could be effected by means of an act of grace payment.

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See also case of Goldstein v. Johnson (184 F. 2d 342) (Federal Reporter, Second Series page 342–1950) for United States practice in cases of correcting service records where injustice has been done.¹

[Vol. 39, p. 357]

¹ This sentence is handwritten at foot of original opinion.