Historical Note. This chapter is not intended to give a full statement of the pension laws, but only so much thereof as will show the general policy of the Government in regard to pen. sions and furnish the information necessary to enable officers to answer the questions likely to arise in the service. For a full statement of the law on the subject, reference is made to the publication of the Pension Bureau, "Laws of the United States governing the granting of Army and Navy pensions and bounty lands," etc. Pensions for disability incurred in the service were granted by R. S. 4692. Pensions to soldiers and sailors who served ninety days or more in the War of the Rebellion and who are incapacitated for the performance of manual labor, and to their widows and children and dependent parents, were granted by the Invalid Pension act of June 27, 1890, as amended by act of May 9, 1900 (26 Stat. 182; 31 Stat. 170). Pensions to soldiers of the Indian Wars and to their widows were granted by act of July 27, 1892, act of June 27, 1902, and act of May 30, 1908 (27 Stat. 281, 282; 32 Stat. 399; 35 Stat. 553). Pensions to soldiers and sailors of the Mexican War and to their widows were granted by R. S. 4730, 4731, and by act of Jan. 29, 1887 (24 Stat. 371, 372), act of Jan. 5, 1893 (27 Stat. 413), act of April 23, 1900 (31 Stat. 137), and act of Mar. 3, 1903 (32 Stat. 1228). Pensions to army nurses were granted by act of Aug. 5, 1892 (27 Stat. 348). Pensions to any person who served 90 days or more in military or naval service of the United States during the Civil War, or 60 days or more in the war with Mexico, were granted by the service pension act, act of May 11, 1912 (37 Stat. 112, 113, 1019). No pension was to be allowed or paid to any officer or enlisted man in the RevenueCutter Service by a provision of act of May 27, 1908 (35 Stat. 322). Pensions to all persons who served 90 days or more in military or naval service of the United States during the War with Spain, the Philippine insurrection, and the China relief expedition were granted by act of June 5, 1920 (41 Stat. 982–983). No person duly appointed or commissioned to be an officer of the volunteer service during the War of the Rebellion, and who was subject to the mustering regulations at the time, was to be held to have been mustered into the service and the grade named in his appointment or commission from the date from which he was to take rank under its terms, whether it was actually received by him or not and was entitled to pay, etc., and pension as if actually mustered at that date, by act of Feb. 24, 1897 (29 Stat. 593), which is no longer operative. See 1707, ante. Officers of the Officers' Reserve Corps were entitled to pensions only for disability incurred in the line of duty and while in active service, by a provision of sec. 38. act of June 3, 1916 (39 Stat. 190), which was stricken out by sec. 31, act of June 4, 1920 (41 Stat. 775). Members of the Regular Army Reserve were entitled to pensions only through disability incurred while on active duty in the service of the United States by a provision of sec. 32, act of June 3, 1916 (39 Stat. 188), which was stricken out by sec. 31, act of June 4, 1920 (41 Stat. 775). For pensions to widows and children, see 1851, post, and notes thereto. 1839. Pensions for disabilities.-Every person specified in the several classes enumerated in the following section, who has been, since the fourth day of March, eighteen hundred and sixty-one, or who is hereafter disabled under the conditions therein stated, shall, upon making due proof of the fact, according to such forms and regulations as are or may be provided in pursuance of law, be placed on the list of invalid pensioners of the United States, and be entitled to receive, for a total disability, or a permanent specific disability, such pension as is hereinafter provided in such cases; and for an inferior disability, except in cases of permanent specific disability, for which the rate of pension is expressly provided, an amount proportionate to that provided for total disability; and such pension shall commence as hereinafter provided, and continue during the existence of the disability. R. S. 4692. The laws providing for gratuities or payments in the event of death in the service and existing pension laws shall not be applicable after the enactment of this amendment to any person in the active military or naval service on the sixth day of October, nineteen hundred and seventeen, or who thereafter entered the active military or naval service, or to their widows, children, or their dependents, except in so far as rights under any such law have heretofore accrued. * Sec. 312, added to the act of Sept. 2, 1914, * by sec. 2, act of Oct. 6, 1917 (40 Stat. 408), as amended by sec. 17, act of June 25, 1918 (40 Stat. 613). Section 4693 is set out post, 1841. See 1835, ante. The above change of policy is based on institution of compensation for disability and war-risk insurance. Notes of Decisions. Disability. The disability mentioned in act of Apr. 23, 1800, in order to warrant an application to be admitted on the roll, is that degree of personal disability which renders the individual less able to provide for his subsistence. The word "disabled" means any degree of personal disability which renders the individual less able to provide for his subsistence. (1832) 2 Op. Atty. Gen. 542. The granting of a pension for " permanent specific disability" does not necessarily imply an adjudication that the disability is one which can not terminate. Α disability may properly be said to be permanent when it appears to be chronic or of indefinite future duration. (1896) 21 Op. Atty. Gen. 287. Characteristics of pension and nature of pension system.