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Par.

RETIREMENT OF OFFICERS.1

1297. Forty years' service; thirty years'
service.

1298. Forty-five years' service, age 62.
1299. Retirement at 64 years of age.
1300. The same, the unlimited retired
list.

Par.

1301. The same, the limited retired list.
1302. The same, transfers to unlimited
list.

1303. Service for retirement.
1304. Heads of staff departments.
1305. Retirement for disability.

upon officer's

after 40 years'

Aug. 3, 1861, c.

1297. When an officer has served forty consecutive years Retirement as a commissioned officer, he shall, if he makes application own application therefor to the President, be retired from active service and service. placed upon the retired list. When an officer has been 42, s. 15, v. 12, p. thirty years in the service, he may, upon his own application, in the discretion of the President, be so retired, and placed on the retired list.

a

1298. When any officer has served forty-five years as commissioned officer, or is sixty-two years old, he may be retired from active service at the discretion of the President. 200, s. 12, v. 12, p. 596.

289; July 15, 1870,

C.

c. 294, s. 4, 5, v. Sec. 1243, R.S.

16, p. 317.

Retirement at discretion of

President after
or at the age of 62.
July 17, 1862, c.
Sec. 1244, R.S.

45 years' service,

The same; compulsory re

64.

June 30, 1882, v.

22, p. 117.

1299. On and after the passage of this act when an officer has served forty years either as an officer or soldier tirement at age in the regular or volunteer service, or both, he shall, if he make application therefor to the President, be retired from active service and placed on the retired list, and, when an officer is sixty-four years of age, he shall be retired from active service and placed on the retired list: Provided, further, That the General of the Army, when retired, shall be retired without reduction in his current pay and allowances; and no act now in force shall be so construed as to limit or restrict the retirement of officers as herein provided for. Act of June 30, 1882 (22 Stat. L., 117).

1300. Nothing contained in the act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and eighty three, approved June thirtieth, eighteen hundred and eighty-two, shall be so construed as to prevent, limit, or restrict retirements from active service in the Army, as authorized by law in force at the date of the approval of said act, retirements under the provisions of said act of June thirtieth, eighteen hundred and eighty-two, being in addition to those theretofore authorized by law. Act of March 3, 1883 (22 Stat. L., 457).

Unlimited re

tired list.

Mar. 3. 1883, v.

22, p. 457.

1For statutes establishing the limited retired list see paragraph 1301, post. statutes creating the unlimited retired list see paragraphs 1299 and 1300, post. 2 These statutes created the unlimited retired list.

For

Retired list.

Aug. 3, 1861. s.

July 15, 1870, s. 5,

1301. The whole number of officers of the Army on the 16, v. 12, p. 289; retired list shall not at any time exceed three hundred and v. 16. p. 317: June fifty, and any less number to be allowed thereon may be p. 150; Feb. 16. fixed by the President in his discretion. Act of February Sec. 1258, R.S. 16, 1891 (26 Stat. L., 763).

18. 1878, s. 7. v. 20,

1891, v. 26, p. 763.

Transfer of officers from limited

February

16,

1302. When officers who have been placed on the limto unlimited list. ited retired list as established by section seven, chapter 1891, v. 26, p. 763. two hundred and sixty-three, page one hundred and fifty, volume twenty, United States Statutes at Large, shall have attained the age of sixty-four years they shall be transferred from said limited retired list to the unlimited list of officers retired by operation of law because of havLimited re-ing attained said age of sixty-four years. And the limited retired list shall hereafter consist of three hundred and fifty instead of four hundred, as now fixed by law: Provided, That officers who have been placed on the retired list by special authority of Congress shall not form part Special retire- of the limited retired list established by this act. Act of February 16, 1891 (26 Stat. L., 763).

tired list de

creased. Proviso.

ments.

Service counted in retirement, etc.

June 18, 1878, s. 7, v. 20, p. 150.

Head of a staff

department.

26, v. 31, p. 755.

1303. On and after the passage of this act, all officers of the Army of the United States who have served as officers 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).

1304. Any officer now holding office in any corps or deFeb. 2, 1901, s. partment 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 February 2, 1901 (31 Stat. L., 755).

Retirement for disability.

1305. When any officer has become incapable of perAug. 3, 1861, e. forming the duties of his office, he shall be either retired 42, s. 16, v. 12. p. from active service, or wholly retired from the service, Sec. 1245, R.S. by the President, as hereinafter provided.

289.

