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Officers of vol. unteers and militia.

April 22, 1898,

Ordnance storekeeper, in office of Chief of Ordnance, the pay of major. Acts of May 1, 1882 (22 Stat. L., 52); June 6, 1896 (29 ibid., 256).

Military storekeeper, the pay of captain, mounted.Act
of July 1, 1898 (30 Stat. L., 571).

Contract and dental surgeon, not to exceed eighteen
hundred dollars a year.”
808. Officers

of the Volunteer Army, and of the militia of the States, when in the service of the United s. 12, v. 30, p. 361. States, shall be in all respects on the same footing as to

pay, allowances, and pensions as that of officers
of corresponding grades in the Regular Army. Sec. 12,

act of April 22, 1898 (30 Stat. L., 361).
Pay of princi- 809. The principal assistant in the Ordnance Bureau
Ordnance Bu- shall receive compensation, including pay and emoluments,
Feb. 27: 1877, v. not exceeding that of a major of ordnance.'

810. Officers of the Army and of volunteers assigned to
duty which requires them to be mounted shall, during the
time they are employed on such duty, receive the pay,
emoluments, and allowances of cavalry officers of the same
grade, respectively."

pal assistant in

reau.

19, p. 243.

Sec. 1279, R.S.
Mounted pay.

Feb. 27, 1877, c. 69, v. 19, p. 243.

Sec. 1970, R.S.

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incompatible, and an officer is not entitled to the additional pay of both positions at the same time. 5 Compt. Dec., 971.

Lieutenants serving as regimental (squadron and battalion) commissaries are not entitled to additional pay as acting commissaries of subsistence. 5 Compt. Dec., 761. Captains, other than regimental commissaries, are entitled to additional pay. Dig. Opin. J. A. G., par. 1910.

This office has ceased to exist as a grade of rank on the active list of the Army. 2 Section 2, act of May 12, 1898 (30 Stat. L., 406); section 19, act of February 2, 1901 (31 ibid., 753). The three contract dental surgeons first appointed are entitled to $60 per month additional pay for the performance of the duties prescribed in that section.

3 And the Ordnance storekeeper on duty as disbursing officer and assistant to the Chief of ordnance. See paragraph 1159, note, and paragraph 1160, post.

*A mounted officer is one who, by statute, regulations, or army organization, is "required” to be mounted at his own expense. Harold v. U. S., 23 Ct. Cls., 295. An officer of a battery designated by the President as a “light battery” is entitled to mounted pay from the date of such designation. Ibid. Officers are not assigned to duty “requiring them to be mounted” when no order or authorization requiring them to mount themselves has been issued by the War Department, and they have merely been riding Government horses, by permission, and have been furnished with Government equipments. Forbes v. U.S., 17 Ct. Cls., 32. Nor are officers so assigned within the meaning of the act of February 12, 1877, where they are simply mounted on Government horses captured from Indians, and do not furnish, at their own expense horses, saddles, bridles, sabers, pistols, spurs, and other cavalry equipments. Ibid. ; Carter v. U. S., 22 ibid., 73; see also Eskridge v. U. S., 30 ibid., 290.

The following officers, in addition to those whose pay is fixed by law, are entitled to pay as mounted officers: Officers of the staff corps below the rank of major, officers serving with troops of cavalry, officers of a light or siege battery duly organized and equipped, authorized aids duly appointed, officers serving as military attachés to the embassies and legations of the United States at foreign capitals, officers serving with companies of mounted infantry, and officers on duty which requires them to be mounted and which is so certified to by the Secretary of War or the department or corps commander on their first pay vouchers while on such duty, the certifi

811. Brevets conferred upon commissioned officers shall not entitle them to any increase of pay.

Brevets,

Mar. 3, 1863, c. 82. v. 12, p. 758; Mar. 3, 1865, c.79. S. 9, 1.13, p. 488.

Sec. 1264,R.S.

ADVANCES OF PAY.

Advances

of

Sec. 3648, R.S.

812. The President may

direct such advances money. as he may deem necessary and proper to persons in the naval and military service employed on distant stations where the discharge of the pay and emoluments to which they may be entitled can not be regularly effected.'

813. Troops about to embark for service in the Philip- Advance to pine Islands may, in the discretion of the Secretary of ing War, be paid one month's wages in advance prior to embarkation. Act of July 7, 1898 (30 Stut. L., 720).

troops embark

for Philippine Islands.

