wholly present and prospective in its operation and effective only from the date of its finality, without affecting the legality of the prior marital status of the parties. On the other hand, the annulment of a marriage is granted only upon a showing that some preexisting impediment as to either or both the persons precluded the contraction of a legal marriage between the parties involved, and that for that reason no valid marriage between them actually was consummated. A decree of annulment, unlike one for divorce, is retroactive in its effect and operation to and from the inception of the so-called marriage, and serves to strip the mantle of legal sanction from a relation ostensibly lawful but actually spurious. Ridgely v. Ridgely, 79 Maryland 298, 25 L. R. A., 800; Millar v. Millar, 175 California 797, 167 Pacific 394. In the latter case the court said:

* Strictly speaking the word "divorce" means a dissolution of the bonds of matrimony, based upon the theory of a valid marriage, for some cause arising after the marriage, while an annulment proceeding is maintained upon the theory that, for some cause existing at the time of marriage, no valid marriage ever existed. This is true even though the marriage be only voidable at the instance of the injured party, or * * "capable of being annulled."

And the decree of nullity in such a proceeding determines that no valid marriage ever existed.

And where the remedy of divorce is available to plaintiff on the grounds alleged in an action for annulment, the courts ordinarily will not assume jurisdiction of the cause for annulment, but will leave the plaintiff to the other remedy. Selby v. Selby, 27 R. I. 172, 61 Atl. 142. Applying the principle and distinction thus stated to the record here presented, it immediately is apparent that Lieutenant Foley, having gone through a form or ceremony of marriage with Nancy Owen, went into the Florida Court, of his own motion (he was plaintiff in the cause) and petitioned said court, not for divorce from his wife but for the annulment of his purported marriage to Nancy Owen. Both parties were representated by counsel and presumably both parties introduced evidence before the Special Master bearing upon the actual status of legality of the alleged marriage relation theretofore entered into between them. The Special Master made his report to the court, based upon that evidence, "and the same having been duly considered" the court considered, ordered and decreed "that the equities are with the plaintiff" and that the "purported marriage as alleged in the bill of complaint" was "void ab initio as if the same had never been entered." The import of this language is conclusive and inescapable. Its simple meaning is that the purported marriage between Francis D. Foley and Nancy Owen which had been entered into in Warrenton, Virginia, on January 25, 1940, was not a valid marriage and that Nancy Owen had not thereby become Foley's lawful wife, nor he her lawful husband. The evidence before the court is not before this office, but it may be presumed that it was convincing and sufficient to support the judgment and decree of the court. And,

since Foley himself instituted the action for annulment the inference is that he presented adequate evidence that by reason of some preexisting impediment, Nancy Owen was not capable, at the time of the purported marriage, of contracting a legally valid marriage with him. But, however that may be, the effect of the court's decree of annulment was to hold that Nancy Owen was not and never had been Lieutenant Foley's lawful wife.

As said above, the dependency statutes require the existence of a lawful wife to entitle an officer to dependency allowances, and it follows from the foregoing that since Lieutenant Foley at no time had a lawful wife, he was not entitled to be paid such allowances on account of one during the period involved, and such payments to him were therefore erroneous and unauthorized. Such being the case, Lieutenant Foley should be required to make restitution of the amount so paid, being ex aequo et bono liable to refund them. Heidt v. United States, 56 F. (2d) 559; Wisconsin Central Railroad v. United States, 164 U. S. 190, 212; United States v. Wurts, 303 U. S. 414, 415; United States v. Burchard, 125 U. S. 176, 180-181. Accordingly, a charge will be raised in the General Accounting Office for the amount paid him on this account and the assistance of the Navy Department in securing the refundment of the money will be appreciated.

(B-28760)

PAY_LONGEVITY-REGULAR ARMY RESERVE

Prior inactive service in the Regular Army Reserve, established by the act of April 25, 1938, may not be counted by an enlisted man thereof, on active duty, in computing his longevity pay under section 9 of the Pay Readjustment Act of 1942.

Assistant Comptroller General Elliott to Lt. Col. D. J. Cragun, U. S. Army, October 6, 1942:

There has been considered your letter of September 4, 1942, in which you request advance decision as to whether you are authorized to pay a voucher, forwarded therewith, in favor of Corporal Samuel B. Whitmire, Regular Army Reserve, for the difference between pay of a corporal with over 6 years' service, and pay received as a corporal with over 3 and less than 6 years' service for the period June 1, 1942, to July 31, 1942. It is stated on the voucher that Whitmire served as an enlisted man in the Regular Army from April 24, 1934, to April 23, 1937, enlisted in the Regular Army Reserve April 4, 1939, and was called to active duty February 10, 1941. Apparently this active duty has been continuous to date. The claimant contends that full credit should be allowed him for all time served in the Regular Army Reserve, which would give him 6 years' service as of April 3, 1942.

