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the retirement of officers as herein provided for:

Act of June 30, 1882 (22 Stat. 118).

The retirements provided for by this act were to be in addition to those previously authorized by law, by 2402, ante.

Notes of Decisions.

Officers zerving in Volunteer Army.--The Volunteer service contemplated by this section (and other prior similar acts) was clearly the Volunteer service of the Civil War, and can not be held to be prospective, and to have anticipated a new Volunteer service. (1899) 22 Op. Atty. Gen. 199.

in officer of the Regular Army who is 64 years of age, temporarily serving under a Volunteer commission, may be retired under this section, without affecting his status in the Volunteer service. This section does not, however, apply to a Volun

teer officer, not being in the Regular Army, who is 64 years of age. (1898) 22 Op. Atty. Gen. 176; (1899) Id. 199.

Expert accountant.-An expert account ant in the Inspector General's Department is not entitled to be placed on the retired list on the ground that he has reached the age of 64 years, because he is not an officer of the Army within the meaning of the statutes of the United States conferring the privilege of retirement. (1911) 29 Op. Atty. Gen, 249,

2404. Vacant.

2405. Retirement upon officer's own application.-When an officer has served forty consecutive years as a commissioned officer, he shall, if he makes application therefor to the President, be retired from active service and placed upon the retired list. When an officer has been thirty years in the service, he may, upon his own application, in the discretion of the President, be so retired, and placed on the retired list. R. S. 1243.

Notes of Decisions.

Oficers retired.- Under R. S. 1094 (now superseded), officers of the Army on the retired list were a part of the Army, and therefore no one could be put upon the retired list who was not an officer of the Army, appointed in the manner required by Const. art. 2, sec. 2. Wood v. U. S. (1882), 2 Sup. Ct. 551, 554, 107 U. S. 414, 27 L. Ed. 542.

Officer summarily dismissed.-Where an officer has been summarily dismissed from the service, such dismissal creates a cancy in the office which he held, which can only be filled by appointment, with the advice and consent of the Senate. Consequently he can not be restored to such office by an order revoking the dismissal and reinstating him. Hence, where he has been restored in such manner, he is not

entitled to be placed on the retired list under this section, (1888) 19 Op. Atty. Gen. 202.

Military secretary.--In (1874) 14 Op. Atty. Gen, 506, it was held that a military secretary, who had been appointed as such on the staff of a general, who was entitled to such military secretary only so long as he retained his rank as such general, could not be placed on the retired list, because of the fact that such appointment as military secretary had been terminated by the retirement of the general to whose staff he had been appointed, and he was consequently no longer on the Army list. This opinion was reaffirmed in (1881) 17 Op. Atty. Gen. 9.

See also notes to 2407, post.

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2406. Retirement of Class B officers.

Whenever an officer is placed in Class B, a board of not less than three officers shall be convened to determine whether such classification is due to his neglect, misconduct or avoidable habits. If the finding is affirmative, he shall be discharged from the Army; if negative, he shall be placed on the unlimited retired list with pay at the rate of 24 per centum of his active pay multiplied by the number of complete years of commissioned service, or service which under the provisions of this Act is counted as its equivalent, unless his total commissioned service or equivalent service shall be less than ten years, in which case he shall be honorably discharged with one year's pay. The maximum retired pay of an officer retired under the provisions of this section prior to January 1, 1924, shall be T5 per centum of active pay, and of one retired on or after that date, 60 per centum.

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Sec. 246, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 773).

For classes A and B, see ante, 2280, 2281.

2407. Retirement for incapacity.-When any officer has become inca pable 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. R. S. 1245.

Notes of Decisions.

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Retirement in goneral.—The department of the service called retirement being the creation of statute, he who claims a right in it must depend for the measure of his claim on the terms of the law. McBlair v. l'. s. (1884), 19 Ct. C1, 528.

Officers within provisions.--Paymasters' elerks in the Army are properly appointed by the Secretary of War, and are officers of the United States, within the constitutional meaning of that term. They are officers in the regular service, within the meaning of acts ol

Congress respecting retirement. (1909) 27 Op. Atty. Gen. 493.

