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Notes of Decisions.

Termination of assignment to active duty.-A formal order detaching or relieving retired officers from active duty is not necessary. When the duty ends, the order assigning him to duty expires. Where a retired officer is appointed a member of

court-martial, his active service ends when the court is dissolved. Gibson v. U.S. (1912), 47 Ct. Cl. 554.

Right to full pay.- A retired officer of the Army is not entitled .to the full pay and emoluments of his grade whilst not as. signed to duty. (1866) 11 Op. Atty. Gen. 524.

Duty on court-martial.--Retired officers
of the Army are officers in the military
service of the United States within the
meaning of A. W. 4, ch. 52, post, and an
order assigning such officers to a court.
martial was within the authority conferred
upon the Secretary of War by this section,
Kahn v. Anderson (1921), 254 U. S.
65 L. Ed. 288; U. S. v. Tyler (1881),
103 U. S. 244. See also notes to A. W.
3, ch. 52, post.

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2432. Assignment to active duty of Class B officers.

If an officer is thus retired before the completion of thirty years' commissioned service, he may be employed on such active duty as the Secretary of War considers him capable of performing until he has completed thirty years' commissioned service.

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

2433. Detail of a retired officer as Adjutant-General of the District of Columbia Militia.—That the President of the United States may detail as Adjutant-General of the District of Columbia militia any retired officer of the Army who may be nominated to the President by the brigadier-general commanding the District of Columbia militia, said retired officer while so detailed to have the active service pay and allowances of his rank in the Regular Army. Act of June 6, 1900 (31 Stat. 671).

2434. Detail of retired officers to duty with the organized militia.-
Provided, That in addition to the detail of retired officers now authorized by
law, it shall hereafter be lawful for the Secretary of War to detail, whenever
in his judgment the public interests require it, not exceeding twenty retired
officers for service in connection with the organized militia in the States or
Territories, upon the request of the governor thereof, and such retired officers
shall be entitled, while so employed, to receive the full pay and allowances of
their respective grades. Act of Mar. 2, 1903 (32 Stat. 932).

But see 2353, ante.
2435. Detail of retired officer as post commander.-

Provided, That when by reason of the movement of troops a post is temporarily left without its regular garrison and with no commissioned officer except of the Medical Reserve Corps on duty thereat, the Secretary of War may assign a retired officer of the Army, with his consent, to active duty in charge of such post. The officer so assigned shall perform the duties of commanding officer and also any necessary staff duties at such post, and shall, while in the performance of such duties, receive the full pay and allowances of his grade, subject to the limitations iniposed by the Act of March second, nineteen hundred and five, and the Act of June twelfth, nineteen hundred and six, which limitations shall include the grades of brigadier general, major general, and lieutenant general. Act of Aug. 29, 1916 (39 Stat. 627).

The provisions of act of Mar. 2, 1905, mentioned in this section, are set forth 1652, ante. The provisions of act of June 12, 1906, also mentioned, were superseded by act of July 9, 1918 (40 Stat. 890), amending sec. 24, act of June 3, 1916 (39 Stat. 183), stricken out by sec. 24, act of June 4, 1920 (41 Stat. 771). See 1651, ante.

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2436. Pay of retired artillery officers assigned to active duty.- *

Protided further, That in determining the rights of officers in the last proviso of section twenty-four of said national defense Act, oflicers retired before the separation of the Field Artillery from the Coast Artillery shall be regarded as having belonged to the Field Artillery:

Act of Aug. 29, 1916 (39 Stat. 623). See note to 2435, ante. See also 2995, post. 2437. Detail of retired officers as acting quartermasters.- *

* Prorided, That assignments which have been, or may hereafter be made, of retired officers of the Army to active duty as acting quartermasters shall be regarded as assignments to staff duties not involving service with troops within the meaning of the Act of Congress approved April twenty-third, nineteen hundred and four. Act of May 12, 1919 (40 Stat. 48). The provision referred to is set forth 2431, ante.

2438. Assignment of retired Engineer officers to active duty.-That when retired officers of the Army, any portion of whose active service was in the Corps of Engineers, are called back into active service they shall be eligible to fill any position required by law to be filled by an officer of the Corps of Engineers. Joint res. 6, June 15, 1917 (40 Stat. 231). 2439. Status of retired officers assigned to active duty.

That when any retired officer of the Army is, in the discretion of the President, employed on active duty and assigned to duty in an arm, corps, department, or organization, he shall, for all purposes, except promotion, be considered an officer of such arm, corps, department, or organization while so serving, and shall be an extra number therein.

Chap. XX, act of July 9, 1918 (40 Stat. 893). But see 2299, ante. 2440, Transfer of retired officers to the active list.

