A-22344, MAY 3, 1928, 7 COMP. GEN. 691

A-22344: May 3, 1928

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PAY - RETIRED - ARMY OFFICER WHOLLY RETIRED AN OFFICER OF THE ARMY WHOSE RETIREMENT PURPORTS TO HAVE BEEN EFFECTED UNDER SECTION 1252. ANY IRREGULARITY THEREIN WITH RESPECT TO THE STATUTE UNDER WHICH THE SEPARATION FROM THE SERVICE SHOULD HAVE BEEN CONSUMMATED NOT BEING A MATTER WHICH IS OPEN TO QUESTION OR CORRECTION THROUGH A CLAIM FOR PAY AND ALLOWANCES. WHEREIN WAS DISALLOWED HIS CLAIM FOR ONE YEAR'S RENTAL AND SUBSISTENCE ALLOWANCES BY REASON OF HIS RETIREMENT UNDER PARAGRAPH 7. HAVING BEEN FOUND BY AN ARMY RETIRING BOARD INCAPACITATED FOR ACTIVE SERVICE ON ACCOUNT OF DISABILITY WHICH IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE. WAS. SECTION 1252 OF THE UNITED STATES REVISED STATUTES WAS TAKEN FROM SECTION 17 OF "AN ACT PROVIDING FOR THE BETTER ORGANIZATION OF THE MILITARY ESTABLISHMENT" APPROVED AUGUST 3.

A-22344, MAY 3, 1928, 7 COMP. GEN. 691

PAY - RETIRED - ARMY OFFICER WHOLLY RETIRED AN OFFICER OF THE ARMY WHOSE RETIREMENT PURPORTS TO HAVE BEEN EFFECTED UNDER SECTION 1252, REVISED STATUTES, AND WHOSE ORDER ANNOUNCING HIS RETIREMENT INDICATES HIM ENTITLED TO "ONE YEAR'S PAY AND ALLOWANCES" PRESCRIBED IN SECTION 1275, REVISED STATUTES, MAY NOT BE PAID IN EXCESS OF "ONE YEAR'S PAY" OF AN OFFICER OF THE ARMY OF HIS RANK AND LENGTH OF SERVICE AT DATE OF RETIREMENT. SECTION 24B AND SECTION 52, CHAPTER I, OF THE ARMY REORGANIZATION ACT OF JUNE 4, 1920, 41 STAT. 773, 787, APPARENTLY EFFECTED THE REPEAL OF SECTIONS 1245 TO 1253, INCLUSIVE, SECTION 1275, OR ANY OTHER SECTION OF THE REVISED STATUTES TAKEN FROM SECTION 16 AND SECTION 17 OF THE ARMY REORGANIZATION ACT OF AUGUST 3, 1861, 12 STAT. 289, 290, AND OBVIOUSLY THERE HAS BEEN NO FIELD FOR APPLICATION OF SECTION 1275, REVISED STATUTES, SINCE THE CITED REORGANIZATION ACT OF 1920 BECAME EFFECTIVE. AN OFFICER OF THE ARMY WHOLLY RETIRED UNDER SECTION 1252, REVISED STATUTES, THEREBY BECOMES A CIVILIAN AND HIS RETIREMENT CREATES A VACANCY IN THE SERVICE WHICH MAY BE FILLED ONLY BY REGULAR APPOINTMENT AND CONFIRMATION, ANY IRREGULARITY THEREIN WITH RESPECT TO THE STATUTE UNDER WHICH THE SEPARATION FROM THE SERVICE SHOULD HAVE BEEN CONSUMMATED NOT BEING A MATTER WHICH IS OPEN TO QUESTION OR CORRECTION THROUGH A CLAIM FOR PAY AND ALLOWANCES.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 3, 1928:

ROBERT WHITLEY MILLER, FORMERLY FIRST LIEUTENANT, EIGHTH CAVALRY, UNITED STATES ARMY, HAS APPLIED FOR REVIEW OF SETTLEMENT NO. 0176711, DATED APRIL 8, 1927, WHEREIN WAS DISALLOWED HIS CLAIM FOR ONE YEAR'S RENTAL AND SUBSISTENCE ALLOWANCES BY REASON OF HIS RETIREMENT UNDER PARAGRAPH 7, WAR DEPARTMENT SPECIAL ORDERS, NO. 271, NOVEMBER 16, 1925, AS FOLLOWS:

