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mitted to the Attorney-General, who rendered his opinion thereon July 11, 1904 (25 Op. Att. Gen., 185), holding that advancement on the retired list, such as is authorized by the act of April 23, 1904, does not create an office and is not accomplished by an exercise of the appointing power.
The Attorney-General further decided on December 22, 1904 (25 Op. Att. Gen., 299), that officers so advanced by the President and Senate, with rank from April 23, 1904, the date of the act, are entitled to pay from that date though not actually appointed and confirmed until a later date.
After the rendition of these opinions it was found that several officers who had been nominated by the President for advancement had died before their names had been sent to the Senate for confirmation. The question was then submitted to the Attorney-General whether the names of such officers could properly be submitted to and confirmed by the Şenate, and on January 4, 1905, it was held that such action was lawful (25 Op. Att. Gen., 312).
In that opinion the following language was used:
“In other words, although these six officers have died, their eligibility under the law has long existed, and the new statutory right based thereon accrued and was fixed or vested as soon as the President's discretion was exercised in their favor. Certainly, acceptance of the recess appointment or designation completed the grant, if it is to be regarded as inchoate up to that point. The Senate's concurrence, if given, is to be viewed as the performance of a condition subsequent or an approval not dependent upon the life of a beneficiary, and as ratifying after the fact and after death the executive action previously taken.”
I fully concur with the views of the Attorney-General expressed in these opinions. All the requirements of the law as therein construed baving been complied with, I am of the opinion that the claimant is entitled to the pay claimed, as captain from April 23 to October 16, 1904.
COMPUTING INCREASED PAY OF ENLISTED MEN
OF THE ARMY.
The additional pay received by enlisted men of the Army for certificates
of merit should be included in computing the 20 per cent increase of pay provided for by the acts of April 26, 1898, May 26, 1900, and
March 2, 1901. (Decision by Assistant Comptroller Mitchell, May 17, 1905.)
The Auditor for the War Department bas submitted for approval, disapproval, or modification the following decision:
“ Charles Schottler claims additional pay of $2 per month from March 24, 1900, by reason of having been granted a certificate of merit for distinguished service.
“ The military records show that the claimant was enrolled September 22, 1899; assigned to Company 1, Forty-third United States Volunteer Infantry, transferred to Company D, same regiment, and mustered out at San Francisco, Cal., July 5, 1901. He served with his organization in the Philippine Islands from about December 19, 1899, until June 5, 1901, and arrived at San Francisco, Cal., about June 27, 1901. May 4, 1904, he was awarded a certificate of merit upon a recommendation therefor made July 1, 1900, for distinguished service on March 24, 1900, at Biason, Samar, P. I., under section 1216, Revised Statutes.
“Section 1285 of the Revised Statutes (as amended by act of February 9, 1891, 26 Stat., 737) provides:
"A certificate of merit granted to an enlisted man for distinguished service shall entitle him, from the date of such service, to additional pay at the rate of two dollars per month while he is in the military service, although such service may not be continuous.'
• The claimant's right to additional pay of $2 per month from March 24, 1900, to date of discharge from the service is well settled, and the only question involved in the consideration of the pending claim is as to whether or not the 20 per cent increase authorized by law should be computed upon the minimum pay of his grade plus the additional pay of $2 a month authorized by section 1285, Revised Statutes, supra.
“During the period from March 24, 1900, to the date of his arrival at San Francisco, Cal., he was paid 20 per cent increase on the minimum pay of his grade under the provisions of acts of Congress as follows:
" "That in time of war the pay proper of enlisted men shall be increased twenty per centum over and above the rates of pay as fixed by law.' (Act of April 26, 1898, 30 Stat., 365.)
* That hereafter the pay proper of all officers and enlisted
men serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and in the Territory of Alaska shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law in time of peace.' (Act of May 26, 1900, 31 Stat., 211.)
"That hereafter the pay proper of all officers and enlisted men serving beyond the limits of the States comprising the Union, and the Territories of the United States contiguous thereto, shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such service shall be counted from the date of departure from said States to the date of return thereto.' (Act of March 2, 1901, 31 Stat., 903.)
“The proper determination of the question involved in this case depends upon the meaning of the words “pay proper'in these acts.
"In the Mills case, decided by the Supreme Court March 13, 1905, the court said:
*** The words “pay proper” we see no reason to think are to be construed differently from the word “pay.” The term means compensation, which may properly be described or designated as "pay,” as distinguished from allowances, commutation for rations, or other methods of compensation not specifically described as pay.'