Grounds for retirement.-An officer of the Army can not be retired for incapacity, if he can properly be brought to trial by court-martial for the same acts or omissions which are alleged as evidence of the incapacity justifying his retirement. (1908) 27 Op. Atty. Gen. 14.

Incapable of performing duties of office.An officer of the Army, found by a retiring board, duly organized and convened, to be "incapable of performing the duties of his office," may be, and ought to be, retired, without regard to the causes which may have led to such incapacity on his part. But to be “incapable" the officer must be either no longer responsible for his own actions, or subject to infirmities or disabilities which make the reasonable fulfillment of his military duties impossible for him, nothwithstanding an honest desire and firm purpose on bis part to fully discharge them. Even thongh such officer display impatience or irritability, imperfect rontrol of his temper, indolence, indecision, and want of alertness in the performance of his duties to such an extent as to destroy or greatly impair his usefulness as an officer, he does not thereby necessarily become incapable of discharging bis duties in such a sense as to justify his retirement. (1908) 27 Op, Atty. Gen. 14 ; (190) Id. 163.

Willful íailure to discharge duty.--The punishment of an officer of the Army for willful failure to discharge his duty can not

be legally effected through the agency of a retiring board. (1908) 27 Op. Atty. Gen. 14.

Objections to promotion.-- Objections to the promotion of an officer of the Army constitute no ground for retiring him from service, unless resulting in the actual incapacity contemplated by the above-named sections. (1909) 27 Op. Atty. Gen. 163.

Effect of retirement in general. It was not the intention of the statute relating to the retirement of Army officers to place retired officers wholly out of the service. Tyler v. U. S. (1880), 16 Ct. Cl. 223.

Status of retired officers in general.-An officer placed on the retired list is still an officer of the United States. There is a clear distinction between officers retired from active service, whose names remain on the Army Register, and those wholly retired, whose names are dropped from the Register, and who are no longer officers of the United States. In re Winthrop (1895), 31 Ct. Cl. 35.

Wholly retired.--To be wholly retired" is to be put out of the Army and out of office. Upon an order of the President, approving a report, and “wholly retiring an officer, there is in law and in fact a vacancy, the legal status of the officer becoming that of a private citizen. And the nomination and confirmation of an officer as the successor of one “wholly retired " operate in law to supersede the retired officer, who thereby ceases to have any connection with the Army. But where an ollcer, illegally placed on the retired list by the President, has been subject to the disqualifications of the position, he must be regarded as an officer de facto. Miller v. v. U. S. (1884), 19 Ct. Cl. 338.

But see 16 Op. Atty. Gen. 20.

Officer wholly retired becomes a civilian.An officer, on being wholly retired, be. comes a civilian, and can be readmitted to the service only by a new appointment. But he can not be appointed at once to the retired list. A civilian can not be appointed as a retired officer. lle must first

be appointed an officer on the active list, of a certain rank. None but a commissioned officer on the active list of the Army can be placed on the retired list. 19 Op. Atty. Gen. 202.

Determination by President.-The jurisdiction of the President over the relations of an officer to the Army, and his right to determine whether an officer incapacitated for service be placed on the retired list, or wholly retired are created by statute, and the President's authority therein is wholly dependent upon the letter of positive enactmont. The President has the power, upon the report of a retiring board, to retain the report of a retiring board, to retain the officer in active service, retire him from activ? service, or wholly retire him. Such power is not a continuing one, and is performed to the extent of its existence by the one act of the President, and, having once determined," he can not review his decision, nor correct an error of judgment

therein. McBlair v. U. S. (1884), 19 Ct. Cl. 528. And see (1888) 19 Op. Atty. Gen. 203 ; (1878) 15 Op. Atty. Gen. 442.