-While there is no vested right in a pension which can not be devested by the mere exercise of the legislative will, if the beneficiaries thereof have any rights, they are vested ones so long only as the statute creating the pension remains in force and unchanged, subject to be devested at any time that the legislature may desire. While such a statute, therefore, is in full force, and the right of the beneficiary under it has accrued and is permitted to exist, the rules for the interpretation of contracts may be applied in determining the right of the parties. Rudolph v. U. S. (1911), 36 App. D. C. 379. A pension is a periodical allowance of money to a person, in the nature partly of a gratuity and partly of payment for past benefits conferred; payment because it is supposed to be in consideration of previous services rendered to the Government or the public, for which the compensation before made, if any, was inadequate in proportion to the benefits received and the ability of the Nation in its prosperity to pay; a gratuity because it is not ordinarily founded on contract, and in such case can not be demanded as a legal right until the Government has acknowledged its moral obligation and made the grant. As it is purely voluntary, its payment must be made and accepted in exact conformity with the terms of the grant, and must be subject to the limitations, conditions, and exceptions therein contained. Donnelly v. U. S. (1881), 17 Ct. Cl. 105, 108. A pension is a gratuity involving no claim of right, nor agreement of parties, nor rights of third persons. Harrison v. U. S. (1885), 20 Ct. Cl. 122. The whole system of pensions is part of the Military Establishment of the Government. (1855) 7 Op. Atty. Gen. 594. Power of Congress over pensions.-Pensions are the bounties of the Government, which Congress has the right to give, withhold, distribute, or recall, at its discretion. No pensioner has any vested right to his pension. McCulloch v. Maryland (1819), 4 Wheat. (17 U. S.) 316; [C. S. p. 9799]. Disease contracted in transitu. See (1882) 17 Op. Atty. Gen. 457; note under 1841, post. Accrued pensions.-A sergeant in the Marine Corps who, prior to the enactment of the war-risk insurance act of Oct. 6, 1917, had served in the corps for more than 21 years and who had become "disabled from sea service" by a wound received in action in June, 1916, but who, though entitled to honorable discharge from the service upon Oct. 6, 1917, did not actually receive his discharge until Nov. 5, 1917, is entitled both to the benefits of R. S. 4756 and also to whatever allowance he may be otherwise entitled to under the provisions of the war-risk insurance act. 31 Op. Atty. Gen. 296. 1840. Pensions based on injuries in line of duty.-No person shall be entitled to a pension by reason of wounds or injury received or disease contracted in the service of the United States subsequent to the twenty-seventh day of July, eighteen hundred and sixty-eight, unless the person who was wounded, or injured, or contracted the disease was in the line of duty; and, if in the military service, was at the time actually in the field, or on the march, or at some post, fort, or garrison, or en route, by direction of competent authority, to some post, fort, or garrison; or, if in the naval service, was at the time borne on the books of some ship or other vessel of the United States, at sea or in harbor, actually in commission, or was at some naval station, or on his way, by direction of competent authority, to the United States, or to some other vessel or naval station, or hospital. R. S. 4694. * Provided, That all applicants for pensions shall be presumed to have had no disability at the time of enlistment; but such presumption may be rebutted. Act of Mar. 3, 1885 (23 Stat. 362). Notes of Decisions. Line of duty.