OPINIONS OF THE JUDGE ADVOCATE GENERAL.

DETACHED SERVICE: Commanding of company by battalion adjutant.

The question was presented whether a battalion adjutant can accumulate eligibility for detached service by commanding a company, and, if so, whether he can at the same time draw forage for his horse. By the Act of February 2, 1901 (31 Stat., 750), it is provided that captains and lieutenants not required for duty with the companies shall be available for detail as regimental and battalion staff officers and such other details as may be authorized by law.

Held, that so long as an officer remains battalion adjutant his primary duties pertain to that oflice, with which the normal duties of company commander are incompatible; that the detached service law would require that his primary duty be with his company; that if he were required to perform all the duties of company commander he could not perform those mounted duties of battalion adjutant for which the law provides forage and mounted pay, and in such circumstance he would not be entitled thereto; that if he performed such duties of a company commander as were not incompatible with those of battalion adjutant, he would not be entitled to accumulate eligibility for detached service by reason of such duty as a company commander. (72-350, J. A. G., June 15, 1915.)

DETACHED SERVICE: Detail of a major of infantry as captain of infantry team, national matches.

The Act of April 27, 1914 (38 Stat. 357), forbids the detachment for duty of any kind of any colonel, lieutenant colonel, or major of the line who has not been actually present for duty for at least two of the last preceding six years with a command composed of not less than two troops, batteries or companies of that branch of the Army in which he holds a commission, and provides:

"That temporary duty of any kind hereafter performed with United States troops in the field for a period or periods the aggregate of which shall not exceed sixty days in any one calendar year * shall * * hereafter be counted as actual presence for duty with such organization or command."

*

On the question whether a major of infantry who was not eligible for detached service could legally be detailed as captain of the infantry team for the national matches at Jacksonville, Fla., during October, 1915, which would necessitate his detachment for about 50 days.

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Held, that the training of an infantry rifle team does not come within the definition of duty with troops in the field contemplated by the statute, but is more nearly allied to garrison instruction; that it is field service only in the sense that the duty is performed out of doors and involves the use of arms, being similar to training in rifle fire upon a range, an adjunct to a post, which service is not regarded as "field service"; that therefore the proposed assignment could not be counted as duty with troops within the meaning of the Act of April 27, 1914.

(6–124, J. A. G., June 5, 1915.)

LINE OF DUTY: Soldier stabbed to death in altercation in which he was the aggressor.

Following a dispute between a corporal and a private, between whom there had been ill feeling for some time, the former, after calling the private a vile name, threw a bucket of water upon him, whereupon the private stabbed his assailant with a case knife, killing him.

Held, that as the corporal's death was the result of an altercation in which he was the aggressor and therefore guilty of an infraction of military discipline, his death should be regarded as having occurred as the result of his own misconduct and not in line of duty.

(54-022.1, J. A. G., June 30, 1915.)

MEDICAL TREATMENT: Expenses for services of osteopathic physician.

An officer of the Army on duty without troops incurred an expense of $20 for osteopathic treatment and submitted vouchers for payment of the account, assuming that his procedure was authorized by Par. 1476 A. R., which provides in part that when "medical treatment" is required by an officer on duty without troops and it can not otherwise be had, he may "employ the necessary civilian service to furnish the same, and just accounts therefor will be paid by the Medical Department."

Held, that osteopathic treatment is not "medical treatment" within the meaning of the regulation; that as the Medical Department does not provide for osteopathic treatment through its own organization, it is not to be presumed that the regulation is susceptible of an interpretation that will authorize it; that with the sanction of Congress, the Medical Department of the Army adheres to the ancient school of medicine and surgery; and that therefore all persons in the army service who require the services of a civilian physician at public expense are limited to the procurement of a physician whose methods of treatment are properly termed the practice of medicine and surgery. (6-227.6, J. A. G., June 16, 1915.)

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PAY AND ALLOWANCES: Forage allowance to retired officers assigned to active duty.

A retired officer of the Army was detailed, with his consent, on active duty in the Army War College as translator, and the question was presented whether he was entitled to forage for his private mount while on such duty. By the Acts of June 17, 1878 (20 Stat., 150), and February 24, 1881 (21 Stat. 347), forage allowance is given to officers who "are required by law to be mounted and actually keep and own their animals."

Held, that as the law does not indicate what officers are "required to be mounted," it rests with the Secretary of War to designate them; that forage for private horses is not a part of the allowances to which an officer is entitled irrespective of the duty to which he is assigned; that the allowance for forage is not a part of the "full pay and allowances" of a retired officer and that he is not entitled thereto unless it has been decided by the Secretary of War that he is performing duty which requires him to be mounted or is employed in one of the capacities mentioned in Paragraph 1272 A. R.

(88-570, J. A. G., June 29, 1915.)

DECISIONS OF THE COMPTROLLER OF THE TREASURY. [Digests prepared in the office of the Judge Advocate General.]

GRATUITY PAY: On death of soldier, designation of beneficiary.

An enlisted man who had duly designated a friend as beneficiary to whom payment should be made of the six months' gratuity pay provided by the Act of May 11, 1908 (35 Stat. 108), and Par. 1385, A. R., subsequently married, but did not thereafter change the designation of his beneficiary "by filling up and forwarding to The Adjutant General of the Army another blank of the prescribed form," in accordance with Par. 1385, A. R. The soldier, while on the active list, died, leaving a will by which, after making certain specific bequests, he disposed of "all the balance of my estate both personal and real, and all debts or money that is due me from any source" to his wife and another person. Held, that the will did not operate to change the designation of the soldier's beneficiary.

(Comp. Geo. E. Downey, June 7, 1915.)

STATE LAWS: Expenses for inspection of horses.

In carrying out instructions of the Quartermaster General of January 9, 1912, in regard to complying with State

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sanitary requirements governing the admission of live stock, the proper military authorities deemed it necessary in connection with the shipment of horses and mules from Vancouver Barracks, Wash., to points in California to engage the services of a veterinarian at Vancouver to inspect the animals and issue health certificates therefor. The Auditor for the War Department disallowed the payment to the veterinarian under the supposed authority of previous decisions of the Comptroller (21 Comp. Dec., 450, and others there cited), holding in substance that the instrumentalities of the United States employed in its proper functions are not subject to taxation by a State and that the requirement of the State law of the evidence of the inspection of horses "does not make it the carrier's duty to make or procure the inspection of Government horses en route."

Held, that where the Government acquiesces in the requirements of State laws in this regard and makes its own arrangements for inspection, as was done in the instant case, the expense therefor is properly payable from Army appropriations, and that the decisions relied upon by the Auditor were not applicable.

(Comp. Geo. E. Downey, June 12, 1915.)

TRANSPORTATION: Land-grant deductions for civilian employees.

In the settlement of the accounts of the Atchison, Topeka & Santa Fe Railway Company for transportation service, the Auditor for the War Department disallowed $36.58 as land-grant deductions from claim for the transportation of two civilian employees of the Signal Corps from San Diego, Cal., to Washington, D. C. On appeal to the Comptroller, the company contended that

"Civilian employees of this branch of the Army are not a part of the military forces of the United States subject to the orders of the Secretary of War, and can in no way be classed as troops of the United States, under the meaning of the land-grant acts. Such transportation is therefore

not subject to land-grant deduction."

Held, that by the Act of February 2, 1901 (31 Stat., 748), the Signal Corps became a part of the Army; that it has been held for more than thirty years that the civilian employees of the Army are troops within the meaning of the land-grant acts, and that therefore the deduction was properly made by the Auditor.

(Comp. Geo. E. Downey, June 24, 1915.)