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2420. Status of retired officers.--Officers retired from active service shall be withdrawn from command and from the line of promotion. R. S. 1255.

Notes of Decisions.

ct of retirement.--An Army officer is not discharged from service by his retirement; nor is he out of the service thereby. D. S. 1'. Gillmore (C. C. 1911), 189 Fed. 761; Tyler v. U. S. (1880), 16 Ct. Cl. 223.

See also notes to 2407, ante. Officers on retired list.--Officers on the retired list are a part of the Army. U. S. v, Tyler (1881), 105 U. S. 244, 245, 26 L.

Ed. 985; Wood v. U. S. (1882), 2 Sup. Ct. 551, 554, 107 U. S. 414, 27 L. Ed, 542; Flower u. U. S. (1895), 31 Ct. CI. 35. And no one can be placed upon the retired list who is not an officer appointed in the manner required by Const, art. 2, sec. 2, cl. 2. Wood v. U. S. (1882), 2 Sup. Ct. 551, 554, 107 U, S. 414, 27 L. Ed. 542.

2421. Rights and liabilities of retired officers. -Officers retired from active service shall be entitled to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach thereof. R. S. 1256.

Officers and men on the retired list were made subject to the Articles of War by art. 2 thereof.

A. W. 2, chap. 52, post. The pay and allowances of retired officers were preseribed by R. S. 1274 and 1275, aute, 1643, 1647.

Retired officers may be assigned to duty as provided in 2426-2442, post.

Retired officer are specifically excepted from the provision forbidding all persons holding an office, the salary or annual compensation attached to which amounts to $2,500, from holding any other lucrative office, contained in 72, ante.

See also 1649, 1650, 2367, ante.

Notes of Decisions.

Rights in general.—Persons who served martial has jurisdiction of offenses comduring the Rebellion in the Army of the mitted after the officer was retired, Runkle United States as officers in the Volunteer v. U. S. (1884), 19 Ct. C). 396. service, and have been honorably mustered Assignment of unearned retired pay.-The out of such service, are entitled to bear the assignment of the unearned half py of a official title, and, upon occasions of cere

retired Army officer will not be enforced, mony, to wear the uniform of the highest as against public policy; he being still grade they have held in the Volunteer subject to military orders, under this secservice. (1897) 21 Op. Atty. Gen. 579. tion. Schwenk v. Wyckoff (1890), 46 N. J.

Court-martial.--A retired officer is sub- Eq. 560, 20 Atl. 259. ject to trial by court-martial, and a court

2422. Officers retired on actual rank.-Officers hereafter retired from active service shall be retired upon the actual rank held by them at the date of retirement. R. S. 12.5.'.

If any officer of the Regular Army is retired while holding a temporary appointment made under the provisions of this paragraph, he shall have the rank of such temporary grade, and his retired pay shall be computed upon the pay of that grade. Sec. 127a, added to the act of June 3, 1916, by scc. 51, act of June 4, 1920 (41 Stat. 787).

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Notes of Decisions.

Renk on retirement.- Under act of July 28, 1866 (14 Stat. 337), a

colonel of Cavalry was retired, with the rank and pay of a major general. By act of Mar. 3, 1875

(18 Stat. 512), his retired rank and pay were reduced to those of a brigadier general. Held, that his retired ranl of major general did not confer on tim the office of a major general, and thi Congress had power to change his retired rank and pay. Wood v. U. S. (1882), 2 Sup. Ct. 551, 107 U. S. 414, 27 L. Ed. 542.

An Army officer who accepts a recess promotion, and thereafter becomes eligible for

retirement by reason of age, l efore the
adjournment of Congress, and before the
appointment is acted upon by the Senate,
is entitled to the rank of his new appoint-
ment on his retirement, (1912) 25 Op.
Atty. Gen. 598.