July 7, 1898, v. 30, p. 720.

cate being cited by the officers on their subsequent vouchers. Officers ceasing to draw mounted pay will tile with the last pay voucher a copy of the order relieving them from duty which required them to be mounted. Acting judge-advocates of military departments, duly detailed, are entitled while so serving to the rank, pay, and allowances of captains of cavalry. Par. 1450, A. R., 1901.

The act of July 17, 1862 (12 Stat. L., 594), allowed to officers “assigned to duty which required them to be mounted" certain increased pay. So section 1261, Revised Statutes, entitles captains and lieutenants, when "mounted,” to receive respectively $200 and $100 per annum of pay more than when “not mounted.” Held, that to entitle officers to the increase of pay under these statutes it was not, and is not, essential that the duties required of them should make it absolutely necessary that they should be mounted, but that it was, and is, sufficient if these duties were, or are, such as are usually and appropriately performed by mounted officers, and such as can not be performed effectively or without material embarrassment and inconvenience to the service except by such officers (note in this connection the construction in Griswold 2. Hepburn, 2 Duvall, 20, of the provision in Art. I, sec. 8 $ 18 of the Constitution, that ('ongress shall have the power to make all laws which shall be necessary,etc., for the execution of its special powersas meaning not indispensable but appropriate and conducive to the purpose); and further that the certificate of the proper commander of an officer (as of the Chief Signal Officer in a case of an officer engaged in signal duty, or of the Superintendent at West Point in a case of an acting quartermaster stationed at that post), that the duties of the officer properly required (in the sense above indicated) that he should be mounted, would (the Secretary of War approving) be sufficient to entitle him to receive the additional pay. Heid, that a captain or lieutenant detailed as a professor in a college, under section 1225, was not entitled to mounted pay. Dig. Opin. J. A. G., par. 1909.

Where the duty to which an infantry officer is assigned, in the opinion of the department commander, requires him to be mounted, and such officer furnishes horses and forage, he is entitled to be paid as a mounted officer until he is notified of the changed opinion of the department commander. Eskridge r'. U. S., 30 Ct. Cls., 290.

An officer of a battery of artillery, designated by the President as a mounted battery, is entitled to mounted pay from the date of such designation, though the battery was not equipped until a later date. Harrold ?: U. S., 23 Ct. Cls., 295.

A captain detailed as regimental adjutant or regimental quartermaster under section 2 of the act of March 2, 1899 (30 Stat. L., 977), is entitled to the pay of a captain mounted. 5 Compt. Dec., 761.

1 An advance of public money made by a paymaster of the Army to an officer ordered to a distant station, when made by direction of the President, as provided by section 3648 of the Revised Statutes, to provide for the pay of such officer for a future period, is not a payment for services for the correctness of which the paymaster is held responsible, but is an advance of public money to the officer in question, for which he, and not the paymaster, is accountable to the United States. 4 Compt. Dec., 250.

? The act of May 2, 1898 (30 Stat. L., 420) had contained the same provision.

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Pay of grade

to cised in time of war.

Sec. 7, Apr. 16,

814. In time of war every officer serving with troops command exer operating against an enemy who shall exercise, under

assignment in orders issued by competent authority, a 1898, v. 30, p. 364. command above that pertaining to his grade shall be

entitled to receive the pay and allowances of the grade
appropriate to the command so exercised: Provided, That
a rate of pay exceeding that of a brigadier-general shall
not be paid in any case by reason of such assignment."
Sec. 7, act of April 26, 1898 (30 Stat. L., 364).

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Under section 7 of the act of Congress approved April 26, 1898, an officer is not entitled to the pay and allowances of the grade appropriate to a command exercised by him above that pertaining to his grade except when serving with troops operating against an enemy” and exercising the command of the higher grade under assignment in orders issued by competent authority.” It has been held by the Secretary of War that troops serving within the limits of the United States at a time when there is no foreign army within said limits are not operating against an enemy, notwithstanding the existence of war conditions. For the purpose of restricting assignments to command under this section to competent authority,” it has also been decided that such authority can be exercised only by the Secretary of War, or by the commanding general of an army “operating against an enemy.” Circular 18, A. G. O., 1898. See also G. 0. 86, A. G. O., 1898.

The command prescribed by law for an officer of the Army must be held to be the appropriate command of that grade, and such command is not subject to change by Executive order, or regulation, except as provided by law. 5 Compt. Dec., 354.

An officer of the Army who, under assignment in orders issued by his superior officer, exercises a command above that pertaining to his grade exercises such command under competent authority within the meaning of section 7 of the act of April 26, 1898. Ibid., 354.

