« ForrigeFortsett »
fraudulent enlistment; he is, however, permitted to retain the pay paid him currently while serving. 4 Comp. Dec., 151; 5 id., 543; 8 id., 679; 12 id., 326 and 633; 17 id., 122; 22 id., 538. And it has been said, 8 Comp. Dec., 655, 657
Andrew Moonert was discharged for a cause (minority concealed at enlistment) involving fraud on his part in the enlistment. The service from which he was so discharged entitled to no pay, traveling allowances, or other allowances, is wholly illegal, and is not to be considered service for any purpose. (See Digest Second Comp. Dec., vol. 3, sections 308 and 981.)
This is the sound and the correct view. A contract of enlistment of this character is voidable, and when avoided by the Government is void ab initio. It must follow that the services in such an enlistment may not be counted either for longevity increase of pay or for retirement, as no lawful service was rendered. It is hardly necessary to suggest that the enlistment being voidable the case is otherwise if the Government upon discovery of the fraud elects to hold the offender to the contract of enlistment. The service is thereby validated. In re Grimley, 137 U. S., 147; In re Morrisey, id., 157.
Your questions are answered accordingly. While the enlistment under the name of Andrew Williams, commencing July 13, 1913, fraudulent in its inception, was not avoided by the Government, but without knowledge of the fraud Wright, alias Williams, was held to the enlistment, prosecuted for and convicted of desertion, this does not change the enlistment from its fraudulent character. The Government not having had knowledge of the fraud while the enlistment was current, made no election which may be construed as validating the service; it was an unlawful service and Wright, alias Williams, may not profit by his fraud. Such service may not be counted.
With respect to the enlistment as George Wright, commencing April 27, 1916, the Government with full knowledge of the fraud, having elected to hold him to the enlistment by honorably restoring him to duty after trial and conviction and after service of a portion of the sentence, Wright is entitled to count all service during this enlistment except the period he was serving sentence; that is, he is entitled to credit as though the enlistment at the beginning had not been fraudulent, and is entitled to count the period while in confinement awaiting trial and the period in confinement while awaiting sentence.
1 Amended March 22, 1922, to read:
• * Wright is entitled to count all service during this enlistment except the period in confinement awaiting trial and awaiting sentence and the period he was serving sentence; that is, he is entitled to credit as though the enlistment at the beginning had not been fraudulent See the act of April 27, 1914, 38 Stat., 353.
HIGHER COMMAND_ARMY OFFICER. · Aero squadrons are the smallest administrative tactical units of the Air Service
and a first lieutenant assigned to command a subdivision thereof, known as a “ flight,” does not exercise a command within the meaning of the act of
April 26, 1898, 30 Stat., 365, authorizing higher command pay. Decision by Acting Comptroller General Ginn, March 15, 1922:
William T. Clements, formerly a first lieutenant, Air Service, United States Army, requested, December 1, 1921, review of settlement No. 764387, dated July 1, 1921, War Department Division of this office, by which was disallowed his claim for the difference between the pay of a first lieutenant and captain, United States Army, on foreign service and assigned to duty requiring regular and frequent participation in aerial flights, August 27, 1918, to April 8, 1919, while in command of Flight C, 17th Aero Squadron, A. E. F.
The record of service of claimant as an officer and the assignment upon which the claim is based were reported upon by the Chief of Air Service, June 2, 1921, as follows:
1. The records of this office show that 1st Lieut. William T. Clements, Air Service, was assigned to the 148th Aero Squadron per authority wire No. 525-A, Hq. 2nd Air Service Depot, A. E. F., July 3, 1918. Assigned to the 17th Aero Squadron (flying officer posted to squadron from the 148th Aero Squadron per S. O. 28, Hq. American Air Service Units with the B. E, F., August 28, 1918). Appointed flight commander by same authority and remained on such duties until March 31, 1919, when he was relieved from duty with the 17th Aero Squadron, which organization was demobilized April 1, 1919, at Garden City, L. I., N. Y. Lieut. Clements was honorably discharged April 8, 1919, at Mitchel Field, L. I., N. Y., per par. 99, S. 9. 20, Hq. Mitchel Field, April 8, 1919.
