A-17658, MAY 19, 1927, 6 COMP. GEN. 750

A-17658: May 19, 1927

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AN OFFICER RETIRED FROM ACTIVE SERVICE IN THE REGULAR ARMY FOR INCAPACITY UNDER SECTION 1251 OF THE REVISED STATUTES IS REQUIRED TO BE PLACED ON ACTIVE DUTY IN HIS RETIRED GRADE OR RANK WHEN ABLE TO PERFORM ANY SERVICE OF VALUE TO THE GOVERNMENT. IS WITHOUT AUTHORITY OF LAW AND ONE ATTEMPTED TO BE SO APPOINTED MAY NOT BE PAID ANY PAY OR ALLOWANCES AS A MEMBER OF THE OFFICERS' RESERVE CORPS. FOR DECISION AS TO WHETHER HE IS AUTHORIZED TO PAY A MILEAGE VOUCHER PRESENTED TO HIM FOR PAYMENT BY COL. HE WAS ON 15 DAYS' ACTIVE DUTY UNDER WAR DEPARTMENT SPECIAL ORDERS. IT APPEARS COLONEL CHANDLER IS NOW 49 YEARS OF AGE AND IS A LIEUTENANT COLONEL ON THE RETIRED LIST OF THE REGULAR ARMY. IT IS UNDERSTOOD HE WAS APPOINTED A COLONEL IN THE AIR CORPS (THEN "SERVICE") RESERVE.

A-17658, MAY 19, 1927, 6 COMP. GEN. 750

MILEAGE - PAY - RETIRED ARMY OFFICER APPOINTED IN THE OFFICERS' RESERVE CORPS AN OFFICER IN THE OFFICERS' RESERVE CORPS MAY NOT BE PAID IN EXCESS OF 4 CENTS PER MILE FOR ANY TRAVEL NECESSARY IN CONNECTION WITH THE PERFORMANCE OF ACTIVE SERVICE FOR 15 DAYS OR LESS. AN OFFICER RETIRED FROM ACTIVE SERVICE IN THE REGULAR ARMY FOR INCAPACITY UNDER SECTION 1251 OF THE REVISED STATUTES IS REQUIRED TO BE PLACED ON ACTIVE DUTY IN HIS RETIRED GRADE OR RANK WHEN ABLE TO PERFORM ANY SERVICE OF VALUE TO THE GOVERNMENT, AND MAY NOT BE ASSIGNED TO ACTIVE DUTY IN THE UNITED STATES ARMY IN ANY OTHER GRADE OR RANK, OR RECEIVE THE PAY OR ALLOWANCES THEREOF, WHILE HE CONTINUES ON THE RETIRED LIST OF THE REGULAR ARMY. THE APPOINTMENT TO THE AIR CORPS RESERVE IN THE RANK OF COLONEL, OF AN OFFICER RETIRED FOR INCAPACITY FROM ACTIVE SERVICE IN THE REGULAR ARMY IN THE RANK OF LIEUTENANT COLONEL, UNDER SECTION 1251 OF THE REVISED STATUTES, IS WITHOUT AUTHORITY OF LAW AND ONE ATTEMPTED TO BE SO APPOINTED MAY NOT BE PAID ANY PAY OR ALLOWANCES AS A MEMBER OF THE OFFICERS' RESERVE CORPS.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 19, 1927:

MAJ. E. T. COMEGYS, F.D., UNITED STATES ARMY, THROUGH THE CHIEF OF FINANCE, APPLIED MARCH 7, 1927, FOR DECISION AS TO WHETHER HE IS AUTHORIZED TO PAY A MILEAGE VOUCHER PRESENTED TO HIM FOR PAYMENT BY COL. CHARLES DE F. CHANDLER, AIR CORPS RESERVE, AT THE RATE OF 4 OR 8 CENTS PER MILE, FOR TRAVEL PERFORMED BY COLONEL CHANDLER BETWEEN FEBRUARY 16, 1927, AND FEBRUARY 27, 1927, FROM WASHINGTON, D.C. (VIA MCCOOK FIELD, OHIO, AND SCOTT FIELD, ILL.), TO FORT WORTH, TEX., AND RETURN, WHILE WITH HIS CONSENT, HE WAS ON 15 DAYS' ACTIVE DUTY UNDER WAR DEPARTMENT SPECIAL ORDERS, NO. 33, DATED FEBRUARY 9, 1927.