FIRST LIEUTENANT ROBERT W. MILLER, 8TH CAVALRY, HAVING BEEN FOUND BY AN ARMY RETIRING BOARD INCAPACITATED FOR ACTIVE SERVICE ON ACCOUNT OF DISABILITY WHICH IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, AND SUCH FINDING HAVING BEEN APPROVED BY THE PRESIDENT ON NOVEMBER 14, 1925, WAS, BY DIRECTION OF THE PRESIDENT, WHOLLY RETIRED FROM THE SERVICE ON THAT DATE UNDER THE PROVISIONS OF SECTION 1252, REVISED STATUTES. THE PROVISIONS OF SECTION 1275, REVISED STATUTES, APPLY IN THIS CASE.

SECTION 1252 OF THE UNITED STATES REVISED STATUTES WAS TAKEN FROM SECTION 17 OF "AN ACT PROVIDING FOR THE BETTER ORGANIZATION OF THE MILITARY ESTABLISHMENT" APPROVED AUGUST 3, 1861, 12 STAT. 289, 290,AND PROVIDES:

WHEN THE BOARD FINDS THAT AN OFFICER IS INCAPACITATED 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.

SECTION 1275 OF THE UNITED STATES REVISED STATUTES HAD THE SAME ORIGIN AS SECTION 1252 AND PROVIDES:

OFFICERS WHOLLY RETIRED FROM THE SERVICE SHALL BE ENTITLED TO RECEIVE, UPON THEIR RETIREMENT, ONE YEAR'S PAY AND ALLOWANCES OF THE HIGHEST RANK HELD BY THEM, WHETHER BY STAFF OR REGIMENTS COMMISSION, AT THE TIME OF THEIR RETIREMENT.

THE "BOARD" REFERRED TO IN SECTION 1252 IS THE ARMY RETIRING BOARD OF NOT MORE THAN NINE OR LESS THAN FIVE OFFICERS, INVESTED WITH THE POWERS OF A COURT OF INQUIRY AND COURT-MARTIAL AND REQUIRED BY SECTION 17 OF THE CITED ACT OF AUGUST 3, 1861, AND, LATER, BY SECTIONS 1246 TO 1250, INCLUSIVE, OF THE UNITED STATES REVISED STATUTES, TO BE CONVENED PERIODICALLY FOR THE PURPOSE OF INQUIRING INTO AND DETERMINING THE FACTS TOUCHING THE NATURE AND OCCASION FOR HIS INCAPACITY OF ANY OFFICER OF THE ARMY WHO HAD BECOME INCAPABLE OF PERFORMING THE DUTIES OF HIS OFFICE, AS TO WHOM SECTION 16 OF THE CITED ACT OF AUGUST 3, 1861, LATER SECTION 1245 OF THE UNITED STATES REVISED STATUTES, REQUIRED THAT SUCH OFFICER SHOULD BE EITHER RETIRED FROM ACTIVE SERVICE OR WHOLLY RETIRED FROM THE SERVICE BY THE PRESIDENT. THE ORIGINAL SECTION 17 OF THE CITED 1861 STATUTE AN OFFICER WHOSE INCAPACITY WAS FOUND NOT AN INCIDENT OF HIS SERVICE WAS REQUIRED TO BE RETIRED EITHER WITH HIS PAY PROPER ALONE, OR WITH HIS SERVICE RATIONS ALONE, AT THE DISCRETION OF THE PRESIDENT, OR WHOLLY RETIRED FROM THE SERVICE WITH ONE YEAR'S PAY AND ALLOWANCES.

