Imágenes de páginas
PDF
EPUB

Cavalry, for the month of February, 1901, and the indorsements thereon, requesting my decision on the following questions:

1. Whether post chaplains and the chaplains of the four colored regiments of the Army in service on February 2, 1901, are included in the increased pay and allowances provided for chaplains by the act of that date, or whether the pay and allowances of captain of infantry applies only to chaplains appointed by the President after the approval of the act of February 2, 1901.

2. Whether a chaplain assigned to duty with a cavalry regiment would be entitled to mounted pay on a certificate of the Secretary of War or department commander that he was on duty which required him to be mounted.

These questions will be considered in the order submitted.

The act of February 2, 1901 (31 Stat.,-), entitled "An act to increase the efficiency of the permanent military establishment of the United States," provides among other things

SEC. 1. That from and after the approval of this act the Army of the United States, including the existing organizations, shall consist of fifteen regiments of cavalry, a corps of artillery, thirty regiments of infantry, etc.

SEC. 12. That the President is authorized to appoint, by and with the advice and consent of the Senate, chaplains, in the Army, at the rate of one for each regiment of cavalry and infantry in the United States service and twelve for the corps of artillery with the rank, pay, and allowances of captains of infantry: And provided, That the office of post chaplain is abolished, and the officers now holding commissions as chaplains, or who may hereafter be appointed chaplains, shall be assigned to regiments or to the corps of artillery. Chaplains may be assigned to such stations as the Secretary of War shall direct, and may be transferred, as chaplains, from one branch of the service or from one regiment to another by the Secretary of War, without further commission. When serving in the field chaplains shall be furnished with necessary means of transportation by the Quartermaster's Department.

SEC. 39. That nothing in this act shall be held or construed so as to discharge any officer from the Regular Army or to deprive him of the commission which he now

holds therein.

SEC. 42. That all laws and parts of laws inconsistent with the provisions of this act be and the same are hereby repealed.

Under the provisions of this act post chaplains and chaplains of the four colored regiments do not lose their commission and need not be reappointed. The office of post chaplain is abolished, but those holding commissions as such are still chaplains in the Army, appointed by the President by and with the advice and consent of the Senate, and it is evident that Congress intended that all chaplains holding commission at the date of the passage of the act should be assigned to the same duties and entitled to the same pay and allowances as chaplains appointed subsequent to the date of the passage of the act.

The chaplains of the four colored regiments having been already assigned to these regiments and on duty therewith need not be reassigned thereto. "The law forces no one to do vain or useless things." The particular station or regiment to which chaplains shall be assigned does not materially affect their duties, and being on duty from the date of the passage of the act they are entitled to the rank, pay, and allowances of chaplains provided for by said act from its date, for the reason that no time is necessary to effect the change, and the reorganization goes into effect at

once as to these officers. If their rank, pay, or allowances depended upon the particular station to which they were assigned, then this rule would not prevail and it would be necessary to give time to make the assignments. (5 Comp. Dec., 761, 763.) For the reasons given it is held that the act of February 2, 1901, supra, as to all chaplains then in the service goes into effect at the date of its passage, and that the post chaplains and the chaplains of the four colored regiments are included within its provision and entitled to the increased pay therein provided for from that date. I will now consider the second question.

The act provides that chaplains serving in the field shall be furnished the necessary means of transportation by the Quartermaster's Department.

It will be noted that while Congress provided for chaplains of infantry, cavalry, and artillery, it made the pay and allowances that of a captain of infantry and provided that the Quartermaster's Department should furnish the necessary means of transportation for the only service wherein it would seem that the chaplain would require to be mounted.

When these provisions are considered together they indicate that Congress intended to confine the pay and allowances of chaplains for all service to that of a captain of infantry and that when performing service where they would require to be mounted they should be furnished with the means of transportation by the Quartermaster's Department in lieu of being paid mounted pay.

This provision as to transportation applies to service in the field whether the officer is serving with cavalry, infantry, or artillery. No certificate of the Secretary of War or department commander could give chaplains a right to mounted pay for such service, whether serving with cavalry or otherwise, and as this is the only kind of service that they would be engaged in that would necessarily require them to be mounted, it follows that Congress inserted this provision as to chaplains as a substitute for all other laws and regulations that might otherwise be held to give them a right to mounted pay for service where they are required to be mounted. It is therefore held that chaplains are not entitled to mounted pay, whether serving with a cavalry regiment or otherwise, when on duty which requires them to be mounted.

Inclosures are herewith returned.
Respectfully,

R. J. TRACEWELL,

Comptroller.

