1785. CHIEFS OF BUREAUS AND BRANCHES. 1786-1854. COMMISSIONED OFFICERS.

1855. CONTRACT SURGEONS.

1856-1885. ENLISTED MEN.

1886-1889. NURSES.

1890. PHILIPPINE SCOUTS.

1891-1897. RETIRED COMMISSIONED OFFICERS.

1898. RETIRED GENERAL OF THE ARMIES.

1899-1901. WARRANT OFFICERS.

1902-1903. WARRANT OFFICERS, ARMY MINE PLANTER SERVICE.

APPLICANTS FOR ENLISTMENT

1783. Claimant rejected for enlistment failed to make use of Government transportation, issued for return to his home, in the allotted time for presentation of the order to the railroad company for exchange for the regular ticket. About 40 days after this allotted time, he procured transportation to his home. He is not entitled to reimbursement in the amount of the cost of the transportation. The act of July 9, 1918 (40 Stat. 845, 858), authorizing transportation "of applicants for enlistment between recruiting stations and recruiting depots," does not authorize reimbursement in the amount expended for transportation where the transportation in kind offered by the Government is not used. 155, Mar. 19, 1919.

The current appropriation act for the support of the War Department contains a provision identical with that quoted above (Q. M. C.; Transportation of the Army).

The appropriation made by act of July 11, 1919 (41 Stat. 104, 116), “for transportation of recruits and recruiting parties; of applicants for enlistment between recruiting stations and recruiting depots," is authority for payment for return transportation of rejected applicants for enlistment. 155, Dec. 1, 1919.

A similar provision is found under the heading "Transportation of the Army" in current act for support of War Department.

CADETS

1784. A cadet while at Hot Springs, Ark., on sick leave was ordered to report to West Point, N. Y., as a witness in a court-martial case, the order provided that "when excused by Superintendent, you will return to place of receipt by you of this telegram. Travel necessary in military service." The cadet is entitled to actual expenses as prescribed in paragraph 184, M. C. M. (par. 3b (2), AR 35-4120). Being a Government employee he is not entitled to receive the mileage and fees allowed to witnesses. Not being an officer of the Army he is not entitled to mileage allowed to officers traveling under orders. 250.462, Apr. 14, 1919.

CHIEFS OF BUREAUS AND BRANCHES

1785. A brigadier general, Infantry, of the Regular Army, was assigned to duty as acting chief of the Militia Bureau by special order of the War Department, reading as follows: "By direction of the President, Brig. Gen. United States Army, is assigned to duty as acting chief of the Militia Bureau." He claims pay of the grade of major general for the period during which he was on duty as acting chief of said bureau, and bases his claim upon sec. 3, act of Oct. 6, 1917 (40 Stat. 398, 411), which provides: "Hereafter, the chief of any existing staff corps, department, or bureau, except as is otherwise provided for the Chief of Staff, shall have the rank, pay, and allowances of major general." Whether the officer is entitled to the pay of a major general depends upon whether he occupied the office of Chief of the Militia Bureau and not upon the fact that he merely performed the duties of that office. The rule is well established that the right to compensation is incident to the legal title to the office and not to the performance of the duties thereof. (United States v. Andrews, 240 U. S. 90.) The assignment of the brigadier general as acting

chief of the Militia Bureau did not vest him, nor did it purport to vest him, with the office of said bureau. He was merely assigned to perform the duties of the office, and for the performance of such he is entitled only to the pay and allowances of his grade as brigadier general. 241.14, June 6, 1919.

The provision in sec. 3, act of Oct. 6, 1917, above referred to, was repealed by sec. 600, act of June 7, 1924 (43 Stat. 629).

Sees.

COMMISSIONED OFFICERS

1786-1800. ABSENCE FROM DUTY.

1801. ALLOTMENT OF PAY.

1802-1806. ALLOWANCES.

1807. ATTACHMENT OF PAY.

1808. DATE EFFECTIVE.

1809. DATE OF TERMINATION.

1810-1811. FLYING PAY.