THE ARMY REORGANIZATION ACT OF JUNE 4, 1920, 41 STAT. 759, 773, 787, PROVIDES:

(CHAPTER I.) SEC. 24B. CLASSIFICATION OF OFFICERS.--- IMMEDIATELY UPON THE PASSAGE OF THIS ACT, AND IN SEPTEMBER OF 1921 AND EVERY YEAR THEREAFTER, THE PRESIDENT SHALL CONVENE A BOARD OF NOT LESS THAN FIVE GENERAL OFFICERS, WHICH SHALL ARRANGE ALL OFFICERS IN TWO CLASSES, NAMELY: CLASS A, CONSISTING OF OFFICERS WHO SHOULD BE RETAINED IN THE SERVICE, AND CLASS B, OF OFFICERS WHO SHOULD NOT BE RETAINED IN THE SERVICE. UNTIL OTHERWISE FINALLY CLASSIFIED, ALL OFFICERS SHALL BE REGARDED AS BELONGING TO CLASS A, AND SHALL BE PROMOTED ACCORDING TO THE PROVISIONS OF THIS ACT TO FILL ANY VACANCIES WHICH MAY OCCUR PRIOR TO SUCH FINAL CLASSIFICATION. NO OFFICER SHALL BE FINALLY CLASSIFIED IN CLASS B UNTIL HE SHALL HAVE BEEN GIVEN AN OPPORTUNITY TO APPEAR BEFORE A COURT OF INQUIRY. IN SUCH COURT OF INQUIRY HE SHALL BE FURNISHED WITH A FULL COPY OF THE OFFICIAL RECORDS UPON WHICH THE PROPOSED CLASSIFICATION IS BASED AND SHALL BE GIVEN AN OPPORTUNITY TO PRESENT TESTIMONY IN HIS OWN BEHALF. THE RECORD OF SUCH COURT OF INQUIRY SHALL BE FORWARDED TO THE FINAL CLASSIFICATION BOARD FOR RECONSIDERATION OF THE CASE, AND AFTER SUCH CONSIDERATION THE FINDING OF SAID CLASSIFICATION BOARD SHALL BE FINAL AND NOT SUBJECT TO FURTHER REVISION EXCEPT UPON THE ORDER OF THE PRESIDENT. WHENEVER AN OFFICER IS PLACED IN CLASS B, A BOARD OF NOT LESS THAN THREE OFFICERS SHALL BE CONVENED TO DETERMINE WHETHER SUCH CLASSIFICATION IS DUE TO HIS NEGLECT, MISCONDUCT, OR AVOIDABLE HABITS. IF THE FINDING IS AFFIRMATIVE, HE SHALL BE DISCHARGED FROM THE ARMY; IF NEGATIVE, HE SHALL BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT THE RATE OF 2 1/2 PERCENTUM OF HIS ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF COMMISSIONED SERVICE, OR SERVICE WHICH UNDER THE PROVISIONS OF THIS ACT IS COUNTED AS ITS EQUIVALENT, UNLESS HIS TOTAL COMMISSIONED SERVICE OR EQUIVALENT SERVICE SHALL BE LESS THAN TEN YEARS, IN WHICH CASE HE SHALL BE HONORABLY DISCHARGED WITH ONE YEAR'S PAY. * * *

SEC. 52. THAT ALL LAWS AND PARTS OF LAWS IN SO FAR AS THEY ARE INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED.

