Military Laws of the United States (Army).

fore July 1, 1922, held a commission in the Organized Militia between January 21, 1903, and July 1, 1916 (Sec. 1, par. 11, act of June 10, 1922), he was entitled to have included 75 percent of the period during which he held his commission in the militia, for the purpose of making his total commissioned service equal that of a lieutenant commander of the line drawing pay of the fourth period. Gibbs v. U. S. (1931), 72 Ct. Cls. 301.

1375. Same; service counted.

Recovery for overpayment.-United States by long-continued overpayment does not estop itself to recover same from officer. Heidt v. U. S. (C. C. A. 1932), 56 F. (2d) 559. Certiorari denied (1932), 287 U. S. 601.

Officers discharged and recommissioned.— Provision that discharge and recommission of officers in next lower grade should not reduce pay or allowances does not give increased pay for future services. Eagle v. U. S. (1927), 63 Ct. Cls. 157.

"U. S. C. 10: 683" should be eliminated from the citation to the first paragraph of this section.

The original text of the third paragraph based on War Department appropriation acts of June 7, 1924 (43 Stat. 481); Feb. 12, 1925 (43 Stat. 896); Apr. 15, 1926 (44 Stat. 257). U. S. C. 10: 684, is omitted as expired. The above provision, omitted from the original Code and Military Laws, 1929, should be substituted therefor. (J. A. G. 010.3, November 12, 1929, page 119.)

1380. Base pay, enlisted men.

For temporary reduction, see 1634d, post.

1383. Base pay, retired officers.

"U. S. C. 10: 972" should be omitted from the citation to the second paragraph of this section, and "U. S. C. 10: 972a" from the citation to the third paragraph.

November 12, 1929, pages 164, 155, 165, 307.)

For temporary reduction, see 1634d, post.

(J. A. G. 010.3.

By act of May 15, 1935 (49 Stat. 247), the President is authorized to designate Colonel William L. Keller, Medical Corps, as Consultant in Surgery at the United States Army Medical Center (Walter Reed Hospital), upon his retirement from the active list. Colonel Keller is to receive the full active duty pay and allowances of the grade held by him at the time of his retirement.

NOTES OF DECISIONS

Effect of special relief act. The relief be restricted by the application of laws act of March 4, 1929, granting to plaintiff governing retired pay and retired officers "the retired pay of chief pharmacist, equiv- generally. Shacklette v. U. S. (1930), 71 alent to the maximum pay and allowance Ct. Cls. 376. of that grade provided by law", is not to

1385. Same; officers over forty-five years of age when appointed.

* * And provided further, That any officer originally appointed as of July 1, 1920, at an age greater than forty-five years, may if he so elects, in lieu of retired pay at the rate hereinbefore provided, receive retired pay at the rate of 4 per centum of active duty pay for each complete year of commissioned service in the United States Army, the total to be not more than 75 per centum. Sec. 5, Army promotion act of July 31, 1935 (49 Stat. 507); U. S. C. 10:

* * **

9716.

The above provision is added as a new paragraph of this section.
For "rate herein before provided", see 1386a, post.

1386a. Same; officers retired on their own application.-That any officer on the active list of the Regular Army or Philippine scouts who, on the effective date of this Act or at any time thereafter, shall have completed not less than fifteen

nor more than twenty-nine years' service may upon his own application be retired, in the discretion of the President with annual pay equal to the product of 21⁄2 per centum of his active duty annual pay at the time of his retirement, multiplied by a number equal to the years of his active service not in excess of twenty-nine years. * Sec. 5, Army promotion act of July 31, 1935 (49 Stat. 507); U. S. C. 10: 9716.

* *

1386b. Same; captains and lieutenants with World War service retired on their own application.—* And provided further, That any officer of the Regular Army or Philippine scouts below the grade of major who served as a commissioned officer in the Army of the United States prior to November 12, 1918, and whose application for retirement under the provisions of this section has been approved by the President shall be retired in the grade of major with retired pay computed as hereinbefore provided as for a major with the same length of service. ** * * Sec. 5, Army promotion act of July 31, 1935 (49 Stat. 507); U. S. C. 10: 971b.

