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Naval officers may be when

shall, if practicable, be officers of the Marine Corps, senior to the officer to be examined, and two of whom shall be medical officers of the Navy:

Provided further, That when not practicable to detail Wux. detailed, officers of the Marine Corps as members of such examining

boards, officers of the line in the Navy shall be so detailed. Title 15, chap.10. SEC. 1624, ART. 10. Any commissioned officer of the

Navy or Marine Corps who, having tendered his resignaDesertion by tion, quits his post or proper duties without leave, and with

. Aug. 5, 1861, s. intent to remain permanently absent therefrom, prior to 2, v. 12, p. 316.

due notice of the acceptance of such resignation, shall be deemed and punished as a deserter.

Sec. 1624.

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Title 15, chap. 9. SEC. 1622. The commissioned officers of the Marine Corps Retirement.

shall be retired in like cases, in the same manner, and with Aug. 3, 1861, ss. the same relative conditions, in all respects, as are pro15.0 17; Y.;. a vided for officers of the Army, except as is otherwise 289; July 171862, 8.12,7. 12, p. 596, provided in the next section. Jan. , 1870, v. 16. p. 62; July 15, 1870, s. 4, v. 16, p. 317; June 10, 1872, s. 1, v. 17, p. 378.

Retiring board, how composed.

SEC. 1623. In case of an officer of the Marine Corps, the Aug. 3, 1861, 8. retiring board shall be selected by the Secretary of the Navy, 17, v. 12, p. 289.

under the direction of the President. Two-fifths of the See note 1.

board shall be selected from the Medical Corps of the Navy, and the remainder shall be selected from officers of the Marine Corps, senior in rank, so far as may be, to the officer

whose disability is to be inquired of, Title 14, chap. 2. The following sections relate to retirement in the Army:

Retirement on SEC. 1243. When an officer has served forty consecutive own application.

Aug. 3, 1861, s. years as a commissioned officer, he shall, if he makes appli. Jul 152, 57.289: cation therefor to the President, be retired from active

, 1870, 88. 4, 5, v. 16, p. 317. service and placed upon the retired list. When au otficer

30 1882, and Mar. 3, has been thirty years in service, he may, upon his own

aplication, in the discretion of the President, be so retired, and placed on the retired list.

Note 1.-- Retirement in the Marine Corps is governed by secs. 1622, 1623, R. S.; i. e., officers are to be retired in like cases and in the same manner and with the same relative conditions in all respects" as officers of the Army. Wholly retired, to receive one year's pay and emoluments; otherwise retired, 75 per cent. of the pay of the actual rank held by them at the time of retirement.-(Op., XV, p. 443, Deveus, Jan. 31, 1878. Welles Case.)

1883.

or when 62.

See June 30,

1883.

Retirement

SEC. 1244. When any officer has served forty-five years

After 45 years, as a commissioned officer, or is sixty-two years old, he may July 17, 1802, 8. be retired from active service at the discretion of the Presi. 12, v. 12, p. 596. dent.

1882, and Mar. 3, On and after the passage of this act when an officer has Juno 30, 1882. served forty years either as an officer or soldier in the reg. Retirement afular or volunteer service, or both, he shall, if he make ter 40 years'sery:

on own appli. application therefor to the President, be retired from active cation, service and placed on the retired list, and when an officer compulsory at 64 is sixty-four years of age, he shall be retired from active years of age.

June 30, 1882, service and placed on the retired list.

ch. 254, s. 1. Nothing contained in the above “ shall be so construed Mar. 3, 1883. as to prevent, limit or restrict retirements from active seryice in the Army, as authorized by law in force at the date L., p. 457. of the approval of said act," retirement under the provi. sions thereof “ being in addition to those theretofore authorized by law."

That all officers who have been appointed to any corps July 26, 1894. of the Navy after service in a different branch of the Navy, 28 Stat. L., 123. shall have all the benefits of their previous service in the 1895, p.2

1895, p. 206–207.) same manner as if said appointments were a re-entry into Navy longevity the Navy.

97, par. 5 (1 Supp.

Mar.3, 1883, ch. 93, 8. 1. 22 Stats.

1892

pay

Mar. 3, 1883, ch.

R. S., 401); 151 U. S., 362; 152 U.S., 384.

See note 2.

Aug. 3, 1861, .

Board, and powers and du.

SEC. 1245. When any officer has become incapable of For disability: performing the duties of his office, he shall be either retired 16, v. 12, p. 289. from active service, or wholly retired from the service, by the President, as hereinafter provided.

SEC. 1247. The members of said board shall be sworn in every case to discharge their duties honestly and ties of. impartially.

SEC. 1248. A retiring board may inquire into and determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office, and shall have such powers of a court inartial and of a court of inquiry as may be necessary for that purpose.