The limited retired list was established by section 16, of the act of August 3, 1861, 12 Stat. L., 289, which provided that the number of officers retired in accordance with the authority conferred by the act should not, at any time, exceed 7 per cent of the whole number of offices of the Army as fixed by law. By section 5, of the act of July 15, 1870, 16 Stat. L., 317, sec. 1258, Rev. Stat., the number of officers to be borne upon the retired list was to be determined by the President, in his discretion, but was not to exceed 300. By section 7, of the act of July 17, 1878, 20 Stat. L., 150, the number of retired officers was increased to 400. By the act of February 16, 1891, 26 Stat. L., 763, the number was reduced and fixed at 350, the number now authorized by law. For statutes in relation to the retirement of officers found physically disqualified for promotion by boards of examination see paragraphs 1274 and 1275, ante.

Par.

RETIRING BOARDS-RETIRED OFFICERS.

1306. Composition of board.

1307. Oath of members.

1308. Powers and duties. 1309. Findings.

1310. Revision by President.

1311. Disability incident to service.
1312. Same not incident to service.
1313. Officer entitled to hearing.
1314, 1315. Retirement on actual rank.
1316. Pay of retired officers.

Par.

1317. Status of retired officers.

1318. Vacancies caused by retirement. 1319. Rights and liabilities.

1320. Assignment to Soldiers' Home. 1321. Eligibility to office.

1322. Duty in time of war.

1323. Adjutant-General to militia of District of Columbia.

1324. Holding office, restriction.

1325. Clerks to retired officers prohibited.

retiring board.

42, s. 17, v. 12, p.

Sec. 1246, R.S.

1306. The Secretary of War, under the direction of the Composition of President, shall, from time to time, assemble an Army retir-Aug. 3, 1861, c. ing board, consisting of not more than nine nor less than 289. five officers, two-fifths of whom shall be selected from the Medical Corps. The board, excepting the officer selected from the Medical Corps, shall be composed, as far as may be, of seniors in rank to the officer whose disability is inquired of.

bers.

1307. The members of said board shall be sworn in every, Oath of memcase to discharge their duties honestly and impartially.

Aug. 3, 1861, c. 42, s. 17, v. 12, p.

Sec. 1247, R.S.

duties.

42, s. 17, v. 12, p.

1308. A retiring board may inquire into and determine 290. the facts touching the nature and occasion of the disability Powers and of any officer who appears to be incapable of performing Aug. 3, 1861, c, the duties of his office, and shall have such powers of a 290. court-martial and of a court of inquiry as may be necessary for that purpose.1

Sec. 1248, R.S.

Findings. 42, s. 17, v. 12, p. Sec. 1249, R.S.

Aug. 3, 1861, c

290.

1309. When the board finds an officer incapacitated for active service, it shall also find and report the cause which, in its judgment, has produced his incapacity, and whether such cause is an incident of service.2 1310. The proceedings and decision of the board shall be, Revision by transmitted to the Secretary of War, and shall be laid by

the President.

1 This provision does not authorize a retiring board to entertain a charge of a military offense, as such, or to try an officer. Dig. Opin. J. A. G., par. 2192. The investigation of a retiring board is not affected by any limitation as to time, as is that of a court-martial. Such a board may therefore inquire into the matter of a disability, however long since it may have originated. Ibid., par. 2193.

* Held that the law (secs. 1248 and 1249, Rev. Stats.) contemplated an existing and not a purely prospective and contingent incapacity; and that an inquiry into an officer's general efficiency could be pertinent only in so far as it could be regarded as going to show that his inefficiency, if found, was the result of an impairment of health. Ibid., par. 2204.

Held that the cause of incapacity intended in this section was a physical cause; that moral obliquity was not had in view; and that the matter of the financial integrity of the officer was beyond the jurisdiction or the board. Ibid., par. 2203. The incapacity may result from habitual drunkenness. Ibid., par. 2196.

Aug. 2, 1861, c. him before the President for his approval or disapproval and orders in the case.1

42, s. 17, v. 12, p.

290.

Sec. 1250, R.S.

dent to service.

290.

C.

p.

Sec. 1251, R.S.

Disability not incident to service.

Disability inci- 1311. When a retiring board finds that an officer is inca42, s. 17, v. 12, 6: pacitated for active service, and that his incapacity is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers. 1312. When the board finds that an officer is incapacitated for active service, and that his incapacity is not the result 42, s. 17, v. 12, p. of any incident of service, and its decision is approved by Sec. 1252, R.S. the President,' the officer shall be retired from active service, or wholly retired from the service, as the President may determine. The names of officers wholly retired from the service shall be omitted from the Army Register.*

Aug. 3, 1861, c.

290.

Officers enti

tled to a hearing.