1387. Same; officers selected for elimination.

NOTES OF DECISIONS

The retired pay of an Army officer retired under the provisions of the act of June 30, 1922, for the reduction of the commissioned personnel of the Army was not increased by subsequent active service of the officer 1389. Same; service counted.

while on the retired list except to the extent that it was increased by an increase in his longevity or period pay resulting from such service. Harry W. Stephenson v. The United States (1935), 81 Ct. Cls. 634,

The compilers of the United States Code have not followed the recommendation of the War Department (J. A. G. 010.3, November 12, 1929, page 312) that the second paragraph of this section, based on section 1, act of June 10, 1922 (42 Stat. 626), U. S. C. 37: 3, be omitted as superseded.

"U. 8. C. 10: 972" should be eliminated from the citation to the second and third paragraphs. (J. A. G. 010.3, November 12, 1929, page 164.)

1390. Base pay of officers retired in Class B; service counted.

NOTES OF DECISIONS

pay based on his commissioned service in the Philippine Constabulary added to length of such service in the Regular Army. Byrne v. U. S. (1931), 73 Ct. Cls. 439.

Philippine Constabulary service.-An officer of the Regular Army, retired April 18, 1929, is entitled under the last paragraph of the original text of 1375, ante, to retired 1390a. Base pay of officers retired for length of service; service counted.* * Provided, That the number of years of service to be credited in computing the right to retirement and retirement pay under this section shall include all service now or hereafter credited for active duty pay purposes, any fractional part of a year amounting to six months or more to be counted as a complete year. * Sec. 5, Army promotion act of July 31, 1935 (49 Stat. 507); U. S. C. 10: 9716.

See 1386a, 1386b, ante.

1391. Base pay, retired Philippine Scout officers; service counted.

NOTES OF DECISIONS

In general.-A captain of Philippine | the retired pay of a captain only. Scouts, retired with that rank in 1918, and v. U. S. (1928), 66 Ct. Cls. 130. promoted to major in 1923, is entitled to

1393. Base pay, retired warrant officers.

De Court

"U. S. C. 10: 972" should be eliminated from the citation to the first paragraph of this section, and "U. S. C. 10: 972a" from the citation to the second paragraph (J. A. G. 010.3, November 12, 1929, pages 164, 155, 165, 307).

* * *

1394. Base pay, retired warrant officers, Army Mine Planter Service.And provided further, That warrant officers shall be retired Ch. IX, act of July

as now provided by law for officers of the Army, 9, 1918 (40 Stat. 882); U. S. C. 10: 276.

The above provision, referring to warrant officers, Army Mine Planter Service, omitted from the original Code and the Military Laws, 1929, is added as the first paragraph of this section (J. A. G. 010.3, December 12, 1929, page 2).

1395. Base and longevity pay, retired Army nurses.

That pursuant to regulations to be prescribed by the Secretary of War or the Secretary of the Navy, as the case may be, when a member of the Army Nurse Corps or of the Navy Nurse Corps shall be found by a board of medical officers to have become disabled in line of duty from performing the duties of a nurse, and such findings are approved by the head of the department concerned, she shall be retired from active service and placed upon the Nurse Corps retired list of the appropriate department in the grade to which she belonged at the time of her retirement and with retired pay at the rate of 75 per centum of the active-service pay received by her at the time of her transfer to the retired list. Act of June 20, 1930 (46 Stat. 790); U. S. C. 10: 937; 34: 436.

That the Act approved June 20, 1930, entitled "An Act to provide for the retirement of disabled nurses of the Army and the Navy", shall be construed, from its effective date, as authorizing the pay of members of the Army Nurse Corps and the Navy Nurse Corps retired thereunder to be computed upon the basis of the entire amount of the active-service pay received by each, respectively, at the time of her transfer to the retired list, including in the cases of superintendents of Nurse Corps, assistant superintendents, directors, assistant directors, and chief nurses the money allowance prescribed as part of their compensation by section 13 of the Act of June 10, 1922 (42 Stat. 631). Act of Mar. 3, 1931 (46 Stat. 1502); U. S. C. 10:938; 34: 437.

The above provisions are added as new paragraphs of this section (J. A. G. 010.3, July 10, 1931, pages 152, 64, 153).

"U. S. C. 34: 439" should be added to the citation to the original text of this section (J. A. G. 010.3, July 10, 1931, pages 78, 166).