2. Tables of organization, Air Service, A. E. F., approved Sept. 8, 1918, provided that aero squadrons be composed of three flights, each flight to be composed of one captain and certair first and second lieutenants, but a squadron was the smallest unit for which these tables provide a commanding officer, there being no separate table for a flight.
On the basis of this report claim was disallowed as the “ officer did not exercise a command, while performing the duties of flight commander, as contemplated by the act of April 26, 1898”; the ground therefor being that an aero squadron is the smallest administrative tactical unit of the Air Service, corresponding in this respect to a company; and although, as in the latter, there were subordinate divisions, these subordinate divisions corresponded to the platoons and squads of the company.
It has been held, 6 Comp. Dec., 905, under section 7 of the act of April 26, 1898, 30 Stat., 365, here in question, that a second lieutenant 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. And the rule is necessarily the same notwithstanding the fact that under tables of organization a major may command an aero squadron and a captain a flight thereof.
It was said, in Humphreys v. United States, 38 Ct. Cls., 689, 692:
It is also to be said that the term "command" in the statute refers not to the commander but to the commanded-not to rank or grade or the giving of orders, but to orgunized bodies of troops whose commanding officers have a
certain rate of pay regulated by law. The command of a brigadier is his brigade; the command of a colonel is his regiment; the command of a captain is his company. A lieutenant colonel has no command ; that is to say, he commands no integral part of a regiment. The commanders of companies do not report to the commanders of battalions, but direct to the regimental headquarters. The term " battalion" is merely tactical, and the assignment of command to field officers is merely to designate their places in the field.
See also United States v. Mitchell, 205 U. S., 161, and 27 Comp. Dec., 1074.
It appearing that the settlement was in consonance with precedents of long standing, upon a review of the matter the settlement is sustained.
DAMAGES TO PRIVATE PROPERTY BY ARMY.
The general rule that the accounting officers will not consider a claim which is
pending before Congress does not prevent consideration and payment from the appropriation in act of June 5, 1920, 41 Stat., 965, of a claim for damages to private property incident to the training, practice, operation, or maintenance of the Army, which was transmitted to Congress some eighteen years ago and never acted upon.
Decision by Acting Comptroller General Ginn, March 15, 1922:
Dr. Edward S. Burnham requested March 6, 1922, reconsideration of my action February 25, 1922, in affirming settlement No. 805121, dated December 15, 1921, wherein the War Department Division of this office disallowed his claim for $81.67 as reimbursement for damages alleged to have been incurred by his house on Sullivans Island, S. C., in the year 1900, through heavy gun firing of the United States Artillery Corps.
A board of officers examined into this claim shortly after it arose and found, as stated by the Secretary of War, that the claim was just and fixed the damage at $81.67. It was transmitted December 20, 1902, by the then Secretary of War to the then Secretary of the Treasury and by him, January 2, 1903, was forwarded to the Speaker of the House of Representatives. The claim was there referred to the Committee on Claims and ordered to be printed. No action having been taken, the claim was again, February 25, 1904, transmitted by the Secretary of War to the Secretary of the Treasury, who forwarded it, February 27, 1904, to the Speaker of the House of Representatives. It was referred this time to the Committee on Appropriations and ordered to be printed. Congress did not make an appropriation for the payment of the claim, and no further action appears to have been taken in the matter until June 17, 1916, when it was brought to the attention of the then Secretary of War. After an investigation, without success, to locate the papers, the Chief of Finance, November 28, 1921, recommended to the Secretary of War that he approve the claim and forward it to the General Accounting Office for settlement. This was done. The claim was disallowed by the War Department Division of this office on the ground that the accounting officers were without jurisdiction inasmuch as the matter had been transmitted to Congress.
Following a long line of precedents and the settled rule of the accounting officers not to consider a claim when it was under consideration by Congress, the disallowance was affirmed on review. However, it is now shown that no affirmative action has been taken by Congress in the matter since the claim was transmitted to the Speaker of the House of Representatives nearly 18 years ago and reconsideration is requested on the ground that the claim is just and an allowance by the accounting officers will obviate the necessity for the introduction of a special measure granting relief.