-A statement that the applicant contracted a certain disease in the line of his duty is not false if, though he had it before enlisting, he was then cured, and contracted it again while in the service. Rhodes v. U. S. (1897), 79 Fed. 740, 25 C. C. A. 186. A seaman disabled by punishment inflicted by an enemy for endeavoring to escape from him after having been taken prisoner, is within the spirit and letter of act of Apr. 23, 1800, granting pensions to seamen disabled whilst in the line of their duty. (1821), 1 Op. Atty. Gen. 461. When the statute provides pension for disability or death, occasioned by wounds or injuries received, casualty occurring, or disease contracted, in the line of duty, it intends that the performance of duty must have relation of causation or consociation, mediate or immediate, to the wound, the casualty, the injury, or the disease which produces the disability or death. (1855) 7 Op. Atty. Gen. 150. To determine the right of pension, the question is not whether, when the cause of disability or death occurred, the party was on duty or not, in active service, or on furlough or leave, in arrest or not, but whether, in any of the possible conditions of service, the cause of disability or death was appurtenant to, dependent upon, ur connected with, acts within, or acts without, the line of duty. Id. It is according to public policy to presume in favor of the service, where the line of duty enters potentially into the causes of disability or death, although it be not certainly provable that it was the exclusive or predominant cause. Id. The phrase "in the line of duty," has been uniformly used in the statutes in defining the right to pensions. (1881) 17 Op. Atty. Gen. 172. Injury due to misconduct.-If an assault on a claimant was brought on by his own misconduct, he can not be said to have been disabled while in the line of duty, and is not entitled to a pension. If there did not intervene between the contact and the injury an adequate and sufficient cause, for which claimant was responsible, he is entitled to pension. A wound is such an improbable effect of duty in the service as to throw upon the applicant the burden of showing that his misconduct was not the cause of the injury, but if this is done with reasonable certainty the claim should be allowed. (1881) 17 Op. Atty. Gen. 172. 1841. Persons in military service eligible for pensions.-The persons entitled as beneficiaries under the preceding section are as follows: First. Any officer of the Army, including regulars, volunteers, and militia, or any officer in the Navy or Marine Corps, or any enlisted man, however employed, in the military or naval service of the United States, or in its Marine Corps, whether regularly mustered or not, disabled by reason of any wound or injury received, or disease contracted, while in the service of the United States and in the line of duty. Second. Any master serving on a gunboat, or any pilot, engineer, sailor, or other person not regularly mustered, serving upon any gunboat or war vessel of the United States, disabled by any wound or injury received, or otherwise incapacitated while in the line of duty, for procuring his subsistence by manual labor. Third. Any person not an enlisted soldier in the Army, serving for the time being as a member of the militia of any State, under orders of an officer of the United States, or who volunteered for the time being to serve with any regularly organized military or naval force of the United States, or who otherwise volunteered and rendered service in any engagement with rebels or Indians, disabled in consequence of wounds or injury received in the line of duty in such temporary service. But no claim of a State militiaman, or non-enlisted person, on account of disability from wounds, or injury received in battle with rebels or Indians, while temporarily rendering service, shall be valid unless prosecuted to a successful issue prior to the fourth day of July, eighteen hundred and seventy-four. Fourth. Any acting assistant or contract surgeon disabled by any wound or injury received or disease contracted in the line of duty while actually performing the duties of assistant surgeon or acting assistant surgeon with any military force in the field, or in transitu, or in hospital. Fifth. Any provost-marshal, deputy provost-marshal, or enrolling-officer disabled, by reason of any wound or injury, received in the discharge of his duty, to procure a subsistence by manual labor. R. S. 4693. See "Historical Note" at head of this chapter. Notes of Decisions. Officers. The fact that a pension is granted by the express terms of a statute I will not authorize a court to Lold by construction that it was because he was an officer in the Army. Byrnes v. U. S. (1891), 26 Ct. Cl. 302. Professors of Military Academy.-The professors of the Military Academy at West Point are commissioned officers of the Army, whose pay and allowances are assimilated to those of a lieutenant colonel and a colonel; and in case of such disability as is described in this section they are entitled to pensions at the same rate with officers of the rank of lieutenant colonel. (1882) 17 Op. Atty. Gen. 359. Volunteer not mustered.-A person who enlisted in the Forty-seventh Regiment of the Pennsylvania Militia pursuant to the President's proclamation for volunteers to serve for six months, which regiment was not actually mustered into service of the United States, but was engaged in the service of the United States under the command of an officer of the United States Army, has a pensionable status within this subdivision. (1892) 20 Op. Atty. Gen. 322. Contract surgeon.