Page images

covers their cases; and the question for decision is in which class they are required to be placed after discharge and acceptance of commissions in lower grades.

The provision for " officers in the service on June 30, 1922," includes officers then in the service, who, under laws then in effect, would ordinarily continue in the Army indefinitely, being promoted from time to time, pursuant to law, but carrying with them to the higher grades their right to count service for pay purposes as officers in the service on June 30, 1922. On the definite and complete separation of such an officer, and his subsequent reappointment as an officer of the Regular Army, say under the provisions of section 24-e of the act of June 4, 1920, 41 Stat., 774, after an interval of civilian life, although he was in the service on June 30, 1922, by reason of his reappointment after July 1, 1922, he would be entitled to count service only as an officer appointed after July 1, 1922.

The difference between such an officer and the officers here in question is one only of degree; both are completely separated from the Army by their discharge, and they become at that very instant civilians, free to come and go as they please. The officers here in question are not compelled to accept the commission in the lower grade, and in accepting the commission they accept the pay provided for officers appointed on or after July 1, 1922. Two suggestions are urged against this view, as follows:

It has frequently been held that an enlisted man, discharged prior to the expiration of his term of service for the purpose of reenlisting or of accepting a commission or an appointment as Army field clerk, is not discharged from the service, but is continued in the service in a different status.

An officer who is discharged for the purpose of accepting a commission in a higher grade is not considered as being separated from the servce and newly appointed.

And, it is added: It would not appear, therefore, that an officer who is discharged for the purpose of accepting a commission in a lower grade should be considered as being separated from the service and newly appointed.

With respect to the first of the suggestions, it may be remarked that the decisions referred to consider claims for payment of amounts payable under the law on discharge from the Army, such as travel pay or allowance to place of enlistment or appointmert, or payment of a gratuity on discharge and return to civil life. It was held, and properly, where a discharge issued merely to enable the man to reenter the service in a new enlistment or a different capacity, that there was not a discharge from the Army within the meaning of the particular law under which the claim was made. In ascertaining the intent of the laws so construed those decisions considered the purpose

to be accomplished by the bounty of Congress, in the one case, to enable the discharged man to return to his home after military service, in the other to aid him in returning to civil occupation. Accordingly, it was held that the statutes so construed contemplated for discharge purposes a complete separation from the Army by which the man returned to civil life, and did not include discharges issued solely for the purpose of enabling the man to continue in the Army. in a new enlistment or in another capacity.

There is no question but that the discharges to be issued in the cases now considered will operate as a complete separation from the Army; the officer is under no obligation, express or implied, to accept the commission in the lower grade-by his discharge he is completely separated from the Army. The law, it will be observed, speaks of officers accepting recommission in a lower grade.

With respect to the second suggestion: It is not necessary that an officer promoted in due course to an existing vacancy be formally discharged; the acceptance of the higher office operates as a vacation of the office from which promoted. Formal discharge in such cases is unnecessary and it is understood that none is issued. An officer of the Army normally contemplates permanency by an appointment to a commissioned grade in the Regular Army; he is advanced step by step in accordance with law; he continues in a lower grade until & vacancy occurs in the next higher grade to which he is eligiblo to be promoted; and his promotion takes the form of a nomination to and confirmation by the Senate, and the issuance by the President of a commission in the higher grade. But the officer is continuously in the military service. Until he accepts the new commission he continues in the service in the lower grade, he is not relieved from his military obligation in any manner or form, and there is not an instant of time that he is not amenable to military jurisdiction.

Where, however, an officer is formally discharged-completely freed from his military status and his obligation to serve_if recommissioned, whether in the same, a higher, or lower grade, there is an appointment to the Army within the meaning of the first sentence of paragraph 11 of section 1 of the act of June 10, 1922. In such cases, where appointments are made on or after July 1, 1922, the officer is entitled to count service for pay purposes only as an officer appointed on and after July 1, 1922. Your third question is answered accordingly.

It is to be observed that the act of June 30, 1922, does not in its provisions provide for demotions as ordinarily understood, but for discharge and recommissioning for the primary purpose of reduce tion of the Army, and the situation of officers discharged and recommissioned in lower grades which causes them to lose the benefit of service other than commissioned service results from the fact that the respective provisions were enacted in separate laws, the act of June 10, 1922, relating to the counting of only commissioned service, and the act of June 30, 1922, stipulating for the discharge and recommissioning. The result is that those who heretofore may have only had enlisted service and may after June 30, 1922, be appointed officers of the Army can not count such enlisted service for pay purposes; and apparently it also results in those officers who have heretofore, before June 30, 1922, been commissioned but the major part of whose service is that of enlisted service, and who may now be discharged from the service, may be caused a possible loss in the right to count such enlisted service if again commissioned—whether commissioned immediately with the discharge or at a more or less later period after discharge. While apparently this creates a harsh condition, yet such must be understood to be the law in the specific direction of the act of June 10, 1922, that only commissioned service may be counted; and such harsh conditions as result therefrom must be a matter for the consideration of the Congress. The Congress is now in session and I understand the matter of the operation of the act of June 30, 1922, relating to the reduction of the Army has been brought to its attention in several bills. Equally so this matter of discharge and recommissioning may be brought to its attention so that if unjust and harsh conditions have resulted they may be redressed by the Congress. For this office to undertake to say that because of the seemingly harsh conditions a different interpretation should be given than that herein announced would simply be for this office to assume legislative functions, for which there is no authority under the Constitution or the laws.