While the claim had been transmitted to Congress no action appears to have been taken thereon and it is believed that the accounting officers may now assert jurisdiction in the matter. This is not a case where the claimant has voluntarily presented his claim to Congress and where it is undergoing consideration.
The Army appropriation act of June 5, 1920, 41 Stat., 965, makes appropriations for the fiscal year of 1921:
For payment of claims for damages to and loss of private property incident to the training, practice, operation, or maintenance of the Army that have accrued, or may hereafter accrue, from time to time, to be immediately available and to remain available until expended, $40,000: Provided, That settlements of such claims shall be made by the Auditor for the War Department, upon the approval and recommendation of the Secretary of War, where the amount of damages has been ascertained by the War Department, and payment thereof will be accepted by the owners of the property in full satisfaction of such damages.
The appropriation is expressly made retroactive by being made available for the payment of claims for damages to private property " that have accrued” from time to time. There is no language in the appropriation which prevents it from being available for the payment of a claim for damages to private property which accrued in the year 1900, and was unsatisfied on June 5, 1920.
The matter has been investigated by the Secretary of War and he has recommended that claimant be allowed $81.67 in full satisfaction for all damages to his private property and claimant has signified his willingness to accept said amount in full settlement.
As the appropriation is available and as the conditions precedent therein named have been met, the settlement is reversed and $81.67 is certified due claimant.
ARRESTS BY STATE OFFICIALS FOR FEDERAL OFFENSES.
The expense of arrest and detention of persons by sheriffs, constables, and
jailers, at the request of Federal agencies other than officers of the Federal judiciary, which action is subsequently confirmed by formal complaint and arrest by the marshal's office, is an expense of the judiciary, and payable from the appropriation for salaries, fees, and expenses, United States marshals; if not so confirmed such expenses are not chargeable to the judiciary appropriation unless specially taxed under section 846, Revised Statutes.
Acting Comptroller General Ginn to the Attorney General, March 15, 1922: . I have your letter of February 6, 1922, requesting decision of questions set forth therein as follows:
(1) Whether it (Department of Justice) may pay accounts of sheriffs, con. stables and jailers for arresting and detailing persons prior to the issuance of warrants, without special taxation under section 846, in cases where the complaint is filed or the service requested by other agencies of the Government and the action of such other agencies is thereafter confirmed by the United States attorney or United States marshal either in approving the complaint or in requesting the issuance of warrant. It would, of course, be understood that such expenses would not be paid from the judiciary appropriation if the agent acted in error; that is, his action in requesting the detention of the prisoner was not subsequently confirmed by the United States attorney or the United States marshal.
(2) Whether this department may not, without special taxation under section 846 R. S., pay such expenses when incurred at the request or under the direction of a special agent of the Bureau of Investigation of this department, irrespective of whether the action of the agent is thereafter confirmed by the district attorney. The reason for making an exception in this class of cases is that special agents of the Bureau of Investigation are attached to this department and the expense is properly payable from a departmental appropriation,
You refer in this connection to a decision of this office to the Attorney General dated January 17, 1922, on questions of payment of charges of a deputy sheriff for his services in arresting and detaining on request of the postal authorities a person charged with violation of postal laws, in advance of complaint before a commissioner and the issuance and service of a warrant of arrest by the marshal's office, and of charges of a sheriff for an arrest and detention upon request of a special agent of the Department of Justice in advance of complaint and warrant.
Decision in each case was to the effect that under well established and long continued ruling and practice the expenses were not chargeable to a judiciary appropriation but to the appropriation of the administrative service in which the inspector and agent were employed. Accordingly it was held that the charge in the postal case was not payable from any appropriation under your control, and that the charge in the other case was payable from the administrative appropriation of your department for detection and prosecution of crimes.
The decision is in accordance with established rule and practice as shown by citation of authorities in the decision. The rule is that such charges can not lawfully be paid from judiciary appropriations, that is to say, the appropriations for the courts and their officers, unless made a charge against those appropriations by special taxation and allowance as extraordinary expenses under section 846, Revised Statutes. Your present submission suggests a reversal or modification of that rule.
No question is raised as to the legality and propriety of paying charges of this general character. The sole questions at issue are