CIRCULAR,

No. 38.

HEADQUARTERS OF THE ARMY,

ADJUTANT GENERAL'S OFFICE,

Washington, October 19, 1901.

By direction of the Acting Secretary of War, the following decisions of the Comptroller of the Treasury are published to the Army for the information and guidance of all concerned:

I.. Whether a soldier discharged for disability caused
by venereal disease is excluded from right to travel-
pay--
II--Officers of the Army appointed from volunteers not
entitled to leave credits accrued during their vol-
unteer service----.

III--Fee of witnesses before general court martial-
IV..Pay of gunners of artillery ---

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I--Decision as to whether a soldier discharged for disability caused by venereal disease is excluded from right to travelpay by the act of March 16, 1896 (29 Stat., 63).

TREASURY DEPARTMENT,

OFFICE OF THE COMPTROLLER OF THE TREASURY,

Washington, D. C., August 11, 1899.

The Honorable the SECRETARY OF WAR.

SIR: I have received from the Paymaster General, by your direction, a request for a decision upon the question whether a soldier discharged for disability caused by venereal disease is excluded from a right to travelpay by the act of March 16, 1896 (29 Stat., 63).

The papers submitted consist of a copy of an indorsement made by the Surgeon General of the Army March 19, 1898, relative to the case of Hamilton Williams, private, Troop K, 9th U. S. Cavalry, a letter from Maj. Geo. W. Baird, paymaster of the Army, to the Paymaster General of the Army, dated June 20, 1899, stating his views as to what is to be regarded as misconduct, and the indorsement thereon.

It does not appear that the request for decision has any reference to a payment to be made to Williams, and no specific facts in any case are submitted. It is therefore construed to be a request for my construction of the act of March 16, 1896, to be used as a guide to paymasters in the matter of paying or refusing to pay travel allowances to soldiers discharged for disability caused by venereal disease.

In his indorsement submitting the question the Acting Paymaster General says:

It has been the custom of the Pay Department to take the view that travel-pay is not forfeited for such a disability when it does not appear on final statements that the man was discharged by Secretary of War for "disability caused by his own misconduct."

Section 1290 of the Revised Statutes provides:

When a soldier is discharged from the service, except by way of punishment for an offense, he shall be allowed transportation and subsistence from the place of his discharge to the place of his enlistment, enrollment, or original muster into the service. The Government may furnish the same in kind, but in case it shall not do so he shall be allowed travel-pay and commutation of subsistence for such time as may be sufficient for him to travel from the place of discharge to the place of his enlistment, enrollment, or original muster into the service, computed at the rate of one day for every twenty miles.

Excepting the provisions of the act of March 16, 1896, and except during the period from June 22, 1874, to February 26, 1877, when an honorable discharge was a condition precedent to payment of travel allowances under section 1290 of the Revised Statutes as it then stood, the law from January 29, 1813 (see Sec. 15, act of January 29, 1813, 2 Stat., 796), to the present sime has been, in all essential particulars, as it now stands under section 1290, Revised Statutes, supra.

Under said section soldiers discharged for a disability caused by venereal diseases have uniformly been held to be entitled to travel allowances, as they were not discharged for their own convenience nor by way of punishment for an offense.

This fact is so well understood that citations are unnecessary.

The act of March 16, 1896 (29 Stat., 63), under which the question submitted arises, provides:

That no enlisted man discharged by order of the Secretary of War for disability caused by his own misconduct shall be entitled to the travel allowances provided for in section 1290, Revised Statutes.

Under this act a soldier may be discharged far from home without means to secure transportation and subsistence to his home or to the place of his enlistment and thus subjected to a severe penalty.

The act being of a penal nature must be strictly construed and not extended by implication.

The general words of a penal statute shall be restrained for the benefit of him against whom the penalty is inflicted. (Potter's Dwarris, p. 245.) Section 1342, Revised Statutes, Article IV, provides as follows:

No enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer when no field officer is present; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial.

The Secretary of War, therefore, is not the only officer who has power to discharge a soldier before his term of service has expired.

But to bring a soldier within the provisions of the act of March 16, 1896, supra, he must be discharged by order of the Secretary of War for a disability caused by his own misconduct.

I am of the opinion that the law requires strict compliance with all of

three conditions to deprive a soldier of his right to travel allowances, to wit:

1. The soldier must be discharged by order of the Secretary of War. If he is otherwise discharged the act does not apply.

2. The discharge must be for a disability. If the soldier is discharged for any cause other than disability the act does not apply to his case.

3. The disability for which he is discharged must have been caused by his own misconduct. If the discharge is ordered by the Secretary of War for a disability, the act can not apply unless the disability was caused by the soldier's own misconduct.

Venereal diseases are of different kinds and degrees. They may or may not amount to a disability. They are usually caused by misconduct, but not always. A soldier's disability may be caused by wounds or several diseases, including venereal disease, but the venereal disease of itself may not amount to a disability.

The fact that a soldier has a venereal disease is simply a matter of evidence to be considered by the Secretary of War in determining whether the soldier's disability was caused by his own misconduct. The fact that a soldier has venereal disease is strong evidence of misconduct, but it is not conclusive and may be shown to have been contracted innocently.

I am of the opinion that the act was intended by Congress to vest in the Secretary of War exclusive jurisdiction to determine, first, the disability of the soldier; second, whether such disability was caused by his misconduct.

If such disability existed and has been caused by the soldier's misconduct and the Secretary so determines and orders his discharge, then the act deprives the soldier of travel allowances.

In order that the act may be carried into effect, and in order that it may not be applied to soldiers who do not come within its provisions, it is suggested that the finding of the Secretary of War, that the soldier's disability was caused by his own misconduct, be stated in the order for discharge.