THE OFFICIAL REGISTER, UNITED STATES ARMY, FOR 1925, SHOWS THE CLAIMANT, MILLER, ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT, F.A. SEC. O.R.C. FEBRUARY 25, 1918, AND WAS CONTINUOUSLY ON ACTIVE DUTY FROM THAT DATE; THAT HE VACATED THIS OFFICE MAY 18, 1918, ON WHICH DATE HE ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT OF INFANTRY IN THE REGULAR ESTABLISHMENT; THAT HE ACCEPTED APPOINTMENT AS FIRST LIEUTENANT SEPTEMBER 18, 1918, TRANSFERRED TO THE CAVALRY AS OF JULY 1, 920; AND WAS SERVING AS A FIRST LIEUTENANT IN THAT BRANCH NOVEMBER 14, 1925, THE DATE ON WHICH THE PRESIDENT APPROVED THE FINDING OF THE ARMY RETIRING BOARD IN HIS CASE. HE, THUS, HAD COMPLETED 7 YEARS 8 MONTHS AND 20 DAYS OF SERVICE ON THAT DATE AND WAS ENTITLED, UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, TO PAY OF THE SECOND PERIOD AT $2,000, INCREASED BY 10 PERCENTUM, $200, OR AT $2,200 PER ANNUM, WHICH SUM WAS PAID TO HIM ON VOUCHER NO. 8493, NOVEMBER, 1925, DISBURSING ACCOUNT OF CAPT. CARL HALLA, F.D., UNITED STATES ARMY. IN HIS FIRST INDORSEMENT OF DECEMBER 5, 1925, ATTACHED TO THIS PAY VOUCHER THE CLAIMANT ASSERTS HE SERVED IN AN ENLISTED STATUS FROM FEBRUARY 1, 1917, TO THE DATE OF HIS APPOINTMENT FEBRUARY 25, 1918, IN THE F.A. SEC. O.R.C., BUT SUCH SERVICE DOES NOT APPEAR OF RECORD IN THE OFFICIAL ARMY REGISTER AND IF ADDED TO THE SERVICE WHICH IS OF RECORD WOULD NOT HAVE ENTITLED HIM TO PAY AS IN THE FOURTH THREE YEARS OF SERVICE AT DATE OF DISCHARGE. THE MATTER OF ENLISTED SERVICE, THEREFORE, IS NOT NOW MATERIAL FOR CONSIDERATION.

MR. MILLER SUGGESTS THAT THE PAYMENT TO HIM OF BUT $2,200 BY REASON OF THE MANNER OF HIS DISCHARGE WAS DOUBTLESS DUE TO A CONFUSION OF HIS STATUS WITH THAT OF AN OFFICER DISCHARGED UNDER THE CITED SECTION 24B OF THE ARMY REORGANIZATION ACT AND NOW CONTENDS THAT UNDER SECTION 1275 OF THE UNITED STATES REVISED STATUTES DESIGNATED IN THE CITED GENERAL ORDER UNDER WHICH HE WAS RETIRED, HE IS ENTITLED TO ONE YEAR'S RENTAL AND SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS, ALTHOUGH HIS ORIGINAL CLAIM WAS LIMITED TO ONE YEAR'S SUBSISTENCE ALLOWANCE WHICH CLAIM WAS REJECTED MARCH 23, 1926, BY THE ARMY FINANCE OFFICE ON THE AUTHORITY OF DECISIONS OF THE COMPTROLLER OF THE TREASURY DATED APRIL 3, 1901, 7 COMP. DEC. 598, AND APRIL 21, 1902, 8 ID. 737, RESPECTIVELY, AND WAS DISALLOWED IN THIS OFFICE BY THE SETTLEMENT NO. 0176711 OF APRIL 8, 1927, OF WHICH REVIEW HAS BEEN REQUESTED.

THE PAYMENT OF $2,200 TO THE CLAIMANT, THE ANNUAL PAY AN OFFICER OF HIS RANK AND LENGTH OF SERVICE WAS ENTITLED TO RECEIVE UNDER EXISTING LAWS AT THE DATE OF HIS RETIREMENT, WAS IN ACCORDANCE WITH THE UNIFORM APPLICATION MADE OF SECTION 1275 OF THE UNITED STATES REVISED STATUTES BY OFFICERS OF THE EXECUTIVE AND ADMINISTRATIVE BRANCHES OF THE GOVERNMENT SINCE THERE WERE ESTABLISHED ANNUAL RATES OF PAY FOR OFFICERS OF THE ARMY IN SECTION 24 OF THE ACT OF JULY 15, 1870, 16 STAT. 320, WHICH IT WAS THEREIN PROVIDED SHOULD "BE IN FULL OF ALL COMMUTATION OF QUARTERS, FUEL, FORAGE, SERVANTS' WAGES AND CLOTHING, LONGEVITY, RATIONS, AND ALL ALLOWANCES OF EVERY NAME AND NATURE WHATEVER; " THUS, MERGING THE "PAY AND ALLOWANCES" DESIGNATED IN SECTION 17 OF THE CITED ACT OF AUGUST 3, 1861, LATER SECTION 1275 OF THE REVISED STATUTES, INTO THE ONE ITEM ,PAY.' THE DECISIONS OF THE COMPTROLLER OF THE TREASURY CITED BY THE ARMY FINANCE OFFICE MERELY WERE DECLARATORY OF THE PRACTICE WHICH THEN HAD BEEN OBSERVED CONSISTENTLY FOR 30 YEARS AND WHICH SINCE HAS BEEN OBSERVED FOR NEARLY AS MANY YEARS MORE. BOTH RENTAL AND SUBSISTENCE ALLOWANCES, MOREOVER, ARE IN THEIR NATURE CONTINGENT, BEING DETERMINABLE IN AMOUNT UPON WHETHER AN OFFICER HAS OR HAS NOT DEPENDENTS AND, IN THE CASE OF RENTAL ALLOWANCE, UPON HIS STATUS WITH RESPECT TO DUTY AND STATION AND WHETHER QUARTERS ARE ASSIGNED. JONES V. UNITED STATES (1925), 60 CT.CLS. 552.