1396. Base pay and allowances, retired enlisted men.

"U. S. C. 10: 982" should be eliminated from the citation to the second paragraph of this section (J. A. G. 010.3, November 12, 1929, page 169). For temporary reduction, see 1634d, post.

1397. Same; retired enlisted men commissioned during war. That retired enlisted men of the Army heretofore or hereafter retired who served honorably as commissioned officers of the Army of the United States or as commissioned officers, regular, temporary, or reserved, of the Navy or Marine Corps at some time between April 6, 1917, and November 11, 1918 shall be entitled to receive the pay of retired warrant officers of the Army; and retired enlisted men of the Regular Navy and Marine Corps heretofore or hereafter retired who served honorably as commissioned officers, regular, temporary, or reserve, in the military or naval service at some time between the aforesaid dates, and who at the time of their retirement were members of the Regular Navy or Marine Corps, shall be entitled to receive the pay of retired warrant officers of the Navy and Marine Corps, respectively: Provided, That such enlisted man retired prior to July 1, 1922, shall be entitled to receive the pay provided by law for retired warrant officers of equal length of service retired prior to that date, and that any such enlisted man retired subsequent to June 30, 1922, shall be entitled to receive the pay provided by

law for retired warrant officers of equal length of service retired subsequent to that date: Provided further, That nothing in this Act shall operate to prevent any person from receiving the pay and allowances of his grade, rank, or rating on the retired list when such pay and allowances exceed the pay to which he would be entitled under this Act by virtue of his commissioned service." Par. 10, sec. 127a, added to act of June 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 786), as amended by sec. 8. act of June 6, 1924 (43 Stat. 472), and act of June 24, 1936 (49 Stat. 1900); U. S. C. 10: 981; 34: 999.

The original text of this section has been amended as above.

NOTES OF DECISIONS

In general.-Retired enlisted men serv- rel. Bowling v. Hines (App. D. C. 1931), 50 ing under temporary commissions during F. (2d) 330,

World War received retired pay of warrant An enlisted man in the Regular Army, officers under earlier act only on discharge. | retired January 27, 1913, with pay. after McKenzie v. U. S. (1927), 63 Ct. Cls. 472..

Character of service.-Plaintiff served as a commissioned officer in the Army August 26, 1918, to June 14, 1919, when he was dismissed pursuant to sentence of a general

court-martial. On June 22, 1919, he reenlisted as a private and was retired as a first sergeant December 17, 1923, with character excellent. Held, that he was not entitled to the retired pay of warrant officer under this section, given to enlisted men who had served honorably as commissioned officers "at some time between April 6, 1917, and November 11, 1918." Monahan v. U. S. (1932), 76 Ct. Cls. 516.

thirty years' service, who subsequently ac-
cepted a commission and served as a first
(Emergency)
lieutenant in the National
Army from June 2, 1917, until his honorable
discharge on December 30, 1920, and who,
upon application, was granted retirement in
1928, with pay, under the Emergency Officers'
Retirement Act of May 24, 1928, for perma-
nent physical disability of more than 30 per
cent incurred in his commissioned service, is
not entitled to the retired pay of both serv-
ices and retirements.

Retirement pay and compensation for injuries in the line of duty, like pensions, are bounties or gratuities by the Government in recognition of services rendered; and the legislative history of gratuities granted by Congress shows a clear and unmistakable intention that a recipient shall not enjoy more than one at the same time. Robert E. Pate v. U. S. (1933), 78 Ct. Cls. 395.

Dual benefits.- Decisions of Director of Veterans' Bureau that veteran could not collect both pay of retired enlisted man and of retired emergency officer held not arbitrary or capricious, precluding mandamus. U. S. ex 1398. Longevity pay of officers below grade of brigadier general.

That notwithstanding the suspension during the fiscal years 1933, 1934, and 1935 of the longevity increases provided for in the tenth paragraph of section 1 of the Pay Adjustment Act of 1922, the personnel (active or retired) so affected shall be credited with service rendered subsequently to June 30, 1932, in computing their active or retired pay accruing subsequently to June 30, 1935: Provided, That this section shall not be construed as authorizing the payment of back longevity pay for the fiscal years 1933, 1934, and 1935 which would have been paid during such years but for the suspension aforesaid. Act of June 13, 1935 (49 Stat. 339); U. 8. C. 37: 3a.

The above provision is added as a new paragraph of this section. referred to, see 1634e, post.