A statement in the order that the soldier is entitled to travel allowances after the Secretary of War has determined that his disability was caused by bis own misconduct and has ordered his discharge for said disability is in violation of the law and without effect.

If the statement that a soldier "is entitled to travel-pay" is intended to mean that it does not appear that his disability was caused by his misconduct, or the statement "this soldier is not entitled to travel-pay" is intended to mean that the disability was caused by his own misconduct, the language is unhappily chosen, for it relates to a matter not within the jurisdiction of the Secretary of War, and does not determine the soldier's rights in respect to travel allowances. A soldier disabled by venereal diseases may be discharged by a department commander on a surgeon's certificate of disability in the same manner as on a surgeon's certificate of disability for any other disease or for wounds, and on such discharge the soldier is entitled to travel allowances under section 1290 of the Revised Statutes, unless the Secretary of War in such case has ordered his discharge for disability caused by his own misconduct.

As no specific case was presented this reply is necessarily general in its nature.

It is understood that the question submitted relates only to soldiers discharged before they have a right to discharge by reason of expiration of term or close of the war.

Respectfully, yours,

L. P. MITCHELL,
Assistant Comptroller.

II--Officers of the Army appointed therein from officers of volunteers are not entitled to leave credits which accrued to them but were not availed of during their volunteer service. TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY.

The Honorable the SECRETARY OF WAR.

Washington, September 25, 1901.

SIR: I have received by your authority a letter dated September 3, 1901. from the Paymaster General of the Army requesting a decision as to whether Captain W. B. Rochester, paymaster, U. S. Army, in addition to leave due him as a Regular Army officer, is now entitled to leave credits at full pay that accrued to him, but were not used, while serving as major and additional paymaster, U. S. Volunteers, he having accepted his commission as major and additional paymaster, U. S. Volunteers. May 27. 1898, and honorably discharged June 12, 1901, having accepted his commission as captain and paymaster, U. S. Army, May 31, 1901; and also requesting a decision in the cases of officers discharged from the volunteer service who received and accepted an appointment in the Regular Army on the following day, whether their service is regarded as continuous. and they are entitled as Regular Army officers to leave credits that accrued to them as volunteer officers, but were not enjoyed in the volunteer service. In the case of Paymaster Rochester it is stated that the service from May 27, 1898, has been continuous and without any absence from duty.

The two cases present substantially the same question and may be considered together.

Section 1265. Revised Statutes, provides:

Officers when absent on account of sickness or wounds, or lawfully absent from duty and awaiting orders, shall receive full pay: when absent with leave, for other causes, full pay during such absence not exceeding in the aggregate thirty days in one year, and half pay during such absence exceeding thirty days in one year. When absent without leave, they shall forfeit all pay during such absence, unless the absence is excused as unavoidable.

The act of July 29, 1876 (19 Stat., 102), provides:

That an act approved May eighth, eighteen hundred and seventy-four, in regard to leave of absence of Army officers, be, and the same is hereby, so amended that all officers on duty shall be allowed, in the discretion of the Secretary of War, sixty days leave of absence without deduction of pay or allowance; Provided, That the same be taken once in two years: And provided, further, That the leave of absence may be extended to three months, if taken once only in three years, or four months if taken once only in four years.

Section 1184, Revised Statutes, provides that

When volunteers or militia are called into the service of the United States, and the officers of the Paymaster's Department are not deemed by

the President sufficient for the punctual payment of the troops, he may appoint, by and with the advice and consent of the Senate, and add to said corps as many paymasters, to be called additional paymasters, with the rank of major, not exceeding one for every two regiments of volunteers or militia, as he may deem necessary.

Section 1185, Revised Statutes, provides that

Additional paymasters shall be retained in service only so long as they may be required for the payment of volunteers and militia, as provided herein.

The act of April 22, 1898, provided for temporarily increasing the military establishment of the United States in time of war, and for other purposes; it is therein provided that in time of war the army shall consist of two branches which shall be designated, respectively, as the Regular Army and the Volunteer Army of the United States. Section 3 of said act provides:

That the Regular Army is the permanent military establishment, which is maintained in peace and war according to law.

Section 4 of said act provides:

That the Volunteer Army shall be maintained only during the existence of war, or while war is imminent, and shall be raised and organized, as in this act provided, only after Congress has or shall authorize the President to raise such force or to take into the actual service of the United States the militia of the several States.

Section 12 of said act provides:

That all officers and enlisted men of the Volunteer Army, and of the militia of the States when in the service of the United States, shall be in all respects on the same footing as to pay, allowances, and pensions, as that of officers and enlisted men of corresponding grades in the Regular Army. By section 6 of the act of April 22, 1898, supra, it is provided that the Volunteer Army when called into the service of the United States be organized under and subjected to the laws, orders, and regulations governing the Regular Army, but it was also provided in said section that the officers of certain volunteer organizations enlisting in the Volunteer Army in a body should when thus enlisted be appointed by the governors of the States and Territories to which such organization belonged and that they should be officers of corresponding grades in the same organization when it shall have been received into the service of the United States as a part of the Volunteer Army.

By the act of April 25, 1898 (30 Stat., 364), war was declared to exist between the United States and Spain, and for the purpose of prosecuting said war the President was authorized to raise a volunteer army of the United States.

So long as Captain Rochester was major and additional paymaster in the Volunteer Army as above stated he was entitled to receive for such service the same pay as if he had been in the Regular Army, but the Volunteer Army and the Regular Army are separate and distinct and his service in one is separate and distinct from his service in the other, and I am of opinion and so decide that after his service was concluded and he was discharged from the Volunteer Army and he had accepted an ap pointment in the Regular Army any right he may have had to leave of absence with full pay during his volunteer service could not be recognized or taken into consideration in allowing him leave of absence with full pay for service in the Regular Army.