42, s. 17, v. 12, p.

290.
Sec. 1253, R.S.

1313. Except in cases where an officer may be retired by Aug. 3, 1861, C. the President upon his own application, or by reason of his having served forty-five years, or of his being sixtytwo years old, no officer shall be retired from active service, nor shall an officer, in any case, be wholly retired from the service, without a full and fair hearing before an Army retiring board, if, upon due summons, he demands it.3

'The finding of a retiring board under sec. 1251 or sec. 1252, Rev. Stats., is in the nature of a recommendation, and till it is "approved by the President" no retirement can be ordered thereupon. Ibid., par. 2194.

The finding of a retiring board, approved by the President, is conclusive as to the facts. The board finds the facts and the President approves or disapproves the finding, but the law does not empower him to modify the finding or to substitute a different one. There is here a judicial power vested in the two, and not in the President acting singly, and when the power has once been fully exercised it is exhausted as to the case. Dig. Opin. J. A. G., par. 2206; U. S. v. Burchard, 125 U. S., 179; U. S. v. Miller, 19 Ct. Cls., 338.

When the President has once acted upon the findings of a retiring board his power over the case is exhausted and his subsequent orders in respect to such officer are void for want of authority. XIX Opin. Att. Gen., 202.

To be "wholly retired," in accordance with the terms of this section, is to be put out of the Army and out of office. An officer wholly retired becomes a civilian, and can be readmitted to the service only by a new appointment. Dig. Opin. J. A. G., 666, par. 9; Miller v. U. S., 19 Ct. Cls., 338.

The provision of this section that an officer shall not be "wholly retired from the service without a full and fair hearing before an Army retiring board if, upon due summons, he demands it," may be said to entitle him to appear before the board (with counsel, if desired), and to introduce testimony of his own, to cross-examine the witnesses examined by the board, including the medical members of the board who may have taken part in the medical examination, and have stated, or reported to the board, the result of the same. If the officer does not elect to appear before the board when summoned, he waives the right to a hearing, and can not properly take exception to a conclusion arrived at in his absence. Dig. Opin. J. A. G., par. 2197. When the President approves and acts upon the report of a retiring board he thereby determines that the officer has had a full and fair hearing. Miller v. U. S., 19 Ct. Cls. 338. But see XVI Att. Gen. Opin., 20.

An officer, on being wholly retired, becomes a civilian, and can be readmitted to the service only by a new appointment. But he can not be appointed at once to the retired list. A civilian can not be appointed as a retired officer. He must first be appointed an officer on the active list, of a certain rank. None but a commissioned officer on the active list of the Army can be placed on the retired list. Dig. Opin. J. A. Gen., 666, par. 11; XIX Opin. Att. Gen., 506.

To be retired

on actual rank.

1314. Officers hereafter retired from active service shall be retired upon the actual rank held by them at the date, of retirement.

June 10, 1872,

v. 17, p. 378; Mar. 3, 1875, v. 18, p. 512. Sec. 1254, R.S.

on actual rank.

1875, v. 18, p. 512;

1868. c. 38, s. 2, v.

15, p. 58.

1315. That all officers of the Army who have been here- Officers retired tofore retired by reason of disability arising from wounds, Sec. 2. Mar. 3, 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 retirement.' Sec. 2, act of March 3, 1875 (18 Stat. L., 512).

PAY OF RETIRED OFFICERS.

1316. Officers retired from active service shall receive seventy-five per centum of the pay of the rank upon which

they were retired.2

MISCELLANEOUS PROVISIONS.

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1317. Officers retired from active service shall be with- Status of drawn from command and from the line of promotion.

289; July 17, 1862, c. 200, s. 12, v. 12, p. 596.

re

tired officers. Aug.3, 1861, c. 42, s. 16, v. 12, p. Sec. 1255, R. S.

caused by re

1318. When any officer in the line of promotion is retired Vacancies from active service, the next officer in rank shall be tirement. pro- Aug. 3, 1861, c. moted to his place, according to the established rules of 12, s. 16, v. 12, p the service; and the same rule of promotion shall be applied, successively, to the vacancies consequent upon such retirement.

289.
Sec. 1257, R.S.

'The act of March 3, 1875, should be construed to have a prospective effect only. XIX Opin. Att. Gen., 610.

2 The pay of retired officers is a matter within the control of Congress, and so is their rank. Wood v. U. S., 15 Ct. Cls., 151, and 107 U. S., 414. Officers retired from active service are retired " upon the actual rank held by them at the date of retirement." Remey v. U. S., 33 Ct. Cls., 218.

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