SEC. 1249. When the board finds an officer incapacitated for active service, it shall also find and report the cause which, in its judgment, has produced his incapacity, and whether such cause is an incident of service.

SEC. 1250. The proceedings and decision of the board shall be transmitted to the Secretary of War, and shall be laid by him before the President for his approval or disapproval and orders in the case.

SEC. 1251. 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.

Note 2. -See Titlos "Line officers," "Pay Corps."

Engineer Corps,"

" Medical Corps," and

Rank.

Status.

bilities.

SEC. 1252. When the board finds that an officer is ivcapacitated 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. Officers entitled

SEC. 1253. Except in cases where an officer may be reto a hearing. Aug. 3, 1861, s. tried by the President upon his own application, or by

, 17, v. 12, p. 290.

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 officer, in any case, be wholly retired from the service, without a full and fair hearing before an Army retiring board, if, upon due summons, he demands it.

SEC. 1254, Officers hereafter retired from active service June 10, 1872, v. 17, p. 378 : Mar.3, shall be retired upon the actual rank held by them at the 1875, v: 18, p. 512 date of retirement. See Mar. 3, 1875.

SEC. 1255, Officers retired from active service shall be Aug. 3, 1861, 8. 16, v. 12, p. 289;

withdrawn from command and from the line of promotion. July 17, 1862, s. 12, v. 12, p. 596. Rights and lia

SEC. 1256. Officers retired from active service shall be Aug. 3, 1861, s. entitled to wear the uniform of the rank on which they 18, v. 12, p. 290.

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.

SEC. 1257. When any officer in the line of promotion is Ibid., s. 16.

retired from active service, the next officer in rank shall be promoted to his place, according to the established rules of the service; and the same rule of promotion shall be applied, successively, to the vacancies consequent upon such

retirement. Title 14, Chap. 3. SEC, 1274. Officers retired from active service shall rePay. ceive seventy-five per centum of the pay of the rank upon

July 15, 1879;S: which they are retired. 24, v. 16, p. 320; Mar. 3, 1875, v. 18, p. 512.

See Mar.3, 1875. See note 3. Wholly retired. Aug. 3, 1881, 8.

SEC. 1275. Officers wholly retired from the service shall 17, v. 12, p. 290. be entitled to receive, upon their retirement, one year's pay

and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their

retirement. Mar. 3, 1876.

That all officers of the Army who have been heretofore Rank and pay retired by reason of disability arising from wounds received

Vacancies.

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

under certain conditions.

Note 3.-An officer of the Army who is "retired from active service" is still in the military service of the United States, and, in addition to the percentage of pay of the rank on which he was retired, is entitled to the 10 per cent allowed by R. S. 1262, 1263 for cach term of five years'service. (Otto, 105, 244, Tyler v. U.S.; C.C., XVI, 223.)

83, 199, and 407.

note 4

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. Seo Opio, five years at the date of their retirement; nor to those Mar. 3, 1895, s. retired officers who had lost an arm or leg, or has an arın 2, S:18.076512 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 (one), chapter thirty-eight, act of March thirty, eighteen hundred and sixty-eight [$ 1223]: 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 retire. ment; and that all acts or parts of acts inconsistent here. with be, and are hereby, repealed.

PAY, RATIONS, AND MILEAGE OF THE MARINE CORPS.

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SEC. 1612. The officers of the Marine Corps shall be enti. Title 15, chap. 8. tled to receive the same pay and allowances, and the Pay of Marine

Corps. Note 4.-Under section 1253 an officer is entitled to appear before the board (with counsel, if desired), and to introduce testimony of bis own, and cross-examine the witnesses examined by the board, including the medical members of the board who may have taken part in the medical examination and have stated or reported to the board the result of the sanie. If the officer does not elect to appear before the board when summoned, be waives the right to a hearing, and can not properly take exception to a conclusion arrived at in his absence. (Winthrop's Digest, p. 432.)

A retired officer in the Army may draw his pay as such, and may also draw the salary of a civil office which he may hold under the Government (not diplomatic or consular), assuming always that the duties of the civil office are performed under and by virtue of a commission appointng him to that office which he holds in addition to his rank as a retired officer. (Op., XV, p. 500, June 11, 1877, Devens. See ()p.. XV, p. 407, Dec. 11, 1877, on the subject of retired officers accepting positions in the diplomatic or consular service.) the service only by a new appointment. He can not be reappointed to the retired

An officer, on being wholly retired, becomes a civilian, and can be readmitted to list, but must first be appointed on the active list to a certain rank. None but a commissioned officer on the active list of the Army can be placed on the retired list. A civilian can not. (Winthrop's Digest, p. 433; Op., XIV, 506.)

The finding of a retiring board under sec. 1521 is in the nature of a recommendation, and until it is “approved by the President" no retirement can be ordered thereupon. (Winthrop, 431.). It does not affect the authority to retire, that the incapacity of the officer may have resulted from a wound received by him while in the volunteer service before entering the Regular Army. (Idem.)