XI. First lieutenant and assistant surgeon of volunteers, appointed under act of March 2, 1899, promoted by seniority to captain, is entitled to pay of captain from date of acceptance of commission only.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,
Washington, May 3, 1901,

Lieut. Col. GEORGE W. BAIRD, through office of Paymaster General.
SIR: I am in receipt of your letter of April 24, 1901, as follows:
Capt. H. Brookman Wilkinson, assistant surgeon, 34th Infantry, U. S. Volunteers,
submits to me his account for final payment and on the account makes claim for pay
as a captain and assistant surgeon from the 28th of February, 1901.
He was pro-
moted by seniority to be a captain and assistant surgeon from the position of 1st

lieutenant and assistant surgeon, to date February 28, 1901, and accepted the appointment April 16, 1901. The occasion of the delay in acceptance was that he left Manila March 1 and arrived in San Francisco March 29.

In the decision of the Comptroller dated March 12, 1901, relating to the date of pay of volunteer officers when promoted by seniority to the next higher grade, it was stated that "volunteer officers promoted by seniority in accordance with the regulations are entitled to" higher rate of pay from the date of vacancy.

The doubt as to this claim arises from the fact that in the act of Congress approved February 2, 1901, "to increase the efficiency of the permanent military establishment of the United States," it is provided "that assistant surgeons in the Volunteer Army of the United States commissioned by the President as captains in accordance with the provisions of an act for increasing the Army of the United States, and for other purposes, approved March 2, 1899, shall be entitled to the pay of a captain mounted from the date of their acceptance of such commission, as prescribed by law."

The phraseology of the provision indicates, I think, that it is remedial legislation. intended to supply an omission in the act cited in it, and that therefore the provision that assistant surgeons of the grade of captain should have the pay of such grade from the date of their acceptance of such commissions is intended to apply only to those who had been already commissioned and that officers promoted into the grade of captain and assistant surgeon have the right to claim their pay from the date of vacancy under the decision of the Comptroller cited notwithstanding this act of Congress.

I have to request to be informed whether Captain Wilkinson is entitled to the pay of captain from the date of vacancy or only from the date of his acceptance.

You request my decision under the facts stated on the question whether Captain Wilkinson is entitled to pay from the date of the vacancy to which he was appointed or from the date of the acceptance of the office.

Captain Wilkinson was promoted by seniority to be a captain and assistant surgeon from the position of first lieutenant and assistant surgeon, to date from February 28, 1901, and accepted the appointment April 16, 1901, and but for the provision in section 18, of the act of February 2, 1901 (31 Stat., -), quoted above, would be entitled to the pay of the office to which promoted from the date of the vacancy. (See Comp. Dec. of March 12, 1901, M. S., Vol. 16, pp. 942, 948.) The act of March 2, 1899 (30 Stat., 981), section 15, provides:

That each regiment shall have one surgeon, with the rank of major; two assistant surgeons, one of whom shall have the rank of captain and one that of first lieuten**Provided further, That such increased regular and volunteer force shall continue in service only during the necessity therefor, and not later than July first, nineteen hundred and one.

ant.

Surgeons appointed under the act of March 2, 1899, supra, are entitled to the pay of a first lieutenant mounted for the first five years' service (6 Comp. Dec., 278), Under the provision of the act of February 2, 1901, supra, assistant surgeons, commissioned as captains by the President under the act of March 2, 1899, supra, are entitled to the pay of a captain mounted from the date of the acceptance of their commission. All who are within the provisions of this act are entitled to the pay therein provided subject to the limitations of said act whether appointed before or after its passage. The act specifically limits the increased pay granted to the period from the date of the acceptance of the commission and applies to all officers commissioned under it and no practice of paying from the date of vacancy to the date of acceptance of commission where the appointment is by promotion by seniority can prevail against this positive limitation in the statute granting the pay.

I have therefore to inform you that Captain Wilkinson is not entitled to the pay of a captain mounted prior to the date of the acceptance of his commission.

Respectfully,

R. J. TRACEWELL,

Comptroller.

XII..Mileage, act March 2, 1901, General Orders, No. 26, Adjutant General's Office, 1901 (31 Stat., 901).

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

Washington, June 28, 1901.

The Auditor for the War Department submits the following decision for approval, disapproval, or modification, under section 8 of the act of July 31, 1894 (28 Stat., 208):

In the examination of paymaster's accounts and claims of officers pending in this office various questions arise as to the proper construction to be given certain provisions in the act of March 2, 1901 (31 Stat.,901), governing the payment of mileage to officers traveling without troops and directing reimbursenient to be made to certain officers of deductions made from mileage accounts paid before March 2, 1901.

In view of the foregoing as to the provisions of act of March 2, 1901, above quoted and referred to, I am of opinion and decide as follows:

1. That while the appropriation is for the fiscal year 1902 the conditions contained after the word "hereafter" in the first proviso are permanent legislation and take effect March 2, 1901.