-The fact that a con. tract surgeon is entitled to a pension does not affect his rights to longevity pay under another statute. Byrnes v. U. S. (1891), 26 Ct. Cl. 302. Disease contracted in transitu.-Where a contract surgeon went aboard a steamer to proceed to the place to which he had been ordered, but before the departure of the boat, he became sick, and was removed to a hospital, where he died in a few days of typhoid fever, leaving a dependent mother, but no widow or child, held, that the dependent mother is entitled to be enrolled as a pensioner, on the ground that the deceased, when taken down with sickness, was "in transitu" under orders. (1882) 17 Op. Atty. Gen. 457. When an officer is ordered to go to a given point for duty and has set about his preparations to go, his transitu has begun. (1882) 17 Op. Atty. Gen. 457. 1842. National Guardsmen entitled to pensions.-That when any officer, noncommissioned officer, or private of the militia is disabled by reason of wounds or disabilities received or incurred in the service of the United States he shall be entitled to all the benefits of the pension laws existing at the time of his service, and in case such officer, noncommissioned officer, or private dies in the service of the United States or in returning to his place of residence after being mustered out of such service, or at any time, in consequence of wounds or disabilities received in such service, his widow and children, if any, shall be entitled to all the benefits of such pension laws. Sec. 22, act of Jan. 21, 1903 (32 Stat. 779). When any officer or enlisted man of the National Guard drafted into the service of the United States in time of war is disabled by reason of wounds or disability received or incurred while in the active service of the United States in time of war, he shall be entitled to all the benefits of the pension laws existing at the time of his service, and in case such officer or enlisted man dies in the active service of the United States in time of war or in returning to his place of residence after being mustered out of such service, or at any other time in consequence of wounds or disabilities received in such active service, his widow and children, if any, shall be entitled to all the benefits of such pension laws. Sec. 112, act of June 3, 1916 (39 Stat. 211). That the provisions of section one hundred and twelve of the national defense Act of June third, nineteen hundred and sixteen, shall be applicable to any officer or enlisted man drafted into the service of the United States pursuant to the provisions of this joint resolution. Sec. 2, Joint Res. 23, July 1, 1916 (39 Stat. 340). 1843. Pensions not granted to soldiers while in military service.-The period of service of all persons entitled to the benefits of the pension-laws, or on account of whose death any person may become entitled to a pension, shall be construed to extend to the time of disbanding the organization to which such persons belonged, or until their actual discharge for other cause than the expiration of the service of such organization. R. S. 4701. Officers absent on sick-leave, and enlisted men absent on sick-furlough, or on veteran-furlough with the organization to which they belong, shall be regarded in the administration of the pension laws in the same manner as if they were in the field or hospital. R. S. 4700. * * ** And provided further, That hereafter no pension shall be allowed or paid to any officer, noncommissioned officer, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list. * * * Act of Mar. 3, 1891 (26 Stat. 1082). The act of Mar. 3, 1891, set out here, superseded a provision excluding retired officers of the Army, Navy, or Marine Corps from the pension list contained in sec. 2, act of Aug. 29, 1890 (26 Stat. 371). This provision also superseded R. S. 4724, which provided that no person in the Army, Navy, or Marine Corps should draw both a pension as an invalid and the pay of bis rank or station in the service, unless the disability for which the pension was granted be such as to occasion his employment in a lower grade, or in the civil branch of the service. Notes of Decisions. Construction and operation.-Under the pension appropriation act of Aug. 20, 1890 (26 Stat. 370), and this act, no pension moneys can be drawn by retired officers of the Army, Navy, or Marine Corps after the date of the former act, but these two statutes are not to be given a retrospective effect so as to cut off arrears already due. (1896) 21 Op. Atty. Gen. 408. 1844. Pension according to rank when injured.-Every commissioned officer of of the Army, Navy, or Marine Corps shall receive such and only such pension as is provided in the preceding section, for the rank he held at the time he received the injury or contracted the disease which resulted in the disability, on account of which he may be entitled to a pension; and any commission or presidential appointment, regularly issued to such person, shall be taken to |