BULLETIN

No. 36.

WAR DEPARTMENT, WASHINGTON, November 10, 1915.

The following digest of opinions of the Judge Advocate General of the Army, for the months of September and October, 1915, and of certain decisions of the Comptroller of the Treasury and courts, together with a collection of notes on military justice prepared under the direction of the Judge Advocate General of the Army, is published for the information of the service in general.

OPINIONS OF THE JUDGE ADVOCATE GENERAL.

ATTORNEYS: Employment of.

A certain military attaché obtained the services of an attorney abroad in preparing a lease for an office room.

Held, that in view of section 189, Revised Statutes, which provides that "no head of a department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice, shall call upon the Department of Justice, the officers of which shall attend to the same," the War Department could not authorize the payment of the attorney's fee.

(5–212, J. A. G., Oct. 16, 1915.)

COURTS-MARTIAL: Soldier sentenced to dishonorable discharge while serving a prior sentence; cumulative sentences.

An enlisted man was convicted by special court-martial and sentenced to confinement at hard labor for six months and forfeiture of two-thirds of his pay for the same period. Shortly after the execution of this sentence was begun, the soldier was convicted by general court-martial and sentenced to dishonorable discharge and three days' confinement at hard labor. The question was submitted whether the execution of the general court-martial sentence should be deferred until the sentence of the special court-martial was fully executed so as to make the sentences cumulative, or whether it was required to be executed forthwith. Doubt arose because of the apparent conflict between paragraph 973, A. R., 1913, and paragraph 10, page 73, of the Manual for Courts-Martial, as well as because of uncertainty as to the requirements of paragraph 152, A. R.

Paragraph 973, A. R., directs that when soldiers awaiting result of trial or undergoing sentence commit offenses for which they are tried, the second sentence will be executed upon the expiration of the first. Paragraph 10, page 73, Manual for Courts-Martial provides that where a soldier, while undergoing sentence of confinement imposed without dishonorable discharge, is tried for a further offense and sentenced to dishonorable discharge and confinement, the period of confinement under his prior sentence will terminate upon the date of his dishonorable discharge, leaving to be executed only the confinement imposed by the second sentence.

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Held, that paragraph 973, A. R., and the provision of the Manual for Courts-Martial should be so construed as to give effect to both if possible and that this can be done only by giving literal effect to the provision of the Court-Martial Manual, which would result in negativing paragraph 973, A. R., in but one class of cases, namely, where the soldier is serving a sentence of confinement not involving dishonorable discharge as in the instant case, leaving the paragraph free to operate in all other cases coming within its terms. Held further, that under paragraph 152, A. R., a soldier is presumed to receive notice of discharge on the day of the arrival of the general court-martial order at his post. (28-420, J. A. G., Oct. 5, 1915.)

DESERTION: When soldier is liable for the amount of reward.

A deserter from the Army was apprehended and instead of being tried by court-martial was discharged "by reason of desertion and physical unfitness for service," under paragraph 126, A. R., as amended. Thereafter he applied for refundment to him of $50 stopped against his final pay to cover the amount paid as a reward for his apprehension.

Held, that the stoppage in question was unauthorized and should be refunded to the claimant, since stoppage against the pay of a soldier to cover the cost of his apprehension as a deserter and return to military control is authorized only (a) upon the actual conviction of the soldier of desertion by court-martial, or (b) upon his admission of the crime of desertion preliminary to his restoration to duty without trial. (127 and 131, A. R.)

(26-464, J. A. G., Oct. 16, 1915.)

ENLISTED MEN: Travel without troops; Pullman car accommodations.

On the question of what constitutes traveling without troops within the meaning of paragraph 1128, A. R., relating to the furnishing of Pullman car accommodations to enlisted men,

Held, that the term "troops" in said regulation contemplates an organization of some description under proper command; that usually in the case of a detachment under the command of an officer the object of travel is the performance of some special duty, although it may be otherwise, as in the case of a recruiting party; that, therefore, when enlisted men perform travel not within an organization of some description under proper command, they are to be regarded as traveling without troops.

(94-240, J. A. G., Sept. 18, 1915.)

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HEAT AND LIGHT: Enlisted man on temporary duty in the field.

In an opinion published in Bulletin No. 5, page 5, War Department, 1915, the Judge Advocate General held that a noncommissioned officer on temporary duty in the field was not entitled to heat and light allowances for his family at his regular station. Subsequently the Comptroller held that an enlisted man entitled to commutation of quarters at his regular station did not lose his right thereto while absent on furlough or temporarily absent on duty in the field, and that if his family continued to occupy his quarters during his absence he was entitled to commutation of heat and light also.

A soldier who had paid for fuel and light under the Judge Advocate General's ruling applied for refundment of the amount so paid in view of the Comptroller's decision.

Held, that there is nothing in the statute on the subject to justify a difference in practice in providing heat and light allowances in kind from that pertaining to commutation of those allowances, and that the practice in regard to furnishing such allowances in kind should be changed to conform to the comptroller's ruling in respect of commutation thereof.

(72-411, J. A. G., Sept. 30, 1915.)

NOTE. Under the changed construction it was held by the comptroller in a decision of October 11, 1915, that the amount in question collected from the soldier for fuel and light furnished his family at his regular station during his temporary absence on duty in the field could properly be refunded to him from the appropriation to the credit of which it was deposited, as a refundment of money erroneously collected.

MEDICAL RESERVE OFFICERS: Computation of time for longevity increase.

An officer of the Medical Reserve Corps was at the time of his appointment thereto a contract surgeon. He accepted his appointment March 6, 1915, and was not assigned to active duty thereunder until March 16, 1915. In the interim he continued to serve as contract surgeon.

Held, that under the act of April 23, 1908 (35 Stat., 68) the pay status of an officer of the Medical Reserve Corps does not commence until he is called into active duty; and that as the officer in the instant case was not assigned to active duty as an officer of the Medical Reserve Corps until March 17, 1915, his service for the purpose of longevity increase began on the later date.

(6-227.4, J. A. G., Sept. 2, 1915.)