IT APPEARS COLONEL CHANDLER IS NOW 49 YEARS OF AGE AND IS A LIEUTENANT COLONEL ON THE RETIRED LIST OF THE REGULAR ARMY, HAVING BEEN RETIRED IN THAT RANK ON OCTOBER 18, 1920, FROM THE AIR SERVICE UNDER SECTION 1251 OF THE REVISED STATUTES BECAUSE OF INCAPACITY FOR ACTIVE SERVICE, THE RESULT OF AN INCIDENT OF THE SERVICE. IT IS UNDERSTOOD HE WAS APPOINTED A COLONEL IN THE AIR CORPS (THEN "SERVICE") RESERVE, NOVEMBER 16, 1923, PRESUMABLY UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT AS AMENDED, 42 STAT. 1033, AS INTERPRETED IN PARAGRAPH 8 D AND E (4) AND PARAGRAPH 9 B (2) OF ARMY REGULATIONS 140 5; ALSO, THAT PRIOR TO THE ORDER OF FEBRUARY 9, 1927, COLONEL CHANDLER HAD PERFORMED NO ACTIVE DUTY UNDER HIS RESERVE APPOINTMENT.

THE OFFICER IS NOW ON DUTY AS A RETIRED OFFICER OF THE AIR CORPS, UNITED STATES ARMY, IN THE RANK OF LIEUTENANT COLONEL UNDER PARAGRAPH 25, WAR DEPARTMENT SPECIAL ORDERS, NO. 54, OF MARCH 7, 1927, WHICH READS AS FOLLOWS:

BY DIRECTION OF THE PRESIDENT, LIEUTENANT COLONEL CHARLES DE F. CHANDLER, UNITED STATES ARMY, RETIRED, NOW IN THIS CITY, IS WITH HIS CONSENT, PLACED ON ACTIVE DUTY UNDER THE PROVISIONS OF AN ACT OF CONGRESS APPROVED APRIL 23, 1924, (DOUBTLESS HAS REFERENCE TO ACT APRIL 23, 1904, 33 STAT. 264.) HE WILL REPORT IN PERSON TO THE CHIEF OF AIR CORPS, WASHINGTON, D.C., FOR DUTY IN HIS OFFICE.

THE SUBMISSION OF THE MILEAGE VOUCHER FOR DECISION AS TO THE RATE OF MILEAGE PAYABLE IS DUE TO THE LIMITATION CONTAINED IN EACH OF THE ANNUAL WAR DEPARTMENT APPROPRIATION ACTS TO THE EFFECT THAT "THE MILEAGE ALLOWANCE TO MEMBERS OF THE OFFICERS' RESERVE CORPS WHEN CALLED INTO ACTIVE SERVICE FOR 15 DAYS OR LESS SHALL NOT EXCEED 4 CENTS PER MILE.' JUNE 30, 1922, 42 STAT. 725; MARCH 2, 1923, 42 STAT. 1381; JUNE 7, 1924, 43 STAT. 506; FEBRUARY 12, 1925, 43 STAT. 921; APRIL 15, 1926, 44 STAT. 282; FEBRUARY 23, 1927, 44 STAT. 1133.