“In an opinion of the Auditor, construing section 1285, Revised Statutes, supra, approved by the Assistant Comptroller of the Treasury October 8, 1907 (11 Comp. Dec., 173), it was held that in computing extra pay under the act of January 12, 1899, the $2 per month a soldier is entitled to receive for a certificate of merit should be included, and in that decision the Auditor said:
•«• Under this section a soldier is entitled to additional pay at the rate of $2 per month. It is not contingent upon future service nor is it an allowance which may or may not be earned, but a direct and certain amount to be added each month to the pay of his rank for services actually rendered.'
"No specific appropriation has been made for the payment of the additional pay for distinguished service, and it is reasonable to presume, from the phraseology of section 1285, supra, that Congress intended to increase the monthly pay of a soldier by adding thereto $2 per month as a reward for meritorious service.
“In view of the foregoing facts and considerations, I am of the opinion and so decide that the 20 per cent increase authorized by the acts of April 26, 1898, May 26, 1900, and March 2, 1901, supra, should be computed on the additional pay authorized by section 1285, supra.”
The decision of the Auditor is approved.
PAY OF A RETIRED OFFICER OF THE ARMY
WHILE DETAILED TO DUTY AT AN EDUCA
TIONAL INSTITUTION. A retired officer of the Army with the rank of colonel, who was detailed,
under the act of November 3, 1893, for duty at an educational insti. tution, was while so detailed "assigned to active duty," within the meaning of the act of March 2, 1905, and therefore, under the provi. sions of said act, he was only entitled while so detailed to the full pay
and allowances of a major on the active list. (Assistant Comptroller Mitchell to the Secretary of War, May
18, 1905.) By your order, I have received a communication dated the 7th ultimo from The Military Secretary in which my decision is requested whether, in view of the act of March 2, 1905 (Pub. No. 127), an officer of the Army, on the retired list, detailed for duty at an educational institution under the act of November 3, 1893 (28 Stat., 7), is entitled while so detailed to receive the full pay of his rank as provided in said act.
The specific case in hand is that of Col. J. H. Calef, who is on duty as professor of military science at the St. Louis University, St. Louis, Mo. Said officer states that the paymaster has informed him that he is only entitled to “the full pay and allowances of a major on the active list” from and after March 2, 1905, under the provisions of the act of that date.
Section 1225 of the Revised Statutes, as amended by the act of September 26, 1888 (25 Stat., 491), provides:
“The President may, upon the application of any established military institute, seminary or academy, college or university, within the United States
detail an officer of the Army or Navy to act as superintendent or professor thereof;" *
The act of November 3, 1893 (28 Stat., 7), provides:
“That section twelve hundred and twenty-five of the Revised Statutes, concerning details of officers of the Army and Navy to educational institutions, be, and the same is herebr, amended so as to permit the President to detail under the provisions of said 'act not to exceed one hundred officers of the Army of the United States;
and officers on the retired list of the Army may upon their own application be detailed to such duty, and when 80 detailed shall receive the full pay of their rank;">
The act of April 23, 1904 (33 Stat., 264), provides:
and the Secretary 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.
The act of March 2, 1905 (Pub. No. 127), provides:
“That retired officers of the Army above the grade of major, heretofore or hereafter assigned to active duty, shall hereafter receive their full retired pay and shall receive no further pay or allowances from the United States: Provided further, That a colonel or lieutenant-colonel so assigned shall receive the full pay and allowances of a major on the active list.”
The acts of September 26, 1888, and November 3, 1893, supra, provide that officers may be “detailed” for duty at educational institutions, while the act of April 23, 1904, supra, provides that retired officers may be assigned” to active duty of certain kinds. The act of March 2, 1905, applies to officers "assigned” to active duty. I think that the term “assigned" includes “detailed," as a detail is only one of several methods of assignment.
The act of March 2, 1905, therefore applies to retired officers on duty at educational institutions, if such duty is to be regarded as “active duty.” Until the passage of the act of November 3, 1893, there was no authority of law for the detail of retired officers to such duty, with the full pay of their rank, details of this kind being limited to officers on the active list.
I can not believe that a duty to which, for many years, only officers on the active list were permitted to be assigned is not active duty or ceases to be such when retired officers are permitted on their own application to undertake it.
I am of opinion that retired officers detailed to colleges under the provisions of the act of November 3, 1893, are “assigned" to active duty within the meaning of the act of March 2, 1905, and are entitled only to the rates of pay authorized