In submitting the question he says that inasmuch as the Act of April 6, 1914, imposes the burden on the officer or employee of paying from his own pocket actual expenses in excess of five dollars per day, it should be strictly construed and not held to apply, where, as in the Act of July 24, 1917, Congress has made provision for "the actual and necessary expenses," without imposing a statutory limit thereto. 2. This office cannot concur in this view. The Act of April 6, 1914, prescribes a maximum as to the expenses which may be incurred and allowed, except as "otherwise expressly provided by law." The Act of July 24, 1917, does not contain an express authority for exceeding the maximum prescribed in the Act of April 6, 1914, and this office is clearly of the opinion that the statutes construed together only authorize the payment of actual and necessary expenses within the limit prescribed by the Act of April 6, 1914. In an opinion of this office, dated June 22, 1918, with reference to the expenses of a proposed mission, composed of officers and civilian experts to investigate the manufacture of airplanes abroad, on the question as to the payment of their actual and necessary expenses under the Signal Corps appropriation Act of July 24, 1917 (40 Stat. 243) it was said in answer to the inquiry as to the limit of actual and necessary expenses which could be allowed that— "The statute under consideration simply authorizes the payment of the 'actual and necessary expenses' of officers, etc., and by the Act of April 6, 1914 (38 Stat. 318 [Comp. St. 1916, § 3236a]), it is provided that: 'Unless otherwise expressly provided by law no officer or employee of the United States shall be allowed or paid any sum in excess of expense actually incurred for subsistence while traveling on duty outside of the District of Columbia and away from his designated post of duty, nor any sum for such expenses actually incurred in excess of $5. per day. * *' * "By paragraph 733, Army Regulations, the expenses payable to civilians when traveling under competent orders are limited to a maximum of $4.50 per day. There is no express authority in the Act of July 24, 1917, supra, for exceeding the maximum limit prescribed in the Act of April 6, 1914, and it must be held therefore that no payment of actual and necessary expenses can be made in excess of $5 per day. As to the civilians, as stated above, the regulations further limit the reimbursements of actual expenses to a maximum of $4.50 per day, and this amount cannot be exceeded without special authority of the Secretary of War. In the opinion of this office, however, it would be competent for the president to supplement the provision made by the Act of July 24, 1917, supra, by authorizing reimbursement of actual and necessary expenses of members of this mission in excess of the amount payable under the Act of July 24, 1917, from the Emergency Fund Appropriation, expendable in the discretion of the President." [Signed] James J. Mayes, Acting Judge Advocate General. MIL.L.-51 59. EFFECT OF INDUCTION AS TO PAY 9th Ind. War Dept., J. A. G. O., July 29, 1918.-To the Office of the Provost Marshal General. 1. These papers are referred to this office for an expression of its views as to the status of one Commodore Tilden (colored) who makes a claim for pay and subsistence as a private in the United States Army from April 1, 1918, to July 1, 1918. 2. The facts bearing on his right to the status of a soldier in the Federal Service, and thus entitled to pay and subsistence, as gathered from the papers are as follows: He duly filled out his questionnaire and it was received and filed by his local board (for the city of New Castle, Pa.). This local board in making up a call sent to Tilden a notice, Section 301, Selective Service Regulations (Form 1028). This notice was duly received by Tilden and he presented himself before the board at the day and hour named therein, having waived all claims for exemption. He was told to wait a while; that the Board could not send him to a camp that day and at a later day he was again told to wait. He has waited until the present time to be sent to camp and has not been sent. On July 7, 1918, he presented informally his claim to the Quartermaster General for pay and subsistence from April 1, 1918, the day he appeared in response to the order (Form 1028), supra,. before the local board, this according to his claim amounting to $168.30. The Quartermaster General by 7th indorsement, July 15, 1918, states: "The question involved in these papers appears to be one for administrative determination, as to whether this soldier is to be considered as having been inducted into the Federal Service as of the date on which he was first directed to report to the Local Board." 3. In the view of this office, on these facts, there is no doubt that he was duly inducted into the Federal Service on April 1, 1918, when in response to the order of his Local Board he appeared before them in all respects ready and fit. This order (Form 1028), supra, was regular. He was on time and was properly qualified as far as is shown by the papers. Furthermore Form 1028 contains the following, inter alia: * ** ** "You are hereby notified that you have now been selected for immediate military service. From and after the day and hour just named you will be a soldier in the military service of the United States." In the notice which must be enclosed with Form 1028 sent to a selected man in pursuance of section 302, Selective Service Regulations, there occurs the following: "The day and hour specified on the Classification List of this Local Board, and on the order and notice of induction into military service which accompanies this notice for you to report to this Local Board for military duty, is the time that marks your actual obligation as a soldier of the United States. "Failure to report promptly at the hour and on the day named is a grave military offense, for which you may be court-martialed. Willful failure to report, with an intent to evade military service, constitutes desertion from the Army of the United States, which in time of war is a capital offense." 