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2423. Disabled officers retired on actual rank.---That all officers of the Ariny who have been heretofore retired by reason of disability arising from wounds received in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list and receive pay hereafter accordingly; and this section shall be taken and construed to include those now borne on the retired list placed upon it on account of wounds received in action: Provided, That no part of the foregoing act shall apply to those officers who had been in service as commissioned officers twenty-five years at the date of their retirement; nor to those retired officers who had lost an arm or leg, or has an arm or leg permanently disabled by reason of resection, on account of wounds, or both eyes by reason of wounds received in battle; and every such officer now borne on the retired list shall be continued thereon notwithstanding the provisions of section two chapter thirty-eight act of March thirty, eighteen hundred and sixty-eight; and be it also provided that no retired officer shall be affected by this act, who has been retired or may hereafter be retired on the rank held by him at the time of his retirenrent;

Sec. 2, act of Mar. 3, 1875 (18 Stat. 512).

Sec. 2, act of Mar. 30, 1868, referred to in this section, providing that any officer of the Army or Navy who should accept or hold any appointment in the diplomatic or consular service should be considered as having resigned, was incorporated in R. S. 1223, 2374, ante.

The pay of any officer retained on the retired list under this act was not to be suspended or withheld, notwithstanding he accepted and held a diplomatic or consular office, by a provision of act of Mar. 3, 1891 (26 Stat. 872).

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Notes of Decisions.

Construction of section in general. - This section should be construed to have a prospective effect only. (1890) 19 Op. Atty. Gen. 609.

Wounds received in battle.-An aggrava. tion of a disease from jolting in a saddle during active service is not Founds received in battle." Sec. 32, act of July 28, 1866 (14 Stat. 337). (1881) 17 Op. Atty. Gen. 7.

Decision of examining board as to.- The opinion and recommendation of an examining board, made under a misconception of the law, can not control distinct statutory provisions, limiting retirements to instances where the disability was * occasioned by wounds received in battle." (1881) 17 Op. Atty. Gen. 7.

Arm or leg permanently disabled by resection. -The word resection," as used in the first proviso to this section, is a surgical term, signifying the removal by excision of dead or diseased bone-more (pecially the

the articular extremities or the unconsoll.
dated extremities of fractured bones. In
order to bring a case within the terms of
the proviso, the essential circumstances re-
quired are: (1) A previous wound, causing
some portion of the bone to become dis-
eased or dead; (2) thereby necessitating &
cutting off and removal of the dead or
diseased part, which is accomplished; (3)
whereby the limh is permanently disableil.
It is sufficient if the disability is in part
approximately attributable to the resection,
though this be proportionately less than
what is due to other contributory causes.
(1876) 15 Op. Atty. Gen. 83.

A partial resection of an arm or leg on
account of wounds received in battle, where
the operation is followed by permanent dis-
ability of the limb, and the disability is
partly owing to such operation, suffices to
bring a case within the proviso. (1877)
15 Op. Atty. Gen. 199.

Where an officer was permanently disabled of a limb mainly from the efects of.

was

a wound received in battle, and a doubt Change in rank. --The retirement of a exists whether part of the disability, at colonel of Cavalry in June, 1868, under sec. Jeast, was not caused by a resection on ac- 32, act of July 28, 1866 (14 Stat. 337), count of the wound, such officer is entitled with the rank and retired pay of a major to the benefit of the doubt, upon the ground general, because that was the rank of the that this section operating as it does to command held by him when he take away rights previously granted by wounded, did not confer on him the office law, should not be made to affect those as of a major general, and Congress had power to whom its application is doubtful. to change his retired rank and pay to (1876) 15 Op. Atty. Gen. 83.

those of a brigadier general under this Every such officer. --The words every section, that being the actual rank held such officer," as used in the first proviso of by him when he was wounded.

Wood 1. this section, cover all retired officers who U. S. (1882), 2 Sup. Ct. 551, 554, 107 U. S. are included within the preceding part of 414, 27 L. Ed. 542. the same proviso, but do not apply to others. (1877) 15 Op. Atty. Gen. 407.