The Regular Army Reserve, abolished by the act of June 4, 1920, 41 Stat. 775, was reestablished by the act of April 25, 1938, 52 Stat. 221. The latter act reads as follows:

Under such regulations as the President may prescribe there shall be organized and maintained as a part of the Regular Army and in addition to the authorized strength thereof otherwise provided a Regular Army Reserve. Any person who has served in the Regular Army and who has been honorably discharged therefrom, and who is less than thirty-six years of age may, under regulations prescribed by the President, be reenlisted for the Regular Army Reserve. Each soldier thus reenlisted shall be entitled to receive, during each year of his service in the Regular Army Reserve, an enlistment allowance of $24 per annum payable in installments under such regulations and conditions as the President may prescribe. Service in the Regular Army Reserve not on active duty shall confer no right to pay, longevity pay, retirement or retired pay, or any other emoluments upon members thereof except as provided in this section; and members of the Regular Army Reserve shall become entitled to pensions only due to disability incurred while on active duty in the service of the United States. Active duty for such purposes shall be deemed to begin on the date of acceptance for such duty following compliance with the order to report for active duty and shall terminate when relieved or discharged from such duty. Members of the Regular Army Reserve may be ordered to active duty only in case of emergency declared by the President and when so ordered shall be furnished transportation and subsistence allowances at Government expense from their homes within the continental limits of the United States or its possessions to points where ordered to report for active duty. In addition, if found qualified and accepted for active duty following such order they shall receive a sum at the rate of $3 per month for each month they have been enlisted in the Regular Army Reserve but not to exceed $150. While on active duty they shall have the same status and receive only the same pay and allowances provided by law for enlisted men of the active Regular Army of like grade and length of service. In computing length of service for pay purposes, time spent on active duty only will be counted. Within six months after the termination of an emergency declared by the President, they shall be placed in an inactive status or discharged, whichever is appropriate. Members of the Regular Army Reserve shall be subject to military law only from the date they are required to obey an order to report for active duty. Section 14 of the act of June 16, 1942, 56 Stat. 367, Public Law 607, 77th Congress, effective June 1, 1942, provides in part:

Officers, warrant officers, and enlisted men of the Reserve forces of any of the services mentioned in the title of this Act, when on active duty in the service of the United States, shall be entitled to receive the same pay and allowances as are authorized for persons of corresponding grade and length of service in the Regular Army, Navy, Marine Corps, Coast Guard, or Public Health Service.

Section 9 of the above act, 56 Stat. 363, establishes rates of pay for enlisted men of the Army, Navy, Marine Corps, and Coast Guard, and further provides:

Every enlisted man paid under the provisions of this section shall receive an increase of 5 per centum of the base pay of his grade for each three years of service up to thirty years. Such service shall be active Federal service in any of the services mentioned in the title of this Act or Reserve components thereof; service in the active National Guard of the several States, Territories, and the District of Columbia; and service in the enlisted Reserve Corps of the Army, the Naval Reserve, the Marine Corps Reserve, and the Coast Guard Reserve. The act of April 25, 1938, hereinbefore quoted, provides:

Service in the Regular Army Reserve not on active duty shall confer no right to pay, longevity pay, retirement or retired pay, or any other emoluments upon members thereof except as provided in this section; While on active duty they shall have the same status and receive only the same pay and allowances provided by law for enlisted men of the active Regular Army of like

grade and length of service. In computing length of service for pay purposes, time spent on active duty only will be counted. [Italics supplied.]

Here is a clear and explicit restriction of longevity credit for Regular Army Reserve service to time spent on active duty. This restriction is continued in the act of June 16, 1942, insofar as enlisted men of the Regular Army are concerned, by the provision in section 9 of that act that such men may count, for longevity, active Federal service in any of the services mentioned in the title of the act or the reserve components thereof. The Army is one of the services so mentioned; the Regular Army Reserve is a reserve component thereof. Act of April 25, 1938, supra. Thus an enlisted man of the Regular Army may not count, for longevity pay purposes, prior inactive service in the Regular Army Reserve.

Section 14 of the act of June 16, 1942, supra, places members of the Regular Army Reserve, while on active duty, on a parity, as to pay and allowances, with members of the Regular Army of corresponding grades and length of service. The latter may not include, in computing length of service, inactive service in the Regular Army Reserve. Accordingly, the former may not be credited with such inactive service. To hold otherwise would be to allow a member of the Reserve more longevity pay than accrues to an enlisted man of the Regular Army with exactly the same length and kind of prior service. Obviously, this is not the intent of section 14.

