2420. Status of retired officers.-Officers retired from active service shall be withdrawn from command and from the line of promotion, R. S. 1255. Notes of Decisions. Effect of retirement.-An Army officer is not discharged from service by his retirement; nor is he out of the service thereby. U. S. t. Gillmore (C. C. 1911), 189 Fed. 761; Tyler v. U. S. (1880), 16 Ct. Cl. 223. See also notes to 2407, ante. Officers on retired list.-Officers on the retired list are a part of the Army. U. S. v. Tyler (1881), 105 U. S. 244, 245, 26 L. Ed. 985; Wood v. U. S. (1882), 2 Sup. Ct. 551, 554, 107 U. S. 414, 27 L. Ed. 542; Flower v. U. S. (1895), 31 Ct. Cl. 35. And no one can be placed upon the retired list who is not an officer appointed in the manner required by Const. art. 2, sec. 2, cl. 2. Wood v. U. S. (1882), 2 Sup. Ct. 551, 554, 107 U. S. 414, 27 L. Ed. 542. 2421. Rights and liabilities of retired officers.-Officers retired from active service shall be entitled to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach thereof. R. S. 1256. Officers and men on the retired list were made subject to the Articles of War by art. 2 thereof. A. W. 2, chap. 52, post. The pay and allowances of retired officers were prescribed by R. S. 1274 and 1275, ante, 1643, 1647. Retired officers may be assigned to duty as provided in 2426-2442, post. Retired officer are specifically excepted from the provision forbidding all persons holding an office, the salary or annual compensation attached to which amounts to $2,500, from holding any other lucrative office, contained in 72, ante. See also 1649, 1650, 2367, ante. Notes of Decisions. Rights in general.-Persons who served during the Rebellion in the Army of the United States as officers in the Volunteer service, and have been honorably mustered out of such service, are entitled to bear the official title, and, upon occasions of cere mony, to wear the uniform of the highest grade they have held in the Volunteer service. (1897) 21 Op. Atty. Gen. 579. Court-martial.-A retired officer is subject to trial by court-martial, and a court Runkle martial has jurisdiction of offenses com- Assignment of unearned retired pay.-The assignment of the unearned half p y of a retired Army officer will not be enforced, as against public policy; he being still subject to military orders, under this section. Schwenk v. Wyckoff (1890), 46 N. J. Eq. 560, 20 Atl. 259. 2422. Officers retired on actual rank.-Officers hereafter retired from active service shall be retired upon the actual rank held by them at the date of retirement. R. S. 125}. If any officer of the Regular Army is retired while holding a temporary appointment made under the provisions of this paragraph, he shall have the rank of such temporary grade, and his retired pay shall be computed upon the pay of that grade. Scc. 127a, added to the act of June 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 787). Notes of Decisions. Rank on retirement.-Under act of July 28, 1866 (14 Stat. 337), a colonel of Cavalry was retired, with the rank and pay of a major general. By act of Mar. 3, 1875 (18 Stat. 512), his retired rank and pay were reduced to those of a brigadier general. Held, that his retired ran! of major general did not confer on him the office of a major general, and the Congress had power to change his retired rank and pay. Wood v. U. S. (1882), 2 Sup. Ct. 551, 107 U. S. 414, 27 L. Ed. 542. An Army officer who accepts a recess promotion, and thereafter becomes eligible for retirement by reason of age, efore the adjournment of Congress, and before the appointment is acted upon by the Senate, is entitled to the rank of his new appointment on his retirement. (1912) 2 Op. Atty. Gen. 598. 2423. Disabled officers retired on actual rank.-That all officers of the Army who have been heretofore retired by reason of disability arising from wounds received in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list and receive pay hereafter accordingly; and this section shall be taken and construed to include those now borne on the retired list placed upon it on account of wounds received in action: Provided, That no part of the foregoing act shall apply to those officers who had been in service as commissioned officers twenty-five years at the date of their retirement; nor to those retired officers who had lost an arm or leg, or has an arm or leg permanently disabled by reason of resection, on account of wounds, or both eyes by reason of wounds received in battle; and every such officer now borne on the retired list shall be continued thereon notwithstanding the provisions of section two chapter thirty-eight act of March thirty, eighteen hundred and sixty-eight; and be it also provided that no retired officer shall be affected by this act, who has been retired or may hereafter be retired on the rank held by him at the time of his retirenrent; Sec. 2, act of Mar. 3, 1875 (18 Stat. 512). Sec. 2, act of Mar. 30, 1868, referred to in this section, providing that any officer of the Army or Navy who should accept or hold any appointment in the diplomatic or consular service should be considered as having resigned, was incorporated in R. S. 1223, 2374, ante. The pay of any officer retained on the retired list under this act was not to be suspended or withheld, notwithstanding he accepted and held a diplomatic or consular office, by a provision of act of Mar. 3, 1891 (26 Stat. 872). Notes of Decisions. Construction of section in general.-This section should be construed to have a prospective effect only. (1890) 19 Op. Atty. Gen. 609. Wounds received in battle.