Officers of the National Guard who are members of the Officers' Reserve Corps, assigned to active duty under section 81, National Defense Act, as amended, are entitled, as members of the Officers' Reserve Corps to the benefits of the act of April 26, 1928 (45 Stat. 461), providing for medical and hospital treatment and continuation of pay and allowances when disease or injury is suffered in line of duty. 325, Mar. 4, 1930.

DATE EFFECTIVE

Secs.

42. IN GENERAL.

43. DELAY FOR CONVENIENCE OF GOVERNMENT.

44. DELAY FOR OWN CONVENIENCE.

45. ORDER INTENDED FOR ANOTHER PERSON.

46. RETROACTIVE ORDERS.

IN GENERAL

42. A Reserve Corps officer is on a duty status and entitled to pay from the date he starts to obey the order assigning him to active duty. 210.4, Oct. 18, 1918.

When the President, by general order, fixes a named day as the effective date in ordering certain reserve officers to active duty, no change in such date can be effected by a subordinate authority, e. g., by departmental order. The date of commencement of active duty of such reserve officers is the day so fixed by the President. 210.455, Feb. 27, 1925.

DELAY FOR CONVENIENCE OF GOVERNMENT

43. An enlisted man was commissioned in the Officers' Reserve Corps after attending an officers' training course at Camp Meade. He was discharged from his enlistment February 28, 1918, and accepted his commission on March 1, 1918. Though under orders to proceed to Augusta Arsenal, Ga., and report there for assignment to duty, he was held at Camp Meade from March 1 to 4 by the military authorities for the performance of certain duties incident to the change of status of the large number of enlisted men commissioned at the time he received his commission. Held, That since he was held at Camp Meade for the convenience of the Government, and since he proceeded to his new station as soon as he was permitted to do so, he is entitled to pay as a commissioned officer commencing March 1, 1918. 241.4, Apr. 22, 1918.

An enlisted man accepted appointment as a reserve officer on October 3, 1917, and was discharged from his enlistment October 15, 1917, in anticipation of active-duty orders issued October 16, 1917. His orders of assignment to active service directing him to report for duty at another station were revoked on the request of the commanding officer of his last station who desired his services as an assistant. Authority was finally granted to the said commanding officer to employ him as a civilian accountant, and he was paid as such from October 16, 1917, to December 21, 1917, when he started to comply with an order of December 6, 1917, ordering him to active duty. Held, That his status from October 16, 1917, until December 21, 1917, inclusive, was that of a reserve officer in an inactive status. 210.85, May 27, 1930.

DELAY FOR OWN CONVENIENCE

44. An officer theretofore duly commissioned in the Officers' Reserve Corps received, on December 20, 1917, a telegram from the War Department as follows: "You are assigned to active duty to take effect December 28, 1917, and will proceed to Camp Lee, Petersburg, Va., in time to arrive there not later than January 5, 1918." He resigned his position of civil employment on December 27, 1917, under the belief that his pay as an officer of the Officers' Reserve Corps would commence December 28. He left his home on January 3 and reported as required on January 5, 1918. Held, That he is entitled to pay from the date on which he actually complied with the order to report for duty, which was the day on which he left his home on a continuous journey to Camp Lee. Section 38, National Defense Act (39 Stat. 166, 190), provides that Reserve officers are entitled to pay and allowances when ordered to active service "from the date upon which they shall be required by the terms of their orders to obey the same." In the instant case the officer was required to obey the order by starting from his home in time to arrive at Camp Lee not later than January 5, 1918. It was his privilege to leave home immediately on December 28 and report at Camp Lee earlier than January 5, in which event he would have been entitled to pay commencing with the date of his departure on a continuous trip for Camp Lee. His delay in complying with the order until the last day of grace was for his own convenience and consequently his pay did not commence until he started to comply with said order. 241, Mar. 28, 1918.

Section 37a, National Defense Act, as amended by act of June 4, 1920, which supersedes section 38, National Defense Act of 1916, provides for pay and allowances of reserve officers " when on active duty."

On June 6, 1918, an appointee received notice that he had been commissioned a captain in the Reserve Corps and was ordered to report to the Director of Aircraft Production, Finance Department. He wired his acceptance on June 7, and entered a hospital for a necessary operation June 11, the delay being encouraged by The Adjutant General. On August 18, he started for Washington to report for duty. From the time of accepting his commission he had been in communication with his commanding officer. He is not entitled to pay for the time prior to August 18. A reserve officer ordered to active duty is not entitled to pay until he enters upon the performance of his duties by beginning travel to his place of duty. (15 Comp. Dec. 836.) 241.19, Nov. 23, 1918.