4. It appears, 4th indorsement, July 2, 1918, that a mistake was made by the local board in including him among white selectives, although the board admits that "It is true that sometime some months ago, in making up of our calls, Commodore Tilden was sent Form 1028." By way of excuse the board states: "At the time the mistake was made we thought we would get a call for colored troops in a short time, but we have never had such a call since before the first of January." All that was done to correct the mistake is set forth as follows: "The last time Tilden was in, he showed the Chief Clerk his Form 1028, and was told that he would get another form like that when there was a call for him, and the Chief Clerk then threw the old form into the waste paper basket. Tilden remonstrated, and insisted on having it, which he did." 5. This office cannot approve this manner of separating a soldier from the Federal service by throwing his order, that properly inducted him into the service, into the waste paper basket. The method by which a soldier, once inducted into the service, as Tilden undoubtedly was, must be removed therefrom, is contained in Army Regulations, paragraph 139, and 108th Article of War (Comp. St. 1916, § 2308a). In this connection attention is called to Ops. J. A. G. 334.3, June 27, 1918, in which is considered a somewhat similar case, and the following stated: "In the instant case the registrant having been inducted into the service by the local board, should have been received and accepted by the mustering officer at the mobilization camp and upon the facts of the error in classification becoming known and the ascertainment that the registrant was ineligible and morally unfit for military service, he should have been discharged upon his own application if such was made in conformity to the telegraphic order above quoted, and if no such application was made then his discharge should have been accomplished under authority of Army Regulations 139." 6. As viewed by this office, Commodore Tilden is now and has been since April 1, 1918, a soldier in the Federal Service, and although inducted possibly under a misapprehension as to his color, he will remain in the Federal Service until by some competent authority, in pursuance of the legal methods above indicated, his present legal status is changed and he removed from the service. In the opinion of this office he is entitled to his pay (and subsistence, if allowable) as a private for the period which he claims, and the question should be so determined administratively and a statement of his account made on a payroll or other voucher form, and if he is not sufficiently informed to make a proper voucher, he ought to be given adequate assistance by some officer of the United States. [Signed] James J. Mayes, Acting Judge Advocate General. (II) COURTS-MARTIAL AND DISCIPLINARY TREATMENT 1. COURT-MARTIAL JURISDICTION OF PRISONERS OF WAR Discipline VIII G. December 27, 1917. From: Office of the Judge Advocate General. Subject: Court-martial jurisdiction of German prisoners of war. 1. An opinion is asked whether German prisoners of war in prison barracks are subject to court-martial jurisdiction for offenses of a civilian nature and whether military tribunals or provost courts may be established for trial of such prisoners. 2. The doctrines of international law on jurisdiction over prisoners of war are embodied in the first sentence of article 8 of the regulations annexed to Hague Convention No. 4, of 1909 (Rules of Land Warfare, 1914 edition, page 158), as follows: "Prisoners of war shall be subject to the laws, regulations, and orders enforced in the armies of the state in whose power they are;” for, though the Hague regulations are not, in a strict sense, in force at the present time, nevertheless, especially as they were ratified by Austria-Hungary, Germany, and the United States, they are good evidence of what is just and acceptable. 3. The doctrines of the United States are found in the Rules of Land Warfare, paragraphs 51, 68 and 69; and are to the effect that— "If prisoners commit crimes or acts punishable according to the ordinary penal or military laws they are subject to the military jurisdiction of the captor." 4. Special courts-martial do not have jurisdiction over prisoners of war, for, according to Article of War 13 (Comp. St. 1916, § 2308a), such courts-martial have jurisdiction over only the persons enumerated in Article of War 2. 5. According to Article of War 12 the jurisdiction lies in a general court-martial; for prisoners of war are included under persons who by the law of war are "subject to trial by military tribunals," to quote the language of that Article. 6. While the Manual for Courts-Martial remains as it is, it is inadvisable to resort to a provost court or a military commission in such See Manual for Courts-Martial, Par. 3 (a). 7. What has been said is applicable both to military offenses and to offenses of a civilian nature. [Signed] S. T. Ansell, Acting Judge Advocate General. 2. EFFECT OF ERROR IN COURT-MARTIAL TRIAL Discipline XIV E 7. From: Office of the Judge Advocate General. January 22, 1918. To: Major Nath B. Barnwell, U. S. R., Department Judge Advocate, Hdqrs. Southeastern Dept., Charleston, S. C. Subject: Effect of failure of the president of a general court-martial after a plea of guilty to explain the elements of offenses. and to advise the accused of the maximum punishment. 1. You state that in the case of Private —, Hdqrs. Company, 109th Infantry, which is now before the reviewing authority, the accused is charged with fraudulent enlistment. That in explaining the nature of the offense charged and the maximum punishment, the president of the court committed an error and did not state the nature of the offense and the maximum punishment correctly. You refer to the memorandum of the Judge Advocate General in the case of Private White (G. C. M. O. 108169) in which it was held that the findings and the sentence of the court were invalid because of the failure of the court to advise the accused of the nature of the offense with which he was charged and the maximum penalty that might be imposed. You ask if failure to observe the provisions of paragraph 154 of the Manual for Courts-Martial * * is to be conclusively presumed to injuriously affect the substantial rights of the accused so as to render the proceedings invalid as a matter of law." 2. After the accused has pleaded guilty the matter of advising him of the nature of the offenses with which he has been charged and the maximum punishment that may be imposed is a matter of procedure. The failure to advise the accused or an error in the advice given will not invalidate the proceedings unless in the opinion of the reviewing authority or confirming authority the error complained of has injuriously affected the substantial rights of the accused. In every case where an error of this nature has occurred, the question of whether or not the substantial rights of the accused have been injuriously affected is for the determination of the reviewing or confirming authority. If the rights of the accused have not been injuriously affected, the record is not invalidated by the error. If they have been injuriously affected, the record is invalidated by the error. 37th Article of War. (Comp. St. 1916, § 2308a); Par. 154, M. C. M. 3. In the White Case (Ibid.) the error complained of had, in the opinion of this office, injuriously affected the substantial rights of the accused. The precedent followed in that case is not applicable to all cases where like error has occurred. Its applicability depends not on whether or not error has occurred but on whether or not the error has injuriously affected the substantial rights of the accused. [Signed] S. T. Ansell, Acting Judge Advocate General. |