-An aggravation of a disease from jolting in a saddle during active service is not "younds received in battle." Sec. 32, act of July 28, 1866 (14 Stat. 337). (1881) 17 Op. Atty. Gen. 7. Decision of examining board as to.-The opinion and recommendation of an examining board, made under a misconception of the law, can not control distinct statutory provisions, limiting retirements to instances where the disc bility was "occasioned by wounds received in battle." (1881) 17 Op. Atty. Gen. 7. Arm or leg permanently disabled by resection. The word "resection," as used in the first proviso to this section, is a surgical term, signifying the removal by excision of dead or diseased bone-more specially the removal of such bone, in that way, from the articular extremities or the unconsolidated extremities of fractured bones. In order to bring a case within the terms of the proviso, the essential circumstances required are: (1) A previous wound, causing some portion of the bone to become diseased or dead; (2) thereby necessitating a cutting off and removal of the dead or diseased part, which is accomplished; (3) whereby the limb is permanently disabled. It is sufficient if the disability is in part approximately attributable to the resectiɔn, though this be proportionately less than what is due to other contributory causes. (1876) 15 Op. Atty. Gen. 83. A partial resection of an arm or leg on account of wounds received in battle, where the operation is followed by permanent disability of the limb, and the disability is partly owing to such operation, suffices to bring a case within the proviso. (1877) 15 Op. Atty. Gen. 199. Where an officer was permanently disabled of a limb mainly from the effects of Change in rank. The retirement of a colonel of Cavalry in June, 1868, under sec. 32, act of July 28, 1866 (14 Stat. 337), with the rank and retired pay of a major general, because that was the rank of the command held by him when he was wounded, did not confer on him the office of a major general, and Congress had power to change his retired rank and pay to those of a brigadier general under this section, that being the actual rank held by him when he was wounded. Wood r. U. S. (1882), 2 Sup. Ct. 551, 554, 107 U. S. 414, 27 L. Ed. 542. 2424. Rank on retirement of the head of a staff corps or department.- * And any officer now holding office in any corps or department who shall hereafter serve as chief of a staff corps or department and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such corps or department chief: Sec. 26, act of Feb. 2, 1901 (31 Stat. 755). But see 2425, post. * * Any officer 2425. Rank on retirement of the chief of a branch.who shall have served four years as chief of a branch, and who may subsequently be retired, shall be retired with the rank, pay and allowances authorized by law for the grade held by him as such chief. Sec. 4c, added to the act of June 3, 1916, by sec. 4, act of June 4, 1920 (41 Stat. 762). Notes of Decisions. * ** * law for the retirement of such bureau chief," was enacted for the benefit of bureau chiefs who are placed on the retired list while so serving, and does not apply to an officer who having served as such is retired after relinquishing said office. Stokes v. U. S. (1919), 54 Ct. Cl. 70. Navy retired pay. The act of May 13, 1918, 35 Stat. 128, which provides "that any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by 2426. Detail of retired officers for duty at schools. That section twelve hun dred and twenty-five of the Revised Statutes, concerning the detail of officers of the Army and Navy to educational institutions be, and the same is hereby, amended so as to permit the President to detail under the provisions of that Act, and in addition to the details of the officers of the Army and Navy now authorized to be detailed under the existing provisions of said Act, such retired officers and noncommissioned officers of the Army and Navy of the United States as in his judgment may be required for that purpose to act as instructors in military drill and tactics in schools in the United States and Territories where such instructions shall have been authorized by the educational authorities thereof, and where the services of such instructors shall have been applied for by said authorities. Sec. 1, act of April 21, 1904 (33 Stat. 225). That no detail shall be made under this Act to any school unless it shall pay the cost of commutation of quarters of the retired officers or noncommissioned officers detailed thereto and the extra-duty pay to which they may be entitled by law to receive for the performance of special duty: Provided, That no detail shall be made under the provisions of this Act unless the officers and noncom 146345°-21-VOL 2- -19 1213 missioned officers to be detailed are willing to accept such position: Provided further, That they shall receive no compensation from the Government other than their retired pay. Sec. 2, act of April 21, 1904 (33 Stat. 225). * * * Provided further, That no officer on the active list shall be detailed for recruiting service or for duty at schools and colleges, not including schools of the service, where officers on the retired list can be secured who are competent for such duty: Act of Sept. 17, 1919 (41 Stat. 286). * R. S. 1225, as amended by act of Sept. 26, 1888, mentioned in this act, is set forth, ante, 2366. But see 1679, ante. 2427. Detail of a retired officer as president or professor of a college. That upon the application of any college, university, or institution of learning incorporated under the laws of any State within the United States, having capacity at the same time to educate not less than one hundred and fifty male students, the President may detail an officer of the Army