ORDER INTENDED FOR ANOTHER PERSON

45. William H. Callinan, of 2051 Clinton Avenue, Alameda, Calif., duly accepted a commission as first lieutenant in the Engineer Officers' Reserve Corps on August 27, 1917, and on the same date he received a telegram from The Adjutant General of the Army addressed to Second Lieut. Jos. B. Callahan, 2051 Clinton Avenue, Alameda, Calif., reading: "You are placed on active duty effective September 2, and will proceed to Fort Leavenworth, Kans.," etc. Believing that this telegram was intended for him, Lieutenant Callinan proceeded to Fort Leavenworth, Kans., and reported for duty, and remained on active duty there for several weeks, when the mistake was discovered by the War Department. Held, That The Adjutant General's order of August 27, which Lieutenant Callinan received, although not intended for him, nevertheless became an order to him, since it was one which he, as a person subject to military orders, was reasonably justified in obeying. An officer of the Army must not stop upon the

receipt of an order to quibble about mistakes in his name. If the order purports to be for him by reason of the place and circumstances of its receipt and is one which he is qualified to obey, he should obey it. Accordingly, Lieutenant Callinan is entitled to mileage and pay incident to compliance with such order. 154, Feb. 12, 1918.

* *

*

Dr. C. A. Robertson, of Ridgetop, Tenn., having read in the Journal of the American Medical Association that Lieut. C. A. Robertson, of the Medical Reserve Corps, had been ordered to report to Fort Benjamin Harrison for instruction, wrote the Surgeon General asking if the publication was authorized. The Surgeon General transmitted this letter to The Adjutant General with a request that "so much of paragraph 43, Special Orders 223, as concerns Lieut. C. A. Robertson, M. R. C., directing him to Fort Benjamin Harrison Training Camp be repeated to that officer." The special orders referred to had application to a man of the same name living at Hopkinsville, Ky., who had been commissioned in the Medical Officers' Reserve Corps. The Adjutant General, however, on December 3, sent a telegram addressed to "Lieut. Charles A. Robertson, Medical Reserve Corps, Ridgetop, Tenn.," reading: "You were assigned to active duty September 25 * and directed to proceed to Fort Benjamin Harrison and report to commandant, Medical Officers' Training Camp, that post, for course of instruction Travel necessary in military service. Comply at once." Dr. Robertson thereupon proceeded to Fort Benjamin Harrison and sent from there the following telegram: "Acting on your telegram December 3, reported to Fort Benjamin Harrison to-day. No commandant Medical Officers' Camp here. I have not applied for a commission and have not been offered or accepted one. Have had some correspondence with War Department about special service in tuberculosis at the Watauga Sanitarium, Ridgetop, Tenn. Advise if order is an error or direct what I shall do." Held, That there is no authority for the payment of Doctor Robertson's mileage account nor for otherwise compensating him to cover his time and expenses. The War Department's order which he received was not, and could not have been, intended for him and he could not properly act under it. It was addressed to a commissioned officer of the Army and he knew that he was not such an officer. He had not applied for a commission and had not been offered one. 245.6, Mar. 12, 1918.

RETROACTIVE ORDERS

46. A reserve officer was by competent War Department orders relieved from active duty. Soon thereafter the War Department after the receipt of further advice and information issued another order assigning him to active duty. As the former order relieving him from active duty has been executed, it can not now be revoked in order to clear the officer's record of the inactive status; neither can the subsequent order assigning him to active duty be made retroactive. (Dig. Op. J. A. G. 1912, p. 456.) 241.11, Jan. 15, 1919.

Question. Whether a reserve officer is entitled to pay and allowances for a tour of 15 days' duty, performed voluntarily and without orders, at the training camp of a regiment to which he did not belong, after he had requested an assignment to duty, which request was dated the day before the regiment went into camp, and was returned disapproved when the tour of duty was almost finished?

Answer. A reserve officer can draw pay and allowances only "when on active duty." No order assigning this officer to active duty ever issued, and the 72746-32 -3

issuance of such an order now or in the future would be illegal.

Orders pur

porting to call reserve officers to active duty are manifestly in the same category with those purporting to make appointments, or to muster into or out of the Federal service, and any such orders made to date from, or take effect from, dates prior to the issuance of the orders therefor are without legal sanction. (See Dig. Op. J. A. G., 1912, p. 277, ID.) 210.455, Aug. 22, 1922.

DATE OF TERMINATION

47. A member of the Officers' Reserve Corps on duty at a reserve officers' training camp was found to be physically incapacitated and was relieved from duty at such encampment and ordered to proceed to his home and there await further orders. Two months later he was honorably discharged from the service of the United States, "his services being no longer required." Held, That the order to proceed to his home and there await further orders did not operate to relieve him from his active-duty status as a reserve officer. Accordingly he was entitled to pay and allowances up to the date of his discharge. 154, Apr. 18, 1918.