IT IS A WELL-SETTLED RULE THAT THE CONTEMPORANEOUS CONSTRUCTION OF A STATUTE BY THOSE CHARGED WITH ITS EXECUTION AND APPLICATION, ESPECIALLY WHEN IT HAS LONG PREVAILED, WHILE NOT CONTROLLING, IS ENTITLED TO GREAT WEIGHT, AND SHOULD NOT BE DISREGARDED OR OVERTURNED, EVEN BY THE COURTS, UNLESS IT BE CLEAR THAT SUCH CONSTRUCTION IS ERRONEOUS. 25 R.C.L. 1043, SEC. 274; 10 OP.ATTY.GEN. 52. UNDER THIS VENERABLE RULE, AND, ALSO, BECAUSE THE PRACTICE WHICH HAS BEEN SO LONG OBSERVED OTHERWISE SEEMS CORRECT, WERE THE MATTER ONE OF ORIGINAL CONSIDERATION BY THIS OFFICE AT THIS TIME THE SETTLEMENT DISALLOWING MR. MILLER'S CLAIM NECESSARILY WOULD BE ADHERED TO.

HOWEVER, THERE IS ANOTHER ASPECT OF THE CASE WHICH DEMONSTRATES THE CORRECTNESS OF THE SETTLEMENT MADE, AND WHICH, AT THE SAME TIME, GIVES RISE TO A VERY SERIOUS DOUBT WHETHER THE CLAIMANT WAS ENTITLED TO BE RETIRED UNDER SECTION 1252 OF THE UNITED STATES REVISED STATUTES.

IN AN OPINION DATED JANUARY 31, 1878, 15 OP.ATTY.GEN. 442, 445, RENDERED BY THE HON. CHARLES DEVENS TO THE THEN SECRETARY OF THE NAVY, IT IS HELD IN THE CASE OF FIRST LIEUT. GEORGE M. WELLES, UNITED STATES MARINE CORPS, WHOSE RETIREMENT ALSO WAS EFFECTED UNDER SECTION 1252 OF THE UNITED STATES REVISED STATUTES, THAT THE COMPENSATION OF AN OFFICER THUS RETIRED, BEING FIXED BY STATUTE AND NOT LEFT TO BE DETERMINED BY THE PRESIDENT, IN SO FAR AS THE ORDER OF RETIREMENT FIXED THE PAY OF LIEUTENANT WELLES CONTRARY TO THE STATUTES, THE ORDER MUST BE TREATED AS OF NO EFFECT.

AN IDENTICAL PRINCIPLE IS FOR APPLICATION IN DETERMINING THE EFFECT OF THE ORDER UNDER WHICH THE CLAIMANT HERE WAS RETIRED, IF THE SECTIONS OF THE REVISED STATUTES DESIGNATED, IN FACT AND LAW, ARE NOT CONTROLLING.