Provided, That hereafter the President be, and he is hereby, authorized, by and with the advice and consent of the Senate, to transfer to the active list of the Army any officer under fifty years of age and with rank not above that of captain who may have been transferred heretofore or who may be transferred hereafter for physical disability from the active to the retired list of the Army by the action of any retiring board : Provided, That such officer shall be transferred to the place on the active list which he would have had if he had not been retired, and shall be carried as an additional number in the grade to which he may be transferred or at any time thereafter promoted : Provided further, That such officer shall stand a satisfactory medical and professional examination for promotion as now provided for by law : Provided further, That the President be, and he is hereby,authorized within two years of the approval of this Act, by and with the advice and consent of the Senate, to transfer to the active list of the Army any officer who may have been transferred heretofore for physical disability from the active to the retired list of the Army by the action of any retiring board:

Provided further, That any officer who may have already been transferred from the retired list to the active list, shall receive the benefits of this Act. Act of Mar. 4, 1915 (38 Stat, 1068-1069).

Former officers of the Regular Army and retired officers may be reappointed to the active list, if found competent for active duty, and shall be commissioned in the grades determined by the places assigned to them on the

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promotion list under the provisions of section 24a hereof.

Sec. 24e, added to the act of June 3, 1916, by sec. 24, uct of June 4, 1920 (41 Stat. 774).

But see 2282, ante.

2441. Return to active duty of officers retired for disability. That the Serretary of War shall make a list of all officers of the Army who have been placed on the retired list for disability and shall cause such officers to be examined at intervals as may be advisable, and such officers as shall be found to have recovered from such disabilities or to be able to perform service of value to the Government sufficient to warrant such action shall be assigned to such duty as the Secretary of War may approve. Act of Aug. 29, 1916 (59 Stat. 629)

2442. Transfer to the active list of retired officers who served with the Isthmian Canal Commission.—That hereafter the President be, and he is hereby, authorized, within one year of the approval of this Act, by and with the advice and consent of the Senate, to transfer, upon application, to the active list of the Army any officer under fifty years of age who may have been transferred heretofore from the active to the retired list of the Army under the Act to provide for recognizing the services of certain officers of the Army, Navy, and Public Health Service for their services in connection with the construction of the Panama Canal, and for other purposes, approved March fourth, nineteen hundred and fifteen : Provided, That such officers shall take rank at the foot of the respective grades which they held at the time of their retirement and shall be carried as an additional number in the grade to which he may be transferred or at any time thereafter promoted, and shall be promoted on the same date as the officer next above him in rank, and shall be commissioned in the arm or department of the Army from which he was retired : Provided further, That such officer shall stand a satisfactory medical examination, and when promoted shall stand the medical and professional examinations provided for by law: And provided further, That any officer transferred to the active list under this Act shall not again be entitled to the benefits of the Panama Canal Act described above, except when retired for age or for physical disability incurred in the line of duty. Act of f'eb. 23, 1917 (39 Stat. 937).

But see 2262, 2282, ante.

2443. Employment of retired officers of Army or Navy on river and harbor improvement.—That section two of the Aet making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and ninety-five, and for other purposes, approved July thirty-first, eighteen hundred and ninety-four, shall not be so construed as to prevent the employment of any retired officer of the Army or Navy to do work under the direction of the Chief of Engineers of the United States Army in connection with the improvement of rivers and harbors of the United States, or the payment by the proper officer of the Treasury of any amounts agreed upon as compensation for such employment. Sec. 7, act of June 3, 1896 (29 Stat. 235).

For sec. 2, act of July 31, 1894 (28 Stat. 205), see 72, ante.

2444. Assignment to active duty as members of board of road commissioners for Alaska._*

Provided, That hereafter the Secretary of War may, in bis discretion, assign suitable retired officers of the Army to active duty as members of the board of road commissioners of Alaska, and in the case of any officer so assigned the provisions of so much of the Act of Congress approved April twenty-third, nineteen hundred and four, entitled “An Act making appro

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priations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and five, and for other purposes," as relates to the assignment of retired officers to active duty shall apply. * Act of March 8, 1911 (36 Stat. 1052).

The provisions of act Apr. 23, 1904, mentioned in this provision, are set forth, 2431, ante.

2445. National defense act not to effect separation.- Nothing in this Act shall be held or construed so as to discharge any officers from the Regular Army or to deprive him of the commission which he now holds therein. Sec. 127, act of June 3, 1916 (39 Stat. 217).

2446. Dismissal of officers absent without leave.--The President is authorized to drop from the rolls of the Army for desertion any officer who is absent from duty three months without leave; and no officer so dropped shall be eligible for re-appointment. And no officer in the military, or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof. R. S. 1229.

That the President be, and he is hereby, authorized to drop from the rolls of the army any officer who is absent froir duty three months without leave, or who has been absent in confinement in a prison or penitentiary for more than three months after final conviction by a civil court of competent jurisdiction; and no officer so dropped shall be eligible for reappointment. Act of Jan. 19, 1911 (36 Stat. 894).

Similar provision appears in A. W. 118, ch, 52, post.

Notes of Decisions

What constitutes a dismissal.— The acceptance of a resignation, and the appointment of an officer to fill the vacancy created by such resignation, is not a dismissal within the meaning of this section. Blake v. U. S. (1878), 14 Ct. Cl. 462.

Where an Army officer was sentenced to dismissal from the service, and the sentence, without having been approved by the President, was carried into effect under orders of the War Department, held, that the subsequent recognition by the President of the vacancy by making an appointment or nomination of a person to fill the place of such officer, operated as a confirmation of the sentence and orders.