1812. HEAT AND LIGHT IN KIND.

1813-1818. HIGHER COMMAND.

1819-1824. LONGEVITY; SERVICE COUNTED.

1825. MAXIMUM.

1826-1828. MOUNTS.

1829. PAYMENT.

1830-1832. RENTAL ALLOWANCE.

1833-1834. TRANSPORTATION OF DEPENDENTS.

1835-1842. TRANSPORTATION OF EFFECTS.

1843-1853. TRAVEL EXPENSE.

1854. WAIVER.

1786. An officer who, at his own request, has the time extended within which he is required to report for duty after acceptance of his commission is to be regarded as on leave of absence and not as absent from duty awaiting orders. 241.19, Feb. 5, 1919.

An officer was commissioned captain July 17, 1917, and discharged December 3, 1918. He had made several oral applications for leave of absence, all of which were refused. He is not entitled to pay for the period representing the leave of absence due him but not taken. 210.711, Feb. 25, 1919.

Leave granted an officer by the commanding officer of a hospital "for the purpose of enabling him to adjust his affairs," prior to undergoing an operation, is chargeable as ordinary leave and not as sick leave.

The practice now authorized by AR 605-115 of crediting an officer with 30 days' leave at the beginning of each fiscal year is not inconsistent with the act of July 29, 1876 (19 Stat. 102), and has the force of law.

An officer on ordinary leave in excess of the statutory amount is entitled to no allowances. 210.711, Feb. 23, 1924.

ACADEMIC LEAVE

1787. Under AR 605-115, May 12, 1925, paragraph 9c, and explanatory letter from the Secretary of War of May 13, 1924, there is no legal authority for granting academic leave under act of March 23, 1910 (36 Stat. 244), to officers who have just graduated from a service school and have been regularly detailed as instructors thereto, in advance of rendition of service in the latter capacity. 210.711, Sept. 29, 1926.

ACCRUED LEAVE

1788. Section 1265 of the Revised Statutes, providing full pay for an officer on leave of absence not to exceed 30 days in one year, and half pay for any excess, is modified by the act of July 29, 1876 (19 Stat. 102), so as to authorize the

Secretary of War to grant leave with full pay up to four months in any one leave year, provided that amount of leave has accrued to the officer concerned: but any leave used in excess of four months in one leave year must be on a half-pay status. 210.711, Dec. 5, 1923.

An officer was placed on half pay for a period of leave of absence in excess of his leave credits under the War Department rule for computation of leave laid down in paragraph 791⁄2, A. R., 1881, contained in substance in paragraph 3, AR 605-115, January 2, 1929, to wit:

When an officer is granted a leave of absence, it shall be charged to the year or years in which it first accrued in order of priority of date, and any balance of accrued leave remaining shall stand to his credit for future leaves: Provided, No credit shall stand longer than four years from date of accruing.

He claimed full pay for the period in question on the ground that there was no legal basis for cancellation of accrued leave in excess of four months and for the further reason that he was not advised by The Adjutant General at the time he took his leave that any part of it would be in excess of his leave credits. Held, That the cited regulation embodies a liberal interpretation of the controlling statutes, R. S. 1265 as amended by the acts of May 8, 1874 (18 Stat. 43), and July 20, 1876 (19 Stat. 102), which statutes may not be construed so as to prevent loss of leave accrued in excess of four months. Held further, That there is nothing in law or regulation requiring the War Department, or any branch, bureau, or office thereof, to advise an officer applying for leave as to what his pay status will be on taking advantage thereof. 210.711, Sept. 10, 1929.

CHANGE OF STATUS

1789. At the request of State authorities an officer, with his knowledge and consent, was granted leave of absence to enable him to attend a civil trial at which he was a material witness. Subsequently, upon learning that such leave would have to be on a half-pay basis because of his leave credits having been exhausted, he requested that the leave be rescinded, and that he be placed on detached service for the period in question. Held, That the leave having been duly granted, accepted, and availed of, the facts can not be changed by an administrative order setting forth that the time so absent was in reality on a detached service status. 210.711, Jan. 7, 1927.