2424. Rank on retirement of the head of a staff corps or department.-And any officer now holding office in any corps or department who shall hereafter serve as chief of a staff corps or department and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such corps or department chief:

Sec. 26, act of Feb. 2, 1901 (31 Stat. 755).

But see 2425, post.
2425. Rank on retirement of the chief of a branch. -

Any officer who shall have served four years as chief of a branch, and who may subse. quently be retired, shall be retired with the rank, pay and allowances authorized by law for the grade held by him as such chief.

Sec. hc, added to the act of June 3, 1916, by sec. 4, act of June 4, 1920 (41 Stat. 762).

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Notes of Decisions.

Navy retired pay.—The act of May 13, 1918, 35 Stat. 128, wbich provides “ that any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by

law for the retirement of such bureau chief," was enacted for the benetit of bureau chiefs who are placed on the retired list while so serving, and does not apply to an officer who having served as such is retired after relinquishing said office.

Stokes v. U. S. (1919), 54 Ct. Cl. 70.

2426. Detail of retired officers for duty at schools.- That section twelve hun. dred and twenty-five of the Revised Statutes, concerning the detail of officers of the Army and Navy to educational institutions be, and the same is hereby, amended so as to permit the President to detail under the provisions of that Act, and in addition to the details of the officers of the Army and Navy now author. ized to be detailed under the existing provisions of said Act, such retired officers and noncommissioned officers of the Army and Navy of the United States as in his judgment may be required for that purpose to act as instructors in military drill and tactics in schools in the United States and Territories where such instructions shall have been authorized by the educational authorities thereof, and where the services of such instructors shall have been applied for by said authorities. Sec. 1, act of April 21, 1904 (33 Stat. 225).

That no detail shall be made under this Act to any school unless it shall pay the cost of commutation of quarters of the retired officers or noncommissioned officers detailed thereto and the extra-duty pay to which they may be entitled by law to receive for the performance of special duty: Provided, That no detail shall be made under the provisions of this Act unless the officers and noncom

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missioned officers to be detailed are willing to accept such position: Provided further, That they shall receive no compensation from the Government other than their retired pay. Sec. 2, act of April 21, 1904 (33 Stat. 225).

Provided further, That no officer on the active list shall be detailed for recruiting service or for duty at schools and colleges, not including schools of the service, where officers on the retired list can be secured who are competent for such duty:

Act of Sept. 17, 1919 (41 Stut. 286). R. S. 1225, as amended by act of Sept. 26, 1888, mentioned in this act, is set forth, ante, 2366.

But see 1679, ante.

2427. Detail of a retired officer as president or professor of a college. That upon the application of any college, university, or institution of learning incorporated under the laws of any State within the United States, having capacity at the same time to educate not less than one hundred and fifty male students, the President may detail an officer of the Army on the retired list to act as president, superintendent, or professor thereof; and such officer may receive from the institution to which he inay be detailed the difference between his retired and full pay, and shall not receive any additional pay or allowance from the United States.

Act of May 4, 1880 (21 Stat. 113). Provided, That nothing in the act entitled "An Act to increase the number of officers of the Army to be detailed to colleges," approved November third, eighteen hundred and ninety-three, shall be so construed as to prevent, Jimit, or restrict the detail of retired officers of the Army at institutions of learning under the provisions of section twelve hundred and sixty, Revised Statutes, and the Act making appropriations for the support of the Army, and so forth, approved May fourth, eighteen hundred and eighty, nor to forbid the issue of ordnance and ordnance stores, as provided in the Act approved September twenty-sixth, eighteen hundred and eighty-eight, amending section twelve hundred and twenty-five, Revised Statutes, to the institutions at which retired officers may be so detailed; and said act of November third, eighteen hundred and ninety-three, and said act of May fourth, eighteen hundred and eighty, shall not be construed to allow the full pay of their rank to retired officers detailed under said section twelve hundred and sixty, Revised Statutes, and said act of May fourth, eighteen hundred and eighty. Act of Aug. 6, 1894 (28 Stat. 235).