on the retired list to act as president, superintendent, or professor thereof; and such officer may receive from the institution to which he may be detailed the difference between his retired and full pay, and shall not receive any additional pay or allowance from the United States. * Act of May 4, 1880 (21 Stat. 113). Provided, That nothing in the act entitled "An Act to increase the number of officers of the Army to be detailed to colleges," approved November third, eighteen hundred and ninety-three, shall be so construed as to prevent, limit, or restrict the detail of retired officers of the Army at institutions of learning under the provisions of section twelve hundred and sixty, Revised Statutes, and the Act making appropriations for the support of the Army, and so forth, approved May fourth, eighteen hundred and eighty, nor to forbid the issue of ordnance and ordnance stores, as provided in the Act approved September twenty-sixth, eighteen hundred and eighty-eight, amending section twelve hundred and twenty-five, Revised Statutes, to the institutions at which retired officers may be so detailed; and said act of November third, eighteen hundred and ninety-three, and said act of May fourth, eighteen hundred and eighty, shall not be construed to allow the full pay of their rank to retired officers detailed under said section twelve hundred and sixty, Revised Statutes, and said act of May fourth, eighteen hundred and eighty. Act of Aug. 6, 1894 (28 Stat. 235). Act of Nov. 3, 1893. referred to in this provision, is set forth, 2366, ante, and the provisions of act of Sept. 26, 1888, amending R. S. 1225, are set forth, 866, ante. 2428. Detail of a retired officer as professor upon his own application.-Any retired officer may, on his own application, be detailed to serve as professor in any college. R. S. 1260. Section 1260 is amended by adding at the end of the section the following: "But while so serving, such officer shall be allowed no additional compensation." Act of Feb. 27, 1877 (19 Stat. 243), amending R. S. 1260. Additional Notes of Decisions. compensation.-This section United States, not from the colleges. (1893) 20 Op. Atty. Gen. 687. refers to additional compensation from the 2429. Detail of retired officers to duty at the Soldiers' Home.-Retired officers of the Army may be assigned to duty at the Soldiers' Home, upon a selection by the commissioners of that institution, approved by the Secretary of War; and a retired officer shall not be assignable to any other duty. R. S. 1259. Section twelve hundred and fifty-nine is amended by adding at the end of the section the following: “Provided, That they receive from the Government only the pay and emoluments allowed by law to retired officers." Act of February 27, 1877 (19 Stat. 243), amending R. S. 1259. Sec. 2, act of Jan. 21, 1870 (16 Stat. 62). Res. Apr. 6, 1870, No. 32 (16 Stat. 372). Above limitation of details has been superseded as set forth in 2426-2428, ante, and 2430-2444, post. Notes of Decisions. Approval of selection.. -The Secretary of War may approve or disapprove of the selection made by the commissioners. (1882) 17 Op. Atty. Gen. 449. Duties that may be assigned. A retired Army officer may be employed by the War Department to supervise work where he could not have been assigned to that duty. Yates v. U. S. (1890), 25 Ct. Cl. 296. Other duty already assigned.-This section held not to require the amendment of the appointment held by a retired Army Pay of officers assigned to Soldiers' 2430. Retired officers detailed to recruit volunteer forces.-That in the organization of a recruiting system, after Congress shall have authorized the raising of volunteer forces, the President is authorized to employ retired officers, noncommissioned officers, and privates of the Regular Army, either with their rank on the retired list or, in the case of enlisted men, with increased noncommissioned rank; or he may, by and with the advice and consent of the Senate, appoint and employ retired officers below the grade of colonel, with increased volunteer commissioned rank not to exceed in the case of any officer one grade above that held by him upon the retired list, or retired enlisted men with volunteer commissioned rank not above the grade of first lieutenant: Provided, That retired officers and enlisted men while thus employed shall not be eligible for transfer to the field units, but shall receive the full pay and allowances of the respective grades in which they are serving, whether volunteer or regular, in lieu of their retired pay and allowances: Provided further, That upon the termination of the duty or, in case of those given volunteer rank, upon muster out as volunteers said retired officers and enlisted men shall revert to their retired status. Sec. 11, act of Apr. 25, 1914 (38 Stat. 350). and the Secre 2431. Assignment of retired officers to active duty.tary of War may assign retired officers of the Army, with their consent, to active duty in recruiting, for service in connection with the organized militia in the several States and Territories upon the request of the governor thereof, as military attachés, upon courts-martial, courts of inquiry and boards, and to staff duties not involving service with troops; and such officers while so assigned shall receive the full pay and allowances of their respective grades. Act of Apr. 23, 1904 (33 Stat. 264). In time of war retired officers may be employed on active duty in the discretion of the President, and when so employed they shall receive the full pay and allowances of their grades. Sec. 127a, added to the act of * June 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 785). 1 |