Section 1184, Revised Statutes, is as follows: "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 sumcient for the punctual payment of the troops, he may appoint, by and with the advice 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 volunteer or militia. as he may deem necessary." Section 1185, Revised Statutes, is as follows: "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." Major Keleher was not appointed under act of April 22. 1898, and amendments authorizing the Volunteer Army for the war with Spain, but under section 1184. Revised Statutes, and under section 1185. Revised Statutes, he was entitled to his discharge when his services were no longer required. The act of May 22, 1898 (30 Stat.. 420), provides: "That officers of the Regular Army receiving commissions in regiments of engineers, or any other commissions in the Volunteer Army, shall not be held to vacate their offices in the Regular Army by accepting the same, but shall be entitled to receive only the pay and allowances of such volunteer rank while serving as such. While this act makes no provision for volunteers who accepted commissions in the Regular Army, the principle seems to be recognized therein that an officer may hold a commission in the Regular Army at the same time he holds a commission of a higher grade in the Volunteer Army. Similar questions to those involved in this case were fully discussed in a decision of the Comptroller's Office dated March 13, 1900 (unpublished), in the case of David M. Sells, lieutenant colonel, 107th United States Colored Troops. In the decision the Assistant Comptroller said: "I am of the opinion that the principle to be applied in determining the pay and allowances to which an officer is entitled while serving under a prior commission in the volunteers after having accepted a commission in the Regular Army must be the same whether the commission so accepted is the first commission in the Regular Army or a commission on promotion from one grade to another, and that the right to such pay does not depend upon section 4, act of June 3. 1884 (23 Stat.. 35), but continues as long as the necessity for employment of volunteer organizations existed. I therefore accept the opinion of Second Comptroller Upton (Digest Second Comp. Dec., vol. 2, sec. 759), supra, as correct and hold that David M. Sells was entitled to pay and allowances as lieutenant colonel of the 107th United States Volunteer Infantry to December 3, 1866, when he was relieved from duty as lieutenant colonel of said regiment, notwithstanding his acceptance of a commission as a captain in the Regular Army on October 8, 1866." In view of the foregoing, I am of the opinion that Major Keleher is entitled to pay and allowances as a major and additional paymaster of the Army to the date he received notice or was legally chargeable with notice of his discharge as such. In the same decision, in discussing the officer's right to traveling allowances on discharge as a volunteer only, the Assistant Comptroller said: So far as his right to traveling allowances on said discharge is concerned, it is immaterial whether he is regarded as having vacated his commission as lieutenant colonel of the 107th United States Colored Infantry, on the instant of accepting his commission as captain in the Regular Army, or whether he is to be regarded as an officer of the Regular Army holding and serving under a higher commission of the volunteers from the dates of such acceptance to the date of muster out of the volunteer service. "In either case his discharge from the volunteer service was not a final discharge but a discharge by way of transfer from one branch of the military service to another; he was therefore not entitled to the traveling allowances $118.75 paid to him on said discharge and the said amount is a proper charge against any pay or allowances due him from the United States." In view of this opinion I decide that under act of March 2, 1901, a major and additional paymaster of the volunteers, discharged as such by reason of acceptance of a commission in the Regular Army, is not entitled to traveling allowances on such discharge. In decision of February 22, 1899 (5 Comp. Dec., 529), in discussing an officer's right to extra pay under act of January 12, 1899, the Assistant Comptroller quoted the following extracts from the decision of the Supreme Court of the United States, in the case of Lewis Merrill (9 Wallace, 614); "His theory of the law is that it bestowed a gratuity upon officers of volunteers, and that it makes no difference that he found himself immediately transferred to another branch of the military service by virtue of a commission in the Regular Army, which he held before he was commissioned as a colonel of volunteers and throughout the entire period of that service; but it is not possible to concur in that proposition, as it seems much more reasonable to suppose that the object which Congress had in view was to provide for the loss to which the volunteer officers. when discharged from the military service, were exposed for want of employment before they would be able to resume, to any considerable extent, their accustomed avocations in civil life. The word service as used in that act means beyond question the military service of the United States, and it is equally clear that no such officer is entitled to that allowance unless it is shown that he was mustered out of the military service of the United States, or was otherwise honorably discharged from that service subsequent to the time specified in the amendatory act. ** * "None of the reasons which induced Congress to make the provision under consideration exist in the case of the appellee, as he has never been out of public employment for a moment since he accepted his commission in the Regular Army, and has no occasion to desire to reengage in business pursuits." In commenting on the decision of the Supreme Court the Assistant Comptroller said: The court held that the phrase mustered out of said service' in the act of March 3, 1865, means unquestionably that he was mustered out of the military service of the United States." * "The reasoning and conclusion of the Supreme Court as to the purpose of the acts of March 3, 1865, and July 13, 1866, supru, and the meaning of the word service and the phrase 'mustered out of the service' in said acts apply with equal force to the act of January 12. 