Under section 1252 an officer may, in the discretion of the President, legally be retired by reason of incapacity resulting from habitual drunkenness. (Winthrop's Digest, p. 432.)

Under section 1275 an officer wholly retired is entitled to receive a sum equal to the total of one year's pay and all the pecuniary allowances of an officer of his rank. The fact of being under a sentence of suspension from rank and pay does not affect bis right to receive such full sum pon the retirement. (Winthrop's Digest, 432.)

Held, that a retired officer of the Army, though not actively employed, was an "officer in the employment of the Government," in the sense of this statute. Sec. 1782, receiving compensation for services in matters in which the Government is interested. (Winthrop's Digest, p. 434.)

Held, that retired officers of the Army, though relieved in general from active military service, were nevertheless, as a part of the Army, properly exempt from the public obligations peculiar to civilians, and were, therefore, no more liable than oflicers on the active list to be required to serve on juries. The question, however, of exemption is one for the determination of the courts. Advised, in such a case, that the officer appear before the court, in compliance with the summons, and there urge to the judge the objection arising from his military status to his serving on a civil jury, (Winthrop's Digest, 433.)

and note 1.

a

*

*

Marine band.

June 30, 1834, 8. enlisted men shall be entitled to receive the sanie pay and 5, v4, . 713; Aug. 5, 1854, 6. 1, bounty for re-enlisting, as are or may be provided by or in v. 10, p. 586. See tables, post,

pursuance of law for the officers and enlisted men of like

grades in the infantry of the Army. Sapp. R. S., vol.

That all officers who have been or may be appointed to 2, p. 517. Benefit of pre

any corps of the Navy or to the Marine Corps after service vious servico in a different corps of the Navy or of the Marine Corps shall to officers reap. have all the benefits of their previous service in the same

. 1894: July 26, manner as if said appointments were a reentry into the ch. 165, par. 1, ante, p. 206.

Navy or into the Marine Corps. July 26, 1894.

That the pay of the drum major shall be the Marine Corps. same as that now established, or that may be hereafter

Pay of drum- established, for first sergeants in the Marine Corps of the major. R. S., dec. 1612. same length of service.

SEC. 1613. The marines who compose the corps of musi. Aug. 5, 1854, 8. 1. 9. 10, p. 586; cians known as the “Marine band” shall be entitled to Aug. 18, 1856, 8.5, receive at the rate of four dollars a month, each, in addi. v. 11, p. 118.

tion to their pay as non-commissioned officers, musicians, or privates of the Marine Corps, so long as they shall perform, by order of the Secretary of the Navy, or other superior officer, on the Capitol grounds or the President's grounds.

SEC. 1615. The non-commissioned officers, privates, and July 1, 1797,8.6. musicians of the Marine Corps shall, each, be entitled to 1; 1, P. 524; July receive one Navy ration daily. 11, 1798, s. v. 1, 2,

Supp. R. S., vol. And hereafter officers of the Marine Corps traveling under 2, p. 517. Mileage to Ma- orders without troops shall be owed the same mileage rine Corps offi

as is now allowed officers of the Navy traveling without troops.

troops. R. S., 9 1566. June 30, 1876, ch. 159. par. 1 (1 Supp. R. S., 109).

and no law shall be construed to entitle enlisted marines on shore duty to any rations or commutation therefor other than such as now are or may hereafter be allowed to enlisted men in the Army.

Rations of en. listed men.

P. 595.

cers

without

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Enlisted

ma. * rines' rations.

Seo note 2.

*

No law shall be construed to entitle enlisted marines on rines-rations. Supp. R. S., vol. shore duty to any rations or commutation therefor other 2, p. 599. R.S., s. 1615.

than such as now are or may hereafter be allowed to 1882, July 16, enlisted men in the Army. ch. 195, par. 2,

Enlisted

ma

p. 37.

See note 3.

Rations to ma- Note 1.-An officer in the Marine Corps, attached to a sea-going vennel, is not rine officers. entitled to the ration allowed by R. S., sec. 1578, to a naval officer so attached; he is,

C. C., v. 18, p. by R. S., sec. 1612, subjected to the provisions of R. S., sec. 1269. The various stat. 625. Reid's Case, utes prior to the Revised Statutes regulating allowances of rations to officers of the

Army, Navy, and Marine Corps are considered and examined in this opinion.

Note 2.-The same provision occurs in previous appropriation acts. See 1893,
March 3, ch. 212, and 1894, July 26, ch. 165.

Note 3.-See 1893, March 3, ch. 212, par. 7, p. 131, for previous acts containing this provision. March 3, 1893, rations to enlisted men in the Army are fixed by Ř. S., sec. 1293, and 1892, July 16, ch. 195, par. 2, p. 37.

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