2. That officers entitled to mileage traveling after March 1, 1901, are entitled to 7 cents a mile for the distance as computed over routes established and shown by the distance tables or mileage tables prepared by the Paymaster General as provided in the act; and that deductions from the mileage accounts of officers shall be made as follows: When transportation is furnished, 3 cents per mile for the distance furnished, distance between the points to be determined by the official distance tables in effect at date of journey, and 3 cents a mile to be deducted for that portion of the journey for which deductions are indicated by the distance tables, whether transportation for that portion of the journey has been furnished or not.

3. That no stoppage should be made against a paymaster or an officer entitled to mileage on account of an overpayment made previous to March 2, 1901, provided that the distance paid for is not in excess of the distance shown by the distance tables, and the amount deducted on account of travel over subsidized roads is not less than the deduction indicated by the distance tables officially promulgated and in use at date payment was made.

4. That no payment can be made to an officer because of amounts deducted or withheld from his mileage account previous to May 26, 1900, by reason of the correct distance by the shortest usually traveled route being less than that shown by

the distance tables.

5. That when an officer is actually furnished transportation over a subsidized or agreement road, no refundment can be made of amounts deducted from his mileage account under act of March 15, 1898, or March 3, 1899,

6. That when an officer has not been furnished transportation and claims refundment under this act, it is material to know whether the travel was actually over a subsidized road or an agreement road. If the travel was over a subsidized road no reimbursement can be made beyond what it would have cost the Government for the transportation if it had actually been furnished, but if the travel was over an agreement road and the officer has actually paid his own fare over such road, then refundment may be made of the amount deducted from the mileage account as the cost of travel fare over such road under the act of March 15, 1898, or March 3, 1899.

7. That when an officer has traveled prior to March 2, 1901, over any road over which transportation should have been but was not furnished and for which deduction of 3 cents a mile has been made under act of May 26, 1900, reimbursement may be made of what it would have cost the Government if transportation had been furnished, but when such travel is on or after March 2, 1901, no reimbursement can be made because of the failure of the officer to obtain transportation over such roads.

The decision of the Auditor as expressed in paragraphs 1 to 7, both inclusive, appears to be correct, and the same is approved.

R. J. TRACEWELL,

Comptroller.

XIII. A retired officer detailed on college duty under the act of November 3, 1893, entitled to full pay from date of receipt of notice of order detailing him.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,
Washington, July 25, 1901.

The Honorable the SECRETARY OF WAR.

SIR: I am in receipt of your communication of the 8th instant requesting that your Department be advised whether a retired officer of the Army, detailed on college duty, is entitled to active-duty pay from the date of the receipt of the order, or from the date that he reports for such duty.

It appears from the correspondence which accompanies your request that Captain George K. Spencer, U. S. Army, retired, was (upon his application dated September 29, 1900) detailed by paragraph 13, Special Orders, No. 231, Adjutant General's Office, October 2, 1900, as professor of military science and tactics at the University of Arkansas, under the provisions of the act of Congress approved November 3, 1893. He reported in person for duty at the university October 11, 1900, from which date he has received the active-duty pay of his rank. Captain Spencer applied for activeduty pay from the date the order detailing him was promulgated, claiming that that was the date from which he was entited to receive such pay.

The question presented is one of construction and is from what date is Captain Spencer entitled to receive the full pay of his rank? His application was dated September 29, 1900. He was detailed by Special Orders dated October 2, 1900, He reported at the university for duty October 11, 1900. In indorsement dated May 28, 1901, the Paymaster General, U. S. Army, says:

It is the rule in making the first payment to retired officers detailed on college duty to allow active pay only from the date of their reporting at the college for said duty and to the date of their receipt of the order relieving them from such duty. In indorsement dated June 28, 1901, the Judge-Advocate General of the Army says:

This officer was detailed, on his prior request, on October 2, 1900, and it would seem that he is entitled to "active pay" from that date or at least from the date of notice of such detail. In a military sense the word "detail" means "the selection of an individual for a particular service" (Century Dictionary), and

it is thought that this officer was "detailed" within the meaning of the statute from the time he had notice of the detail, his application for the detail being regarded as an acceptance of it. From such notice it was his duty to take steps to enter upon the duties for which he was detailed, and he may be regarded, therefore, as on duty for this purpose.

If Congress had intended that an officer detailed under the provisions of the above act should not receive the full pay of his rank "when so detailed" until he had reported to the "educational institution" and entered upon duty it would have no doubt so said, but the language of the act is "and when so detailed shall receive the full pay of their rank."

I am of opinion that whenever an officer is detailed by an order issued by proper authority and receives notice of such order the detail under the above act is complete, becomes an accomplished fact, and he is entitled to be paid the full pay of his rank from the date he receives such notice. This is the natural and reasonable construction to place upon said act.

« AnteriorContinuar »