Under section 7 of the act of April 26, 1898, an officer of the Army serving in time of war with troops operating against an enemy, who is required by the Army Regulations, upon a specified contingency, to exercise a command above that pertaining to his grade, must be regarded as exercising such “command under assignment in orders issued by competent authority,” and entitled to the pay of the higher grade. Ibid., 639.

The office of an officer of the Army and his rank are not necessarily, identical.
Wood v. U. S., 107 U. S., 414; 5 Compt. Dec., 280.

A captain in the Army while performing duty as chief quartermaster does not exercise a command within the meaning of section 7 of the act of April 26, 1898, and is not entitled to increased pay for exercising a command above that pertaining to his grade. 5 Compt. Dec., 137. A judge-advocate who is assigned by a corps commander to act as judge-advocate on his staff does not thereby acquire any higher rank and is not entitled to any additional pay. Ibid., 168.

A major of infantry who, on the assignment of the lieutentant-colonel to the command of the regiment, was assigned to the command of a battalion was not assigned to a command above that pertaining to his grade, and is not entitled to the increase of pay provided by the act of April 26, 1898, for exercising a command above that pertaining to his grade. Ibid., 862.

The fact that a major of the Army was for a time assigned to the command of a post garrisoned by two batteries of artillery does not make such a command the appropriate command of a major, and a captain assigned to such a command is not entitled to the pay of a major. Ibid., 891.

There is no law authorizing the allowance of additional pay to an enlisted man for performing the duties of a commissioned officer, and a claim for such pay can not be allowed. 4 Compt. Dec., 120.

A second lieutenant of the Army who exercised the command of a first lieutenant did not “exercise a command above that pertaining to his grade," within the meaning of the act of April 26, 1898, and he is not entitled to the pay of the higher grade. 6 Compt. Dec., 9905.

Where an officer of the Army exercised a higher command and, under section 7

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815. For additional pay for increased rank when in com- Restriction May

26, 1900, v. 31, p. mand by competent authority, * dollars: Provided, 211. That no part of this sum shall be used for pay

of officers assigned to higher command than their rank in the Army, unless such service shall be continuous for a period of not less than three months. Act of May 26, 1900 (31 Stat. L., 211).

INCREASED PAY FOR FOREIGN SERVICE.

816. Hereafter the pay proper of all officers and enlisted folherea se for men serving beyond the limits of the States comprising 31 Marse. 1901, v the Union and 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. L., 903). of the act of April 26, 1898, is entitled to the pay and allowances of the grade appropriate to the command so exercised, and, under section 1262, Revised Statutes, is also entitled to increased pay for length of service, such increased pay to be computed on the pay of the grade appropriate to such higher command. Ibid., 710.

This enactment replaces the requirement in pari materia of the act of May 26, 1900. (31 Stat. L., 211.) The act of March 3, 1901 also provides that “the officers and enlisted men who have served in China at any time since the twenty-sixth day of May, nineteen hundred, shall be allowed and paid for such service the same increase of pay proper as is herein provided for." Under this statute an officer is entitled to 10 per cent increase of his pay proper for the highest grade he holds, or of the highest grade to which his pay and allowances are lawfully assimilated, but such increase of pay does not operate to increase his pay for length of service. See 6 Compt. Dec., 944.

The act does not make any change in the regular pay or allowance of the Army, but makes provision for a special or extra allowance to officers and enlisted men of the Army while they are serving in the places named in the act. It obviously applies only to service rendered on and after the date of the act.

The provisions of the various laws, to wit, section 11, act of June 20, 1864 (13 Stat. L., 145), section 1265, Revised Statutes, act of May 8, 1874 (18 Stat. L., 43), and act of July 29, 1876 (19 Stat. L., 102), authorizing leaves of absence to be allowed to officers for specified periods "without deduction of pay or allowances have not been construed to entitle an officer while on leave to allowances the payment of which was conditioned upon the performance of some particular service, such as payment of $100 a year as acting assistant commissary under section 1261, Revised Statutes, or pay for exercising a higher command under section 7, act of April 26, 1898 (30 Stat. L., 365).

The 10 per cent increase on pay proper being allowed by the act only to officers serving in the places named therein, I am of the opinion that an officer on duty in one of the places named in the act, who is relieved from duty and given a sick leave or an ordinary leave, is not entitled to the 10 per cent increase in computing his pay after the date on which he leaves the place where the increased pay for service therein is authorized by law. 6 Comp. Dec., 948.