IF LIEUTENANT COLONEL CHANDLER, AN OFFICER ON THE RETIRED LIST OF THE REGULAR ARMY, IS ENTITLED TO ANY PAY, ALLOWANCES, OR MILEAGE AS A COLONEL IN THE AIR CORPS RESERVE WHILE ON DUTY FOR 15 DAYS' TRAINING IN THE RESERVE, WITH HIS CONSENT, THEN THERE SEEMS NO QUESTION BUT THAT THE PROVISION QUOTED LIMITS THE MILEAGE ALLOWANCE HE MAY BE PAID TO 4 CENTS PER MILE. HOWEVER, HAVING DUE REGARD FOR THE PURPOSE OF THE OFFICERS' RESERVE CORPS AND THE ALMOST IDENTICAL STATUS WITH RESPECT TO SERVICE AND AVAILABILITY FOR SERVICE OF AN OFFICER RETIRED FROM ACTIVE SERVICE IN THE REGULAR ARMY FOR DISABILITY AND ONE IN THE RESERVE CORPS, THERE IS FOR CONSIDERATION THE QUESTION WHETHER THE SAME INDIVIDUAL MAY, FOR ANY PERIOD, LAWFULLY OCCUPY SUCH DUAL OFFICIAL STATUS AND RECEIVE THE PAY AND ALLOWANCES OF ONE RANK WHEN ON ACTIVE DUTY AS A RETIRED OFFICER AND THE PAY AND ALLOWANCES OF ANOTHER AND HIGHER RANK WHEN ON ACTIVE DUTY AS A RESERVE OFFICER, EVEN THOUGH HIS RETIRED PAY BE STOPPED FOR THE PERIOD OF HIS ACTIVE RESERVE SERVICE, WHICH FACT DOES NOT APPEAR IN THIS CASE.

PARAGRAPH 8 D, ARMY REGULATIONS, 140-5, PROVIDES:

OFFICERS OF THE REGULAR ARMY RETIRED FOR PHYSICAL DISABILITY MAY BE APPOINTED (IN THE OFFICERS' RESERVE CORPS) FOR ASSIGNMENT TO SUCH DUTY AS THEIR PHYSICAL CONDITION PERMITS THEM TO PERFORM.

IT IS NOT CLEAR WHY THE REGULATIONS MADE THIS EXCEPTION IN THE CASE OF ARMY OFFICERS RETIRED FOR PHYSICAL DISABILITY UNLESS IT IS THE VIEW IN THE DEPARTMENT THAT OFFICERS SO RETIRED ARE NOT TO BE REGARDED FOR ANY PURPOSE AS HOLDING AN OFFICE DURING SUCH RETIREMENT, SINCE THE AMENDMENT OF SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, BY THE ACT OF MAY 31, 1924, 43 STAT. 245, SO AS TO EXCEPT FROM THE PROHIBITION CONTAINED THEREIN AGAINST HOLDING DUAL OFFICES IF COMPENSATION AT $2,500 PER ANNUM BE ATTACHED TO ONE OF THEM, RETIRED ENLISTED MEN, AND OFFICERS ,RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN THE LINE OF DUTY.' THE ACTS ARE NOT SO UNDERSTOOD IN THIS OFFICE BUT AS THEIR CONSTRUCTION IS NOT NECESSARY TO A PROPER DETERMINATION OF THE MATTER PRESENTED, IT SEEMS APPROPRIATE ONLY TO POINT OUT, IN PASSING, THAT THE EXCEPTION MADE BY THE ACT OF MAY 31, 1924, 43 STAT. 245, TO THE PROHIBITION AGAINST HOLDING DUAL OFFICES, DOES NOT EMBRACE ALL OFFICERS RETIRED FOR INCAPACITY BUT ONLY THOSE RETIRED FOR DISABILITY OR INCAPACITY OF THE CHARACTER SPECIFIED, AND THAT THE SOLE PURPOSE OF AMENDING SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, BY THE ACT OF MAY 31, 1924, WAS TO MAKE THE RETIRED PERSONS MENTIONED (PRIMARILY RETIRED ENLISTED MEN) ELIGIBLE FOR EMPLOYMENT IN THE "CIVIL SERVICE.' (SEE CONGRESSIONAL RECORD, 68TH CONG., 1ST SESS., PP. 5131, 9137, AND 9279; 1 COMP. GEN. 571, 700; 5 ID. 548.)