DATE EFFECTIVE

1790. A leave of absence granted an officer in the Canal Zone upon a surgeon's certificate of disability was not a leave "for the purpose of visiting the United States" within paragraph 60, Army Regulations (par. 20d (1), AR 605-115), and hence took effect, under paragraph 58, Army Regulations (par. 20d (2), AR 605-115), the day following his departure, and not when he reached the United States. 210.7, Oct. 25, 1918.

Where an officer on duty at a foreign embassy is granted leave with permission to visit Europe and the United States, and visits Europe but not the United States, the leave so taken does not come within the provisions of the act of March 2, 1901 (31 Stat. 902), and paragraph 20d (1), AR 605–115, to the effect that leave granted an officer on foreign service for the purpose of visiting the United States shall be regarded as taking effect on the date when the officer reached, or might have reached, the United States. 210.711, July 16,

HALF-PAY STATUS

1791. The Commandant of the Infantry School, without authority granted 18 days' academic leave to an officer attending that school as student. Without the officer's knowledge, this period was subsequently charged to regular leave, with the result that in taking leave subsequently he exceeded his credits by 18 days. Held, That the War Department must insist on reimbursement of excess payments made. 210.711, Aug. 16, 1927.

PRIOR SERVICE COUNTED

1792. The rulings of this office and of the Comptroller of the Treasury (26 Comp. Dec. 57), that an enlisted man is not entitled to the bonus provided in sec. 1406, act of February 24, 1919 (40 Stat. 1151), if discharged to accept a commission in the Regular Army, on the ground that his service is, in fact as well as in contemplation of law, continuous, although his actual status may undergo a change, apply with equal force to an emergency officer discharged to accept a commission in the Regular Army. It follows that an emergency officer who accepts a commission in the Regular Army under section 24 of the National Defense Act, as amended by the act of June 4, 1920 (41 Stat. 771), and whose service has been continuous, is entitled to leave credits that accrued to him as such emergency officer, if such leave credits were not availed of during his emergency service. 210.711, Oct. 23, 1920.

It has been held that where service as commissioned officer and warrant officer is continuous or substantially so, a warrant officer is entitled to leave credits accruing to him while serving as an emergency officer and unavailed of during his commissioned service. (1899, post.) Held, in the instant case, That an officer appointed from warrant officer, with continuous service since his appointment as a warrant officer, is entitled to credit for leave accumulated while serving as a warrant officer, and unavailed of during such service. 210.711, July 13, 1923.

An officer of the Regular Army whose service as an emergency officer under a temporary commission, as a field clerk, and as an officer of the Regular Army was continuous, may include all such service in computing his leave credits. 210.711, Aug. 16, 1923.

The basic laws covering leave for officers, warrant officers, and field clerks (R. S. 1265 and the act of July 29, 1876; 19 Stat. 102) require continuous service in one or the other of these grades as a condition precedent to the accumulation of leave. While this office has held that one day's service as an enlisted man-being a necessary part of the mechanics of transformation from a commissioned to a warrant officer status-did not preclude credit for leave accumulated prior thereto, it must be Held, That five weeks' enlisted service between date of discharge from emergency commission and date of commission in the Regular Army constitutes such a hiatus as to preclude considering service as continuous for leave purposes under the above-cited statutes. 210.711, Mar. 29, 1927.

On question whether an officer of the Medical Department, commissioned while in service as a contract surgeon on full time, in 1917, is entitled to leave credits for his period of service as contract surgeon, Held, That as sec. 18, act of February 2, 1901 (31 Stat. 752), authorizing the appointment of contract surgeons during the period in question, is silent as to leave privileges, the terms of the contract of employment, which provided that the regulations as to leave for commissioned officers should govern, and which do not contravene