The provisions of the act in respect to the 10 per cent increase therein provided were special and peculiar, and while the 10 per cent increase would undoubtedly be included in the term “pay” as to officers serving in places named in the act, it would not be included in either of the terms "pay" or "allowances” as to officers not serving in such places.

In all the laws relating to contract surgeons they are clearly distinguished from officers of the Army. See sections 1 and 2, act of May 12, 1898 (30 Stat. L., 406); section 7, act of March 2, 1899, to increase the efficiency of the Army (30 Stat. L., 979), and the acts providing for mileage to officers traveling without troops and to con

Allowances. 817. No allowances shall be made to officers in addition
July 15, 1870, c.
294, s. 24, v. 16, p. to their pay except as hereinafter provided."
Sec. 1269, R.S.

LONGEVITY PAY.

320.

Service pay. 818. There shall be allowed and paid to each commis-
July 15, 1870, c.
294, s. 24, v. 10, p. sioned officer below the rank of brigadier-general, includ-
Sec. 1982, R.s. ing chaplains and others having assimilated rank or pay,

ten per centum of their current yearly pay for each term
of five years of service.

819. The total amount for such increase for length of yearly pay.

service shall in no case exceed forty per centum on the July 15, 1870, c. 294

, s. 24, v. 16, p. yearly pay of the grade as provided by law. Sec. 1263, R.S.

820. In no case shall the pay of a colonel exceed four lieutenant-col- thousand five hundred dollars a year, or the pay

of a lieuJuly 15, 1870, c. tenant-colonel exceed four thousand dollars a year.

Not to exceed 40 per cent of

Maximum of colonel's and

onel's pay.

294, s. 24, v. 16, P.
320. Sec.1267, R.S.

Service for longevity pay,

821. On and after the passage of this act, all officers of how.computed the Army of the United States who have served as officers 1878, v. 20, p. 150. in the volunteer forces during the war of the rebellion, or

as enlisted men in the armies of the United States, regular or volunteer, shall be, and are hereby, credited with the full time they may have served as such officers and as such enlisted men in computing their service for longevity pay and retirement. Sec. 7, act of June 18, 1878 (20 Stat. L., 150).

tract surgeons, acts of January 5, 1899, and March 3, 1899 (30 Stat. L., 775, 1068), and act of May 26, 1900 (31 Stat. L., 210), and section 1312, Revised Statutes.

It has been uniformly held that a contract surgeon, also called acting assistant surgeon, is neither an officer nor an enlisted man and is not a member of the Army, but has the status of a civilian employee. See 26 Ct. Cls., 302; Dig. 2d Compt. Dec., vol. 3, sections 929, 932; 4 Compt. Dec., 631, 632; 5 Compt. Dec., 86, 275; Compt. Dec., 356, 376, 403.

As a contract surgeon is neither an officer nor an enlisted man he is not entitled to increased pay under the act of May 26, 1900, supra. Dec. Compt. Treas., Oct. 19, 1900, Cir. 42 A. G. O., 1900.

'Pay is the fixed and direct amount given by law; allowances or emoluments are indirect or contingent remuneration; both are compensation. Sherburne v. U. S., 16 Ct. Cls., 491. See also note 2 to paragraph 807, ante.

? Longevity pay is founded upon the equivalent of increased judgment and capacity acquired by the experience of continued service. Brown v. U.S., 18 Ct. Cls., 545. Acts authorizing longevity pay are remedial statutes, and officers are entitled to a liberal interpretation of them, the language used being given as broad a meaning as Congress may be presumed to have intended. Hendee 1. U. S., 22 Ct. Cls., 134; 19 ibid., 153.

3 An officer once in actual service, under color of office, is entitled to have the time credited to him in the computation of longevity pay. Gould u. U. S., 19 Ct. Cls., 593. The time of actual service is to be credited to an officer in the computation of his longevity pay, without regard to a defect in his title to the office. Palen v. U.S., 19 ibid., 389. Service as chaplain prior to the act of March 2, 1867 (14 Stat. L., 423), can be reckoned in computing longevity pay, chaplains being in the military service prior to that date. U. S. 1. LaTourette, 151 U.S., 572. Service as a contract surgeon can not be reckoned in such computation. Byrnes r. L'. S., 26 Ct. Cls., 302; Hendee r. C. S., 124 U. S., 309. Before the passing of the act of July 28, 1866, as well as afterwards, the corps of cadets of the Military Academy was a part of the

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