Accordingly, you are advised that in the computation of longevity pay of an enlisted man of the Regular Army Reserve, on active duty, prior inactive service in the Reserve may not be included. The voucher transmitted by you may not be paid, and is retained in this office.

(B-28543)

SHIPMENT HOME OF CIVILIAN CLOTHING OF SELECTEES, ETC.TRANSPORTATION PROCEDURE

If an appropriation is available for shipping home the civilian clothing of selectees and certain other personnel at Government expense, the procedure proposed is approved whereby the War Department will not issue Government bills of lading but will make the shipments by prepaid express, provided the provision authorizing shipment, with articles authorized to be shipped at Government expense, of other articles at the expense of the shipper be either eliminated or clarified to permit of accurate verification of the Government's share of the transportation charges; and provided the carrier be required to support its bills with consignees' receipts for delivery of shipments at destination. Assistant Comptroller General Elliott to the Secretary of War, October 7, 1942: Reference is made to your letter dated August 27, 1942, as follows:

Army Regulations provide that enlisted men will send their civilian clothing to their homes or otherwise dispose of it, and that cost of shipment will be borne by the Government. (See Sec. II, Cir. No. 122; Sec. I, Cir. No. 181; and Sec. VII, No. 235, W. D., 1942.)

Issuance of Government bills of lading to cover such of those shipments as normally move by express is a paper-work undertaking not only out of propor

tion to the importance of the shipments, but impossible without material outlays for personnel, space, and equipment. Elimination of the use of express service for such shipments will (1) deprive shippers of inherent advantages which express service offers in many instances, evidenced by choice of such service by this class of shipper for a material number of such shipments, and (2) result in ultimate withdrawal of certain advantageous express facilities at points of shipment, which are used for both outbound and inbound shipments. It is hereby administratively determined that, in connection with shipments of civilian clothing of members of forces under the jurisdiction of the War Department, it is against the best interest of the Government:

1. To issue Government bills of lading for such shipments by express.

2. To require proof of delivery of all such shipments by express, as a condition precedent to payment of charges.

3. To eliminate or limit the use of express service for such shipments, other than to the extent to which it may be limited by considerations of service, economy, and facility, under normal competitive conditions not artificially influenced by special Governmental requirements.

It is also hereby administratively determined that Item 1 next above is, in addition, impracticable. It is also the judgment of the Department that Item 2 next above is equally impracticable from the standpoint of the express company. The Department wishes to assume no custodial relationship, actual or implied, to the shipments described above. It appears that the method employed by the War Department to bear the cost of such shipments is not legally material. Should it be held that it is necessary for representatives of the War Department to take physical charge of such shipments and consign them, in order to validate the waiver sought of customary accounting formalities, it will be the purpose of the Department to provide by appropriate regulations, in lieu of the provisions of subparagraphs 16 and 1d of inclosed draft, substantially as follows: That owners will deliver packages, properly packed and marked, to local Army transportation officers. That transportation officers will deliver all such packages periodically, but at least once a week, to express company and require the company to prepare separate prepaid express receipts for each shipment tendered in the name of the owner of the property, and will warn owners that the Government assumes no responsibility for the property or delivery thereof.

It is requested that you furnish information of whether your office will be required to object to the methods of arranging for transportation of shipments of civilian clothing, and of paying for such transportation, prescribed by inclosed draft of Circular of the Services of Supply, this Department. In the event your office would be required so to object, it is requested such suggestions be made as may be appropriate, considered in the light of the administrative determinations and desires set forth herein above. Because of the important and widespread operating consequences, your early reply will be appreciated.

The "draft of Circular of the Services of Supply" referred to is as follows:

Shipments of civilian clothing at War Department expense from military establishments.-1. Whenever shipments of civilian clothing are made, cost of shipment of which is borne by the War Department, under the provisions of paragraph 23 c (2), MR 1-7, as amended by Section II, Circular No. 122, War Department, 1942, or paragraph 21 d (3), MR 1-5, as amended by Section I, Circular No. 181, War Department, 1942 (see also Section VII, Circular No. 235, War Department, 1942), or under any other provisions subsequently published under which cost of shipment of small packages of property of enlisted men, selectees, or members of the Women's Army Auxiliary Corps or of the Army Specialist Corps are borne by the War Department, the following portions of procedure are prescribed:

a. All shipments weighing not more than 4 pounds will be made by parcel post. Other shipments will be made by either parcel post or railway express. Initial choice of method of transportation of shipments weighing more than 4 pounds will be made by shipper, subject to general control by local transportation officer to provide reasonable over-all economy in the cost to the Government. In comparing charges, fifteen (15) cents per shipment will be added to postage charge, as a constructive differential to cover insurance which is automatically provided by express. An effort will be made to use only service which will reach actual destination address. Departure from most economical method of

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