Act of Nov. 3, 1893, referred to in this provision, is set forth, 2366, ante, and the provisions of act of Sept. 26, 1888, amending R. S. 1225, are set forth, 806, ante.

2428. Detail of a retired officer as professor upon his own application.--Any retired officer may, on his own application, be detailed to serve as professor in any college. R. S. 1260.

Section 1260 is amended by adding at the end of the section the following:

“But while so serving, such officer shall be allowed no additional compensation.” Act of Feb. 27, 1877 (19 Stat. 243), amending R. S. 1260,

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2429. Detail of retired officers to duty at the Soldiers' Home.--Retired officers of the Army may be assigned to duty at the Soldiers' Home, upon a selection by

the commissioners of that institution, approved by the Secretary of War; and a retired officer shall not be assignable to any other duty. R. S. 1259.

Section twelve hundred and fifty-nine is amended by adding at the end of the section the following:

* Provided, That they receive from the Government only the pay and emoluments allowed by law to retired officers." Act of February 27, 1877 (19 Stat. 243), amending R. S. 1259.

See. 2, act of Jan. 21, 1870 (16 Stat. 62). Res. Apr. 6, 1870, No. 32 (16 Stat. 372). Above limitation of details has been superseded as set forth in 2426–2428, ante, and 2430-2444, post.

Notes of Decisions.

Approval of selection.-The Secretary of War may approve or disapprove of the selection made by the commissioners. (1882) 17 Op. Atty. Gen. 449.

Duties that may be assigned.-A retired Army officer may be employed by the War Department to supervise work where he could not have been assigned to that duty. Yates v. U. $. (1890), 25 Ct. Cl. 296.

Other duty already assigned.—This section held not to require the amendment of

the appointment held by a retired Army officer as agent in charge of river and harbor work at Wilmington, Del., or that he be relieved from that work, (1889) 19 Op. Atty. Gen. 283.

Pay of officers assigned to Soldiers' Home.-A retired officer assigned to the Soldiers' Home is not entitled to receive from the Government more than the pay and emoluments allowed by law to retired officers. (1892) 20 Op, Atty. Gen, 350.

2430. Retired officers detailed to recruit volunteer forces. That in the organi. zation of a recruiting system, after Congress shall have authorized the raising of volunteer forces, the President is authorized to employ retired officers, noncommissioned officers, and privates of the Regular Army, either with their rank on the retired list or, in the case of enlisted men, with increased noncommissioned rank; or he may, by and with the advice and consent of the Senate, appoint and employ retired officers below the grade of colonel, with increased volunteer commissioned rank not to exceed in the case of any officer one grade above that held by him upon the retired list, or retired enlisted men with volunteer commissioned rank not above the grade of first lieutenant: Prorided, That retired officers and enlisted men while thus employed shall not be eligible for transfer to the field units, but shall receive the full pay and allowances of the respective grades in which they are serving, whether volunteer or regular, in lieu of their retired pay and allowances: Provided further, That upon the termination of the duty or, in case of those given volunteer rank, upon muster out as volunteers said retired officers and enlisted men shall revert to their retired status. Sec. 11, act of Apr. 25, 1914 (38 Stat. 350). 2431. Assignment of retired officers to active duty.-

and the Secre. tary of War may assign retired officers of the Army, with their consent, to active duty in recruiting, for service in connection with the organized militia in the several States and Territories upon the request of the governor thereof, as military attachés, upon courts-martial, courts of inquiry and boards, and to staff duties not involving service with troops; and such officers while so assigned shall receive the full pay and allowances of their respective grades. Act of A pr. 23, 1904 (33 Stat. 264).

* In time of war retired officers may be employed on active duty in the discretion of the President, and when so employed they shall receive the full pay and allowances of their grades.

Sec. 127a, added to the act of June 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 785).

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