THE LAWS DEFINING THE STATUS OF OFFICERS OF THE REGULAR ARMY RETIRED FROM ACTIVE SERVICE FOR DISABILITY SEEM IN THEMSELVES TO PRECLUDE THE APPOINTMENT OF SUCH OFFICERS IN THE OFFICER'S RESERVE CORPS, FOR THEY ARE ALREADY OFFICERS OF THE UNITED STATES ARMY, ENTITLED TO WEAR THE UNIFORM THEREOF; THEIR NAMES ARE REQUIRED TO BE CONTINUED ON THE ARMY REGISTER; THEY ARE "SUBJECT TO THE RULES AND ARTICLES OF WAR AND TO TRIAL BY GENERAL COURT-MARTIAL FOR ANY BREACH THEREOF; " THEY ARE SUBJECT TO BE EMPLOYED IN ACTIVE DUTY IN TIME OF WAR, IN THE DISCRETION OF THE PRESIDENT, AND, WITH THEIR CONSENT, TO BE EMPLOYED ON VARIOUS CLASSES OF ACTIVE DUTY IN TIME OF PEACE; THEY ARE ENTITLED TO BE REAPPOINTED TO THE ACTIVE LIST IF FOUND COMPETENT FOR ACTIVE DUTY; AND THEY ARE REQUIRED TO BE EXAMINED AT INTERVALS, AND, IF FOUND TO HAVE RECOVERED FROM THE DISABILITY FOR WHICH RETIRED OR, IF FOUND ABLE TO PERFORM SERVICE OF VALUE TO THE GOVERNMENT, THEY ARE REQUIRED TO BE ASSIGNED TO SUCH ACTIVE DUTY AS THE SECRETARY OF WAR MAY APPROVE. (SEE IN THIS CONNECTION, SEC. 1256 OF THE REVISED STATUTES; ACT APR. 23, 1904, 33 STAT. 264; ACT AUG. 29, 1916, 39 STAT. 629; ACT JUNE 4, 1920, SECS. 24 AND 51, 41 STAT. 774, 785; 25 OP.ATTY.GEN. 185; 29 ID. 397; 5 CORPUS JURIS 314, SEC. 61; 2 COMP. GEN. 743; 4 ID. 260.)

SINCE THE LAW REQUIRES AN OFFICER RETIRED FOR DISABILITY FROM ACTIVE SERVICE IN THE REGULAR ARMY TO BE PLACED ON ACTIVE DUTY IN THE RANK HELD BY HIM ON THE RETIRED LIST, WITH FULL PAY AND ALLOWANCES THEREOF (IF BELOW THE GRADE OF BRIGADIER GENERAL) WHEN ABLE TO PERFORM ANY SERVICE OF VALUE TO THE GOVERNMENT, OBVIOUSLY HE MAY NOT BE CALLED TO ACTIVE DUTY IN THE UNITED STATES ARMY IN ANY OTHER GRADE OR RANK, NOR MAY HE BE PAID THE PAY AND ALLOWANCES OF ANY OTHER GRADE OR RANK, UNLESS PURSUANT TO AN EXPRESS PROVISION OF LAW. (SEE IN THIS CONNECTION SEC. 17, ACT OF JUNE 10, 1922, 42 STAT. 632; SEC. 3 OF THE ACT OF JUNE 6, 1924, 43 STAT. 470, PROVIDING ALL PERSONS APPOINTED RESERVE OFFICERS "SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES; " ALSO SECS. 1764 AND 1765 OF THE REVISED STATUTES: UNITED STATES V. KING, 147 U.S. 678, 37 L.ED. 328; 25 COMP. DEC. 987; 26 ID. 568; 27 ID. 220; ID. 702; 1 COMP. GEN. 486; 2 ID. 347; ID. 755; 4 ID. 169; 5 ID. 408; ID. 658; ID. 888; 6 ID. 683.)