A reserve officer, on reporting pursuant to orders for active duty training, was found physically disqualified and ordered home, but was permitted to remain on an inactive status and participate in the training activities. His physical disqualification was later waived by the War Department. On proposal to place the officer in an active-duty status for the entire training period by revoking as erroneous the order relieving him from duty, Held, That as the order placing him on inactive status was valid and issued by competent authority, the fact that he remained at camp and performed duty is immaterial, since a subsequent order restoring him to active duty can not be given retroactive effect. 210.455, Mar. 13, 1929.

An Officers' Reserve Corps (Air Reserve) officer ordered to active duty effective July 1, 1928, whose order specified that "he will be relieved from duty June 30, 1929, on which date he will revert to an inactive status," was admitted to hospital on March 27, 1929, and was not discharged from the hospital until some time after June 30, 1929. Held, That his active-duty status ceased on June 30, 1929, pursuant to directions to that effect in the order placing him on active duty. 326.21, Nov. 25, 1929.

DURATION OF TERM

48. Section 37a, National Defense Act (41 Stat. 776), provides that "To the cxtent provided for from time to time by appropriations for this specific purpose, the President may order reserve officers to active duty at any time and for any period." The acts of June 30, 1922 (42 Stat. 723), and March 2, 1923 (42 Stat. 1381), make appropriations for the fiscal years ending June 30, 1923, and June 30, 1924, respectively, for payment of reserve officers called to active duty for 15 days' training, and also for payment of certain reserve officers called to active duty for longer periods. Neither of these acts, however, authorizes payment of reserve officers of the Engineer Corps called to active duty for a longer period than 15 days and assigned to river and harbor work. 326.21, June 1, 1923.

The restriction to 15 days of active-duty detail of reserve officers is addressed to the reserve officer in his capacity as such, and not to him as an individual, and therefore does not prevent detail to 15 days of training of a reserve officer

who had already during current fiscal year had 15 days' active-duty training as an enlisted reservist. 326.21, May 10, 1926.

A reserve officer erroneously ordered to active duty for a second 15-day period of training during the same fiscal year is chargeable with knowledge of the legal limit and should be requested to refund to the United States the mileage, pay, and allowances received for such unauthorized period. 210.455, May 27, 1926.

A member of the Officers' Reserve Corps, assigned to active duty on a transport, under statute limiting the employment of members of the Officers' Reserve Corps on active duty to a period not exceeding 15 days, and relieved from such duty outside the limits of the port of debarkation, would have no valid claim for pay for time after being so relieved. 326.21, July 9, 1928.

RETIRED GENERAL OF THE ARMIES

49. The General of the Armies may be assigned to active duty after retirement and in peace times may serve in an advisory capacity on the War Department General Staff, the Joint Army and Navy Board, and the War Council of the War Department. 210.455, June 7, 1924.

RETIRED OFFICERS

Secs.

50. CREATION OF STATUS.

51. DISTINGUISHED FROM ACTIVE SERVICE.

CREATION OF STATUS

50. Section 24, National Defense Act of June 3, 1916, provides:

That in time of war retired officers of the Army may be employed on active duty, in the discretion of the President, and when so employed they shall receive the full pay and allowances of their grade.

Held, That as retired officers ordered to active duty under this statute are entitled to active-duty pay only when " employed on active duty," full pay and allowances do not begin to accrue until the officer starts to obey his orders placing him on active duty. 88-630, Aug. 14, 1917. See paragraph 3, section 127a, National Defense Act of 1920, reenacting provision cited above.

A retired officer, assigned to active duty and ordered to report for assignment to duty, is entitled to full pay from the date he enters upon such duty, and not from the date of notice to him of the original order of assignment. It is immaterial that the War Department order placing this officer on active duty did not expressly refer to section 24, National Defense Act (39 Stat. 166, 182), and did not purport to be by direction of the President, since it was in fact issued as a war measure, “for the purpose of relieving an officer still on the active list from duty in the field"; and since, being issued by the Secretary of War, it must be assumed that the order was in fact the order of the President, although the order does not specifically so state. 88-630, Aug. 16, 1917.

See paragraph 3, section 127a, National Defense Act of 1920, reenacting the provision referred to above in section 24, National Defense Act of 1916.

An officer on duty in the Philippines received an order retiring him for disability incident to the service. He did not arrive in the United States for more than two months thereafter, because of delay in transport service. No order placing him on active duty having issued, he was not in active-duty status