For suspension

That hereafter the service of a cadet who may hereafter be appointed to the United States Military Academy or to the Naval Academy shall not be counted in computing for any purpose the length of service of any officer of the Army. Sec. 6, Army appropriation act of Aug. 24, 1912 (37 Stat. 594); U. S. C. 10: 684. "U. S. C. 14: 127a", "U. S. C. 33: 864a", "U. S. C. 34: 879b", and "U. S. C. 42: 62", should be added to the citation to the first paragraph of the original text of this section, based on section 11, act of May 18, 1920 (41 Stat. 604), which appeared in the original Code in 42: 62 only (J. A. G. 010.3, November 1, 1927, page 5; July 10, 1931, pages 110, 159).

"U. S. C. 19: 683a" should be eliminated from the citation to the second paragraph, and "U. S. C. 10: 683" added (J. A. G. 010.3, November 12, 1929, pages 117, 118).

"U. S. C. 10: 685" should be eliminated from the citation to the third paragraph. The original text of the fourth paragraph of this section, based on War Department appropriation acts of June 7, 1924 (43 Stat. 481); February 12, 1925 (43 Stat. 896); April 15, 1926 (44 Stat. 257), U. S. C. 10: 684, is omitted as expired. The above provision, omitted from the original Code of Military Laws, 1929, should be substituted therefor. (J. A. G. 010.3, November 12, 1929, page 119).

That for purposes of promotion, longevity pay, and retirement there shall be credited to officers of the Veterinary Corps all full-time service rendered by them as veterinarians in the Quartermaster Department, Cavalry, or Field Artillery prior to June 3, 1916. Sec. 1, act of June 28, 1930 (46 Stat. 829); U. S. C. 10: 1450.

That for the purposes of promotion, longevity pay, and retirement there shall be credited to officers of the Veterinary Corps, and former officers of the Veterinary Corps now on the retired list, all full-time service rendered by them as veterinarians in the Quartermaster Department, Cavalry, or Field Artillery: Provided, That no back pay or allowances shall be held to have accrued prior to the passage of this Act. Act of Feb. 12, 1936 (49 Stat. 1137); U. S. C.

10: 145α-1.

The above provisions are added as new paragraphs of this section.
NOTES OF DECISIONS

Service as clerk.-Under the first paragraph of the original text of this section, a warrant officer of the Coast Guard is entitled to have included for longevity pay purposes his previous service as clerk to the commandant at a naval station. Cartwright v. U. S. (1932), 74 Ct. Cls. 186.

"Officers in the service" defined.-The words "officers in the service" as used in the second sentence of the third paragraph of the original text of this section mean commissioned officers, and a warrant officer given a commission in 1924 is entitled to count only his commissioned service in computing base and longevity pay. Allen v. U. S. (1929), 67 Ct. Cls. 558.

Service at Military Academy.-An officer retired in 1923, called into service in 1927 and then retired at a higher rank, is not entitled to claim longevity for his service at the Military Academy under first paragraph, supra. Hoffman v. U. S. (1928), 66 Ct. Cls. 452.

Officers discharged and recommissioned.Captain demoted to first lieutenant in third pay period is not entitled after such period to increase of longevity pay which would have resulted if service in lower grade were counted as that of captain (last paragraph of original text). Eagle v. U. S. (1927), 63 Ct. Cls. 157.

1400. Same; service in Latin American Republics counted.

Citation should be changed to read: Act of May 19, 1926 (44 Stat. 565), as amended by act of May 14, 1935 (49 Stat. 218); U. S. C. 10: 540; 34: 441a.

1402. Longevity pay, warrant officers appointed from field clerk; service counted.

"U. S. C. 10: 596" should be added to the citations to both the second and third paragraphs of this section, based on acts of March 4, 1927 (44 Stat. 1417), and May 23, 1928 (45 Stat. 719), respectively (J. A. G. 010.3, November 12, 1929, page 100).

1403. Longevity pay, warrant officers, Army Mine Planter Service; service counted.

* **

And provided further, That in computing

for warrant officers

* * *

longevity pay ** authorized by this chapter, service on boats in the service of the Quartermaster Department of the Quartermaster Corps prior to the passage of this Act shall be counted: * Ch. IX, act of July 9, 1918 (40 Stat. 882); U. S. C. 10: 276.

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