(1879) 16 Op. Atty. Gen. 298.

Construction of section in general.—The first part of R. S. 1229, which authorizes the President to drop from the rolls for desertion any officer absent from duty three months without leave, was taken from sec. 17, act of July 15, 1870. The part which prohibits the dismissal from service, in time of peace, of any officer, except pursu. ant to the sentence of a court-martial, was taken from sec. 5, act of July 13, 1866. Under sec. 12, act of July 17, 1862 (12 Stat. 596), the President bad authority "' to dis

miss and discharge from the military sery. ice either in the Army, Navy, Marine Corps, or Volunteer force, in the United States service, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service.” Sec. 12, act of Mar. 3, 1865 (13 Stat. 489), which was incorporated into R. S. 1230, post, 2447, gave an oflicer, dismissed by order of the President, the right to demand a courtmartial, etc. As to whether the second half of R. S. 1229, and post, 2447, operated so as to make a dismissal by the President for desertion, as authorized by the first half of this section, inoperative without a court-martial, the Supreme Court of the United States, in 1880, held that the last half of R. S. 1229 did not take away from the President the power, with the advice and consent of the Senate, to supersede an otticer in the military or naval service by the appointment of some one in his place, and that said provision only restricted the power of the President so as to prohibit him from summarily, in time of peace, dis. missing officers, whenever in his judgment the interest of the service required it to be done, without the concurrence of the Sen

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ate, except in pursuance of the sentence of a court-martial, or in commutation thereof. In this decision of the Supreme Court the question of the power of the President to dismiss for desertion was not involved. See Blake v. U. S. (1880), 103 U. S. 227, 235, 26 L. Ed. 462. See, also, Keyes v. U. S. (1883), 3 Sup. Ct, 202, 204, 109 U. S. 336, 27 L. Ed. 954 ; Mullan v. Same (1891), 11 Sun. C. 788, 789, 140 U. S. 240, 35 L. Ed. 489; Fletcher v. Same (1891), 26 Ct. Cl. 541; Newton v. U. S. (1883), 18 Ct. Cl. 435; (1881) 17 Op. Atty. Gen. 13.

In Fletcher v. U. S. (1891), 26 Ct. Cl. 541, it was held that the second part of this section was founded on the constitutional power of Congress “to make rules for the Gorernment and regulation of the land and naval forces," and was a restriction upon the power of the President.

Leave with void conditions.-Accepting a leave with the condition affixed that it

be without pay does not amount to absence without leave. U. S. v. Andrews (1916), 240 U. S. 90

Determination of fact of desertion. The jurisdiction to find the fact of desertion is vested in the President alone, and

his decision can not be reviewed by the Court of Claims. Newton v. U. S. (1883), 18 Ct. CI. 435.

Officer appointed during Senate recess.An officer appointed and commissioned during a recess of the Senate comes within this section as to dismissal without courtmartial. O'Shea v., U. S. (1893), 28 Ct. CI. 392.

Cadets of Military Academy,-A cadet in the Military Academy at West Point is not an officer within the meaning of this section, and the President may dismiss him summarily, without the intervention of a court-martial. Hartigan v. U. S. (1905), 25 Sup. Ct. 204, 205, 196 U. S. 169, 49 L. Ed, 434, affirming (1903), 38 Ct. CI. 346,

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2447. Officers dismissed by the President may demand trial.--When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a courtmartial, to try such officer on the charges on which he shall have been dismissed. And if a court-martial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. R. S. 1230.

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Notes of Decisions.

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Validity. This section held unconstitutional and inoperative on two grounds: (1) Tbat where an officer was dismissed from the Army in time of war by a valid order of the President, he may only be reappointed in the mode prescribed by the Constitution (U. S. V. Corson

(1885), 114 U. S. 619, 622); and (2) it has been superseded by A. W. 118, enacted Aug. 29, 1916 (and reenacted with but the addition of one word, June 4, 1920), post ch. 52. Wallace v. L'. S. (1920), 55 Ct. Cl. 396.

Scope and construction.—The pbrase "any officer dismissed," being prospective only in its meaning, does not apply to an officer dismissed before the passage of the act. (1878) 16 Op. Atty. Gen. 599.

Time for application for court-martial. A delay of nine years in asking for a trial by court-martial is unreasonable. Newton v. U. S. (1883), 18 Ct. Cl. 435.

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2448. Restoration of dismissed officers.-No officer of the Army who has been or may be dismissed from the service by the sentence of a general court-martial, formally approved by the proper reviewing authority, shall ever be restored to the military service, except by a re-appointment confirmed by the Senate. R. S. 1228.

Notes of Decisions.

Restoration to rank.--The President, by and with the advice and consent of the Senate, may, by reappointment and commission, restore lost rank, including seniority, to an officer of the Army or Navy. (1856) 8 Op. Atty. Gen. 223. If, bowever, an officer's connection with the Army be ep

tirely and legally severed, the only way by which he can again enter the Army is by the appointment of the President, by and with the advice and consent of the Senate. And, so, where an officer has been summarily dismissed by order of the President, he can not be reinstated by the President's

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