IF THE LAWS AFFECTING OFFICERS ON THE RETIRED LIST OF THE REGULAR ARMY WERE SUCH THAT THE APPOINTMENT OF SUCH OFFICERS TO THE OFFICERS' RESERVE CORPS (UNITED STATES ARMY) IN A HIGHER GRADE OR RANK AND THE RECEIPT OF THE PAY AND ALLOWANCES THEREOF WHILE ON ACTIVE DUTY, COULD BE REGARDED AS VALID, IT WOULD SEEM THE ACCEPTANCE OF SUCH HIGHER GRADE OR RANK WOULD IPSO FACTO OPERATE TO VACATE THE PERMANENT INFERIOR GRADE OR RANK HELD ON THE RETIRED LIST, THE OFFICES BEING CLEARLY INCOMPATIBLE (29 CYC. 1381- 1383; 5 COMP. GEN. 419). WHEN THE CONGRESS HAS INTENDED TO AUTHORIZE THE APPOINTMENT OR PROMOTION OF AN OFFICER IN THE UNITED STATES ARMY OR THE UNITED STATES NAVY TO ANOTHER GRADE OR RANK THEREIN, WITHOUT SUCH SECOND APPOINTMENT OPERATING TO VACATE THE PERMANENT OR PROBATIONARY GRADE OR RANK ORIGINALLY HELD, IT HAS NOT ONLY PROVIDED IN EXPRESS LANGUAGE FOR SUCH SECOND APPOINTMENT OR PROMOTION BUT HAS PLAINLY STATED THAT IT SHALL NOT OPERATE TO VACATE THE PERMANENT OR ORIGINAL GRADE OR RANK. (SEE SEC. 114, ACT JUNE 3, 1916, 39 STAT. 211, 212; SEC. 8, ACT MAY 18, 1917, 40 STAT. 81, 82; SEC. 7, ACT MAY 22, 1917, 40 STAT. 86; AND ACT APR. 20, 1918, 40 STAT. 534, PROVIDING THAT THE TEMPORARY APPOINTMENT OR PROMOTION OF OFFICERS, WARRANT OFFICERS, ETC., OF THE ARMY AND NAVY TO A HIGHER GRADE OR RANK DURING EMERGENCY SERVICE, SHOULD NOT VACATE THEIR PERMANENT COMMISSIONS NOR PREJUDICE THEIR RELATIVE OR LINEAL STANDING IN THE REGULAR SERVICE; ALSO SEC. 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, EXPRESSLY AUTHORIZING THE APPOINTMENT OF A NATIONAL GUARD OFFICER IN THE OFFICERS' RESERVE CORPS AND PROVIDING HE MAY HOLD A COMMISSION IN THE NATIONAL GUARD WITHOUT THEREBY VACATING HIS RESERVE COMMISSION; SEC. 11 OF THE ACT OF APR. 22, 1898, 30 STAT. 363; SECS. 10 AND 13 OF THE ACT OF APR. 22, 1898, AS AMENDED BY THE ACT OF MAY 28, 1898, 30 STAT. 421, AND SEC. 13, ACT OF MAR. 2, 1899, 30 STAT. 980, RESPECTING THE RETENTION OF THE REGULAR ARMY OFFICE BY OFFICERS OF THE REGULAR ARMY APPOINTED TO HIGHER GRADES IN THE VOLUNTEERS.)

THE LAWS DEFINING THE PURPOSE OF THE OFFICERS' RESERVE CORPS, DESIGNATING THE PERSONS WHO MAY BE APPOINTED THERETO AND FIXING THEIR STATUS THEREIN, HOWEVER, LEAVE NO DOUBT THAT THE APPOINTMENT IN THE AIR CORPS RESERVE OF AN OFFICER ON THE RETIRED LIST OF THE REGULAR ARMY IS VOID AB INITIO.

SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 42 STAT. 1033, STATES THE PURPOSE OF THE OFFICERS' RESERVE CORPS AND THE QUALIFICATIONS, IN SO FAR AS PERTINENT, FOR APPOINTMENT THEREIN, AS FOLLOWS:

OFFICERS' RESERVE CORPS: FOR THE PURPOSE OF PROVIDING A RESERVE OF OFFICERS AVAILABLE FOR MILITARY SERVICE WHEN NEEDED THERE SHALL BE ORGANIZED AN OFFICERS' RESERVE CORPS * * *. ANY PERSON WHO HAS BEEN * * * AN OFFICER OF THE REGULAR ARMY AT ANY TIME MAY BE APPOINTED AS A RESERVE OFFICER IN THE HIGHEST GRADE WHICH HE HELD IN THE ARMY OR ANY LOWER GRADE. ANY PERSON COMMISSIONED IN THE NATIONAL GUARD AND RECOGNIZED AS A NATIONAL GUARD OFFICER BY THE SECRETARY OF WAR MAY UPON HIS OWN APPLICATION BE APPOINTED AS A RESERVE OFFICER IN THE GRADE HELD BY HIM IN THE NATIONAL GUARD. NO OTHER PERSON SHALL IN TIME OF PEACE BE ORIGINALLY APPOINTED AS A RESERVE OFFICER OF * * * AIR SERVICE (AIR CORPS) IN A GRADE ABOVE THAT OF SECOND LIEUTENANT. IN TIME OF PEACE APPOINTMENTS IN THE * * * AIR SERVICE (AIR CORPS) SHALL BE LIMITED TO FORMER OFFICERS OF THE ARMY * * * WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, NATIONAL GUARD, AND ENLISTED RESERVE CORPS * * *. ANY RESERVE OFFICER MAY HOLD A COMMISSION IN THE NATIONAL GUARD WITHOUT THEREBY VACATING HIS RESERVE COMMISSION.

SUBSECTION 47B OF SECTION 47 OF THE NATIONAL DEFENSE ACT AS AMENDED, 41 STAT. 778, PROVIDES:

* * * THAT NO RESERVE OFFICER APPOINTED PURSUANT TO THIS ACT SHALL BE ENTITLED TO RETIREMENT, OR TO RETIRED PAY, AND SHALL BE ELIGIBLE FOR PENSION ONLY FOR DISABILITY INCURRED IN LINE OF DUTY IN ACTIVE SERVICE OR WHILE SERVING WITH THE ARMY PURSUANT TO PROVISIONS OF THIS ACT.

IT WAS UNDER THE PROVISIONS OF LAW QUOTED THAT LIEUTENANT COLONEL CHANDLER, AN OFFICER ON THE RETIRED LIST OF THE REGULAR ARMY, IN RECEIPT OF RETIRED PAY, AND THUS MORE "AVAILABLE FOR MILITARY SERVICE WHEN NEEDED" THAN ANY RESERVE OFFICER, WAS ATTEMPTED TO BE APPOINTED NOVEMBER 16, 1923, IN THE AIR CORPS RESERVE WITH THE RANK OF COLONEL "THE HIGHEST GRADE WHICH HE HELD IN THE ARMY," ALTHOUGH SECTION 37 EXPRESSLY LIMITS THE AUTHORIZATION FOR SUCH APPOINTMENTS IN TIME OF PEACE TO ,FORMER OFFICERS OF THE ARMY.' CLEARLY THE RULE EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS (THE EXPRESSION OF THE ONE IS THE EXCLUSION OF ANOTHER) APPLIES AND THE APPOINTMENT OF LIEUTENANT COLONEL CHANDLER IN THE AIR CORPS RESERVE MUST BE HELD TO HAVE BEEN IN CONTRAVENTION OF LAW.

PAYMENT OF MILEAGE TO THE OFFICER FOR THE TRAVEL HE PERFORMED AS A COLONEL IN THE AIR CORPS RESERVE ON 15 DAYS' ACTIVE DUTY, OR OF ANY PAY OR ALLOWANCES ADDITIONAL TO HIS STATUTORY RETIRED PAY, THEREFORE, IS NOT AUTHORIZED.