1899, now under consideration and the phrase mustered out of the service as used in said act. "I am, therefore, of the opinion and hold that officers and enlisted men of the Regular Army holding commissions in the Volunteer Army, who, on muster out and discharge from service in volunteer organizations, return to duty, rank, and pay in the Regular Army are not entitled to the extra pay provided by the act of January 12, 1899, as they are not discharged from the military service of the United States." In view of the foregoing I am of the opinion and so decide that additional paymasters with the rank of major, discharged as such by reason of acceptance of commissions in the Regular Army, are not entitled to extra pay under the act of May 26, 1900. In decision of March 16, 1901, in case of Capt. Frederick T. Leigh, 32d Company, U. S. Volunteer Signal Corps, extra pay and travel-pay were allowed to that officer on his discharge to enable him to accept a commis sion as a volunteer officer under the act of March 2, 1899. The reason for making this allowance was stated as follows: He was entitled to his discharge as a matter of right on account of the close of the war with Spain at the time it was granted, and he is, therefore, entitled to extra pay and traveling allowances notwithstanding the fact that his discharge appears to have been granted to enable him to accept a commission as a volunteer officer under the act of March 2, 1899. Having accepted a commission under the act of May 18, 1898 (30 Stat., 417), which provided for service during the existing war, he is considered as having accepted his commission for the war only and was entitled to his discharge at the close thereof. The present case differs from that of Leigh in that, as stated by the Auditor, Major Keleher's appointment as additional paymaster was not under any of the acts authorizing the Volunteer Army for the war with Spain, but under section 1184, Revised Statutes. He was not therefore entitled to his discharge as a matter of right at the close of the war and the decision in the Leigh case is not applicable to him. His case is similar to that of Sells, cited by the Auditor, and the principles laid down in that case should be applied. The decision of the Auditor is approved. L. P. MITCHELL, BY COMMAND OF LIEUTENANT GENERAL MILES: H. C. CORBIN, Adjutant General, Major General, U. S. Army. No. 41. ADJUTANT GENERAL'S OFFICE, Washington, November 4, 1901. By direction of the Secretary of War, the following information respecting the appointment and duties of chaplains in the Army and regulations established by the President to govern the examinations of candidates for such appointments are published for the information of all concerned: The existing laws prescribe the following requirements, which must be met as preliminary to an appointment by the President as chaplain: First, that the candidate is a regularly ordained minister of some religious denomination; second, that he is in good standing in such denomination; third, that he is recommended for appointment by some authorized ecclesiastical body, or by not less than five accredited ministers of the same; fourth, that he shall not have passed the age of forty years (unless originally appointed in the volunteers when under forty-two years of age), and fifth, that he shall have "passed satisfactorily such examination as to his moral, mental, and physical qualifications as may be prescribed by the President," unless he has demonstrated such qualifications in service as chaplain during the war with Spain. (Sec. 1123, R. S.; Acts February 2 and March 2, 1901.) The duties required by law of chaplains are that they shall hold appropriate religious services for the benefit of the commands to which assigned; that they shall perform appropriate burial services at the burial of officers and soldiers who may die in such commands, and that they shall give instruction to the enlisted men in the common English branches of education. (Secs. 1124, 1125, R. S.) EXAMINATION OF CANDIDATES. Boards of examination, which shall include at least one medical officer, will be appointed by the Secretary of War for the examination of candidates who may be designated by the President. No candidate will be examined who is not a citizen of the United States, or who does not conform to the preliminary requirements prescribed by law. The examination as to fitness will cover physical, educational, and professional or clerical qualifications. A thorough physical examination will be made by the medical member or members of the board whose certificate shall accompany its proceedings. If there be found to exist any disqualification that might impair the efficiency of the candidate as a chaplain the cause thereof will be fully stated in the certificate. The examination as to educational and professional qualifications will include the following subjects: 1. Extent of school, academic or collegiate, and theological education. 2. Pastoral work as clergyman. 3. Experience in teaching. 4. English grammar and composition. 5. Writing and spelling. 6. Mathematics; to be confined to elementary operations in arithmetic, with statement of the candidate as to what knowledge, if any, he possesses of higher mathematics. 7. Geography, particularly in reference to the United States. 8. History, particularly of the United States, and outlines of general history. 9. Constitutional and International law. 10. Physiology and hygiene. In awarding marks the board will give an aggregate weight of 2,000, to be distributed and attached to the several subjects of examination as follows: 1. Physical examination .... 2. Attendance at schools and academies. 3. Attendance at college..... 100 100 200 12. Constitutional and International law. 13. Physiology and hygiene.... A candidate will not be passed by the board who shall not 300 200 200 150 200 150 150 100 50 |