The finding of a retiring board, approved by the President, is conclusive as to the facts. The board finds the facts and the President approves or disapproves the finding, but the law does not empower him to modify the finding or to substitute a different one. There is here a judicial power vested in the two, and not in the President acting singly, and when the power has once been fully exercised it is exhausted as to the case. (Dig. Opin, J. A. G., 987 ; U. S. v. Burcbard, 125 U. S., 179; U. $. v. Miller, 19 Ct. Cls., 338.)

When the President has once acted upon the findings of a retiring board his power over the case is exhausted and his sub. sequent orders in respect to such officer are void for want of authority. (19 Opin. Atty. Gen., 202.)

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2408. Physically disabled officers not on limited retired list.

And provided further, That hereafter officers retired for physical disability shall not form part of the limited retired list:

Act of Sept. 17, 1919 (41 Stat. 286).

2409. Retirement for disability incident to 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. R. S. 1251.

See also 2283, ante, and 2441, post.

2410. Retirement of disabled provisional officers.-Should any such officer during such provisional period of two years become incapable of performing the duties of his office by reason of physical incapacity resulting from an incident of service, he shall be retired from active service by the President upon the actual rank held by him at the time of retirement in the manner provided by law for the retirement of permanent officers of the Regular Army, and provisional officers retired nnder the provisions of this section shall be in addition to the number of the officers of the Army on the retired list now fixed by law. Act of July 9, 1918 (90 Stat. 852), amending sec. 23, act of June 3, 1916 (39 Stat. 181).

But see 2268, ante.

2411. Retirement for disability not incident to service.- When the board finds that an officer is incapacitated for active service, and that his incapacity is not the result of any incident of service, and its decision is approved by the President, the officer shall be retired from active service, or wholly retired from the service, as the President may determine. The names of officers wholly retired from the service shall be omitted from the Army Register. R. S. 1252.

Notes of Decisions.

Retired from active service, and wholly retired. The statutes make a clear distinction between oficers retired from active

service whose names remain on the Army Register and those wholly retired, whose names are dropped from the Register and who are no longer officers of the United States. Jp re Winthrop (1895), 31 Ct. Cl.

35.

out of the Army and out of office. An officer wholly retired becomes a civilian, and can be readmitted to the service only by a new appointment, Miller v. U. S., 19 Ct. Cls., 338.

To be “ wholly retired," in accordance witb the terms of this section, is to be put

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2412. Transfer from limited to unlimited retired list.-That when officers who have been placed on the limited retired list as established by section seven, chapter two hundred and sixty-three, page one hundred and fifty, volume twenty, United States Statutes at Large, shall have attained the age of sixtyfour years they shall be transferred from said limited retired list to the unlimited list of officers retired by operation of law because of having attained said age of sixty-four years.

Act of Feb. 16, 1891 (26 Stat. 763). See note to 2413, post.

2413. Limited retired list.—The whole number of officers of the Army on the retired list shall not at any time exceed three hundred, and any less number to be allowed thereon may be fixed by the President in his discretion. R. S. 1258.

And the limited retired list shall hereafter consist of three hundred and fifty instead of four hundred, as now fixed by law: Provided, That officers who have been placed on the retired list by special authority of Congress shall not form part of the limited retired list established by this act. Act of Feb. 16, 1891 (26 Stat. 763).

The limited retired list was established by sec. 16, of the act of Aug. 3, 1861 (12 Stat, 289), which provided that the number of officers retired in accordance with the authority conferred by the act should not, at any time, exceed 7 per cent of the whole number of officers of the Army as fixed by law. This limitation was incorporated in R. S. 1258, above. By sec. 5, of the act of July 15, 1870 (16 Stat. 317) sec. 1258, R, S., the number of officers to be borne upon the retired list was to be determined by the President, in his discretion, but was not to exceed 300. By sec. 7, of the act of July 17, 1878 (20 Stat. 150), the number of retired officers was increased to 400. By the act of Feb. 16, 1891 (26 Stat. 763), the number was reduced and fixed at 350, the number now authorized by law. For statutes in relation to the retirement of officers found physically disqualified for promotion by boards of examination see 2283, 2287, ante,

The unlimited list was established by act of June 30, 1882, ante, 2403.
But see 2408, ante.