IT SEEMS READILY APPARENT THAT SECTION 24B OF THE ARMY REORGANIZATION ACT OF JUNE 4, 1920, 41 STAT. 773, COVERS SUBSTANTIALLY, IF NOT COMPLETELY, THE ENTIRE FIELD OF LEGISLATION COVERED BY SECTIONS 16 AND 17 OF THE CITED ARMY REORGANIZATION ACT OF AUGUST 3, 1861, 12 STAT. 289, 290, AND BY THE SECTIONS OF THE UNITED STATES REVISED STATUTES, INCLUDING SECTIONS 1252 AND 1275, WHICH WERE TAKEN THEREFROM. THERE CAN BE NO QUESTION BUT THAT THE CASE OF THE PRESENT CLAIMANT, LIEUTENANT MILLER, WAS ONE FOR CONSIDERATION BY THE CLASSIFICATION BOARD PROVIDED FOR IN THE 1920 ACT, BEING ONE OF AN OFFICER INCAPACITATED FOR SERVICE AND, ON THE OFFICIAL RECORD, SHOWN TO HAVE BEEN AN OFFICER "WHO SHOULD NOT BE RETAINED IN THE SERVICE; " SECTION 24B WOULD SEEM MANDATORY, THEREFORE, THAT THE CLAIMANT, AT LEAST TENTATIVELY, SHOULD HAVE BEEN ARRANGED IN CLASS B, AND AS HE HAD LESS THAN 10 YEARS' COMMISSIONED SERVICE THERE CAN BE NO DOUBT, IN VIEW OF THE RECORD, THAT HE WOULD HAVE BEEN "DISCHARGED WITH ONE YEAR'S PAY" OR, IF HIS INCAPACITY (CLASSIFICATION) WAS "DUE TO HIS NEGLECT, MISCONDUCT, OR AVOIDABLE HABITS" WOULD HAVE BEEN "DISCHARGED" WITHOUT PAY.

CERTAINLY NO ONE COULD SERIOUSLY CONTEND AN OFFICER ADMITTEDLY INCAPACITATED FOR SERVICE "DUE TO HIS NEGLECT, MISCONDUCT, OR AVOIDABLE HABITS" AND REQUIRED UNDER SECTION 24B OF THE CITED 1920 STATUTE TO BE "DISCHARGED" WITHOUT PAY COULD SECURE ANY RIGHT TO PAY THROUGH AN ARBITRARY ADMINISTRATIVE ACTION PURPORTING TO RETIRE HIM UNDER SECTION 1252 OF THE UNITED STATES REVISED STATUTES AND IT SEEMS TO FOLLOW THAT AN OFFICER REQUIRED TO BE DISCHARGED UNDER SECTION 24B "WITH ONE YEAR'S PAY" COULD NOT BY AN ARBITRARY ADMINISTRATIVE ACTION PURPORTING TO RETIRE HIM UNDER SECTION 1251 OR SECTION 1252 OF THE UNITED STATES REVISED STATUTES, OR ANY OTHER PRIOR STATUTE, BECOME ENTITLED TO BE RETIRED WITH IN EXCESS OF "ONE YEAR'S PAY.'

A LATER STATUTE WITHOUT ANY REPEALING CLAUSE MUST BE HELD TO REPEAL AN EARLIER ONE WHEN UNDER NO REASONABLE HYPOTHESIS CAN THE PROVISIONS OF BOTH BE CONSTRUED AS COEXISTING. AND THERE MAY BE AN IMPLIED REPEAL OF AN EARLIER BY A LATER ACT, ALTHOUGH THEY ARE NOT REPUGNANT IN THE USUAL SENSE OF THE TERM. WHERE A STATUTE COVERS THE WHOLE SUBJECT MATTER OF AN EARLIER ACT, AND IT IS EVIDENT THAT IT WAS INTENDED TO BE A REVISION OF, OR SUBSTITUTE FOR, THE EARLIER ACT, ALTHOUGH IT CONTAINS NO EXPRESS WORDS TO THAT EFFECT, IT OPERATES AS A REPEAL OF THE EARLIER ACT TO THE EXTENT THAT ITS PROVISIONS ARE REVISED AND SUBSTITUTED. 25 R.C.L. 914, 915, SEC. 167. NOT ONLY UNDER THIS RULE BUT UNDER THE EXPRESS REPEALING CLAUSE CONTAINED IN SECTION 52, CHAPTER I, OF THE 1920 REORGANIZATION ACT MUST THE PROVISIONS OF SECTION 24B APPARENTLY BE REGARDED AS EFFECTING A REPEAL OF THE SECTIONS 1245 TO 1253, INCLUSIVE, SECTION 1275, OR ANY OTHER SECTION OF THE REVISED STATUTES TAKEN FROM THE CITED SECTIONS 16 AND 17 OF THE 1861 REORGANIZATION ACT. INASMUCH, HOWEVER, AS THE QUESTION PRESENTED BY THE PRESENT CLAIM MAY BE DISPOSED OF BY CONFINING THE CONSIDERATION TO SECTION 1275 OF THE REVISED STATUTES THE MATTER OF DETERMINING THE EFFECT OF THE 1920 STATUTE UPON THE OTHER SECTIONS INVOLVED WILL BE POSTPONED UNTIL SOME CLAIM FOR PAY IS PRESENTED NECESSARILY REQUIRING A CONSTRUCTION THEREOF.