The provision in the act of June 10, 1922, 42 Stat., 628, granting allowances

for subsistence and rental of quarters to officers having dependents is limited in its effect to the dependents bearing the relationship named in the act, and a nurse of the Public Health Service is not entitled to either

a subsistence or rental allowance by reason of having a dependent husband. Comptroller General McCarl to the Secretary of the Treasury, August 31,


There has been received, by your indorsement of August 17 with request for decision, letter of August 15, 1922, from the Surgeon General of the Public Health Service submitting a supplemental voucher stated in favor of Surg. Margaret R. Stewart (reserve),

989449 0-52----13

United States Public Health Service, for increased subsistence and rental allowances for the month of July, 1922, by reason of having as a dependent a “lawful husband.”

The voucher shows that Surgeon Stewart is in receipt of pay of the fourth period; although it is not so stated, it is presumed that she has received one subsistence allowance and rental allowance for three rooms, and that the claim presented is for two additional subsistence allowances and the rental allowance for two additional rooms, under sections 5 and 6 of the act of June 10, 1922, 42 Stat., 628. Increased subsistence and rental allowances are authorized for officers having dependents, and section 4 of the act provides:

That the term " dependent" as used in the succeeding sections of this act shall include at all times and in all places a lawful wise and unmarried children under twenty-one years of age. It shall also include the mother of the officer provided she is in fact dependent upon him for her chief support.

No evidence is submitted that the husband in this case is in fact dependent upon the wife for support, and apparently the basis of the claim is that if an officer-husband is entitled to increased allowances because of having a wife conversely an officer-wife should be allowed the increase also because of having a husband.

There have been cases where terms of the masculine gender in a statute have been construed to include females, where the language of the statute clearly showed the intent to include both sexes or either sex; e. g., Silver v. Ladd, 7 Wall., 219; 24 Comp. Dec., 775. The act of April 16, 1918, 40 Stat., 530, as extended by the act of May 18, 1920, 41 Stat., 602, authorized commutation of quarters, heat and light, for officers on field duty or on active duty without the territorial jurisdiction of the United States, who maintained an abode for a wife, child, or dependent parent. That act is now repealed, but it was similar in purpose in some respects to the provisions made in sections 5 and 6 of the act of June 10, 1922, for officers having dependents. In construing that act it was said, 1 Comp. Gen., 204: from the relation of husband, or father, the law conclusively presumes that the wife, or infant child, is dependent upon him for support.

No labored argument is necessary to show that the converse of this could not also be true and that the husband is conclusively presumed to be dependent upon his wife for support.

But aside from the fact that no evidence is submitted tending to show that in this particular case the husband is in fact dependent upon his wife for support, I think section 4 must be construed as naming all of the persons who are to be included in the term “dependent,” i. e., a lawful wife, unmarried children under twenty-one years of age, and the officer's mother if she is in fact dependent upon him for her chief support.

[ocr errors]

The specific mention of the mother of the officer; the exclusion of the father; and the limitation to unmarried children under 21 years of age without regard to conditions, indicates the purpose of the statute to name all of the individuals to be included in the term dependents” thereafter used in the act. The term so limited by statute may not be extended to include others not specifically mentioned, even though in fact dependent upon the officer. As a “lawful husband ” is not so included the voucher (herewith returned) in favor of Surgeon Stewart should not be paid.

DETENTION PAY TO ENLISTED MEN OF NAVY AFTER JULY 1, 1922. The one-fourth additional pay authorized by section 1422, Revised Statutes.

as amended by act of March 3, 1875, 18 Stat., 484, to enlisted men of the Navy when detained beyond the period of their enlistment under conditions specified in the act, is not a "transient addition " to their pay, and the provision therefor is accordingly not repealed by section 10 of the

act of June 10, 1922, 42 Stat., 630. Comptroller General McCarl to the Secretary of the Navy, September 1, 1922:

I have by your direction the letter of the Acting Paymaster General of the Navy, dated August 2, 1922, requesting decision whether under the act of June 10, 1922, 42 Stat., 625, on and after July 1, 1922, one-fourth additional pay is authorized for enlisted men detained in the naval service after expiration of enlistment, as prescribed in section 1422 of the Revised Statutes, when such detention is essential to the public interest.

Section 1422 of the Revised Statutes, as amended by the act of March 3, 1875, 18 Stat., 484, provides

That it shall be the duty of the commanding officer of any fleet, squadron, or vessel acting singly, when on service, to send to an Atlantic or to a Pacific port of the United States, as their enlistment may have occurred on either the Atlantic or Pacific coast of the United States, in some public or other vessel, all petty-officers and persons of inferior ratings desiring to go there at the expiration of their terms of enlistment, or as soon thereafter as may be, unless, in his opinion, the detention of such persons for a longer period should be essential to the public interests, in which case he may detain them, or any of them, until the vessel to which they belong shall return to such Atlantic or Pacific port. All persons

who shall be so detained beyond their terms of enlistment,

shall receive for the time during which they are so detained,

an addition of one-fourth of their former pay: Provided, That the shipping-articles shall hereafter contain the substance of this section.

Section 10 of the act of June 10, 1922, 42 Stat., 630, provides in part as follows:

All transient additions to pay of enlisted men of the Navy and Coast Guard are hereby repealed, except as provided in section 21 of this Act.

Section 21 referred to makes no reference to the element of onefourth additional pay. The question is, therefore, whether this

« PreviousContinue »