2414. Retirement after 45 years' service or at the age of 62.—When any officer bas served forty-five years as a commissioned officer, or is sixty-two ye old, he may be retired from active service at the discretion of the President. R. S. 1244.

Notes of Decisions.

Reinstatement.-An Army officer who has been retired from active service by the President under this section can not be reinstated on the active list, except by a new appointment with the advice and consent of the Senate, and where vacancies on the

active list exist which may lawfully be filled. (1869) 13 Op. Atty. Gen. 99. He can not be reinstated by an order of the President, though the vacancy caused by his retirement may not have been filled. (1870) 13 Op. Atty. Gen, 209.

2415. Officers entitled to a hearing before being retired.-Except in cases where an officer may be retired by the President upon his own application, or by reason of his having served forty-five years, or of his being sixty-two years old, no officer shall be retired from active service, nor shall an oflicer, in any case, be wholly retired from the service, without a full and fair hearing before an Army retiring board, if, upon (lue summons, he demands it. R. S. 1253.

Notes of Decisions.

Full and fair hearing.--When the President approves and acts upon the report of a retiring board, he thereby determines that the officer has had “a full and fair hearing," Miller u. U. S. (1884), 19 ct. CI, 338.

Remand to board. --This section does not

authorize the President to send a case back to a retiring board, if he has cnce approved and acted upon its report. Miller v. U. S. (1884), 19 Ct. CI. 338.

See also notes to 2407, ante.

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2416. Retirement of general officers.

Provided further, That hereafter no officer holding a rank above that of colonel shall be retired except for disability or on account of having reached the age of sixty-four years until he shall have served at least one year in such rauk. Act of June 12, 1906 (31 Stat. 245).

See 2422, post.
2417.. Retirement of veterinarians.-

Provided, That hereafter so much of section twenty, of the Act approved February second, nineteen hundred and one, as provides that veterinarians shall receive the pay and allowances of second lieutenants, mounted, shall be interpreted to authorize their retirement under the laws governing the retirement of second lieutenants. Act of Mar. 3, 1911 (36 Stat, 10.12).

But see 553 and 588, ante.

2418. Retirement of officers who served with Isthmian Canal Commission.That at any time after the passage of this Act any officer of the Army or Navy to be benefited by the provisions of this Act may, on his own application, be retired by the President at seventy-five per centum of the pay of the rank upon which he is retired. Sec. 6, act of March 4, 1915 (38 Stat. 1191).

2419. Promotion of retired officers who commanded volunteers during the Civil War.-That the President be, and he is hereby, authorized to appoint, by and with the advice and consent of the Senate,' any brigadier general of the Army on the retired list who has held the rank and command of major general of Volunteers and performed the duties incident to that grade in time of actual warfare, and has been honorably discharged and who served with credit in the Regular or Volunteer forces during the Civil War prior to April ninth, eighteen hundred and sixty-five, to the grade of major general in the United States Army and place him on the retired list with the pay of brigadier general on the retired list; and any officer now on the retired list of the Army who served with credit for more than two years as a commissioned officer of Volunteers during the Civil War prior to April ninth, eighteen hundred and sixty-five, and who subsequently served with credit for more than forty years as a commissioned officer of the Regular Army, including service in command of troops in five Indian campaigns, the War with Spain, and the Philippine insurrection, and to whom the Congressional medal of honor for most distinguished conduct in action has been twice awarded, and who has also been brevetted for conspicuous gallantry in action, and place him on the retired list of the Army with the rank and retired pay of one grade above that actually held by him at the time of his retirement from active service in the Regular Army. Act of liar. 4, 1915 (38 Stat. 1084).

Special temporary provisions for the selection of two brigadier generals of Volunteers to be brigadier generals of the Regular Army, and their retirement, and for the selection from the retired list of an officer of the Regular Army not above the rank of brigadier general, to be major general on the retired list, were made by sec. 33, act of Feb. 2, 1901 (31 Stat. 756).

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