IT MUST BE CONCLUDED THERE IS NO LONGER ANY FIELD FOR APPLICATION OF SECTION 1275 OF THE REVISED STATUTES. SUPPORT FOR THIS CONCLUSION, IF MORE IS NEEDED, IS ALSO DERIVED FROM THE FACT THAT SECTION 1275 OF THE UNITED STATES REVISED STATUTES HAS NOT BEEN INCLUDED IN THE RECENT OFFICIAL AND UNOFFICIAL CODES OF FEDERAL STATUTES.

THE CLAIMANT, MILLER, CLEARLY IS NOT ENTITLED TO MORE THAN THE "ONE YEAR'S PAY" WHICH HE HAS RECEIVED AND, UNDER SECTION 24B OF THE 1920 REORGANIZATION ACT, IF HIS INCAPACITY WAS "DUE TO HIS NEGLECT, MISCONDUCT, OR AVOIDABLE HABITS," HE WAS NOT ENTITLED TO BE PAID ANY AMOUNT WHATEVER, HE HAVING COMPLETED LESS THAN 10 YEARS' COMMISSIONED SERVICE ON NOVEMBER 14, 1925.

IT IS TO BE BORNE IN MIND, OF COURSE, IN THIS CONNECTION THAT HOW EVER IRREGULAR THE CLAIMANT'S DISCHARGE MAY HAVE BEEN WITH RESPECT TO THE STATUTE UNDER WHICH HE WAS RETIRED (DISCHARGED) FROM THE SERVICE, HIS CONNECTION WITH THE SERVICE WAS ABSOLUTELY TERMINATED AS OF NOVEMBER 14, 1925, AND A VACANCY WAS THEREBY CREATED WHICH COULD BE FILLED ONLY BY REGULAR APPOINTMENT AND CONFIRMATION, THE MATTER NOT BEING ONE WHICH IS OPEN TO QUESTION OR CORRECTION THROUGH A CLAIM FOR PAY OR ALLOWANCES. UNITED STATES EX REL. FRENCH V. WEEKS, (1922) 259 U.S. 326, 66 L.ED. 965, AFFIRMING WEEKS V. UNITED STATES EX REL. FRENCH (1921) 277 FED.REP. 600, 51 APP.D.C. 201; UNITED STATES EX REL. CREARY V. WEEKS (1922) 259 U.S. 336, 66 L.ED. 973, AFFIRMING WEEKS V. UNITED STATES EX REL. CREARY (1921) 277FED.REP. 594, 51 APP.D.C. 195; ROGERS V. UNITED STATES, 270 U.S. 154, 70 L.ED. 520, AFFIRMING (1924) 59 CT.CLS. 464; MYERS V. UNITED STATES (1926) 272 U.S. 52, 47 S.CT. 21, AND THE DECISIONS THEREIN CITED; MILLER V. UNITED STATES (1884) 19 CT.CLS. 338; MCBLAIR V. UNITED STATES (1884) 19 CT.CLS. 528; 15 OP.ATTY.GEN. (1878) 442; 19 OP.ATTY.GEN. (1888) 203; WINTHROP'S MILITARY LAW AND PRECEDENTS, SECOND EDITION, PP. 752-753.