224a. Discharge or retirement of officers physically disqualified for promotion.-* * * And provided, That should the officer fail in his physical examination, and be found incapacitated for service by reason of physical disability contracted in line of duty he shall be retired with the rank to which his seniority entitled him to be promoted; but if he should fail for any other reason he shall be suspended from promotion for one year, when he shall be reexamined, and in case of failure on such reexamination he shall be honorably discharged with one year's pay from the Army. Sec. 3, act of Oct. 1, 1890 (26 Stat. 562); 10 U. S. C. 932.

So much of the above provision as relates to failure in physical examination by reason of disability not contracted in line of duty remains in force, as to officers other than those of the Medical, Dental, and Veterinary Corps (J. A. G. 010.3, October 20, 1930, page 74). As to the latter, see 278, post.

Whenever an

225. Discharge or retirement of officers in class B.officer is placed in class B, a board of not less than three officers shall be convened to determine whether such classification is due to his neglect, misconduct, or avoidable habits. If the finding is affirmative, he shall be discharged from the Army; if negative, he shall be placed on the unlimited retired list with pay at the rate of 22 per centum of his active pay multiplied by the number of complete years of commissioned service, or service which under the provisions of this Act is counted as its equivalent, unless his total commissioned service or equivalent service shall be less than ten years, in which case he shall be honorably dis charged with one year's pay. The maximum retired pay of an officer retired under the provisions of this section prior to January 1, 1924, shall be 75 per centum of active pay, and of one retired on or after that date, 60 per centum. * * * Sec. 24b, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 773); 10 U. S. C. 571.

See also 1462, post.

For classes A and B, see ante, 141.

Executive Order No. 6612, February 22, 1934, revoked Executive Order No. 3870, June 19, 1923, which authorized the Secretary of War to act for and in the name of the President in approving or disapproving the findings of the Honest and Faithful Board.

Notes of Decisions

Philippine Constabulary service.-An officer of the Regular Army, retired April 18, 1929, is entitled under the last paragraph of 1375, post, to retired pay based on his

commissioned service in the Philippine Constabulary added to length of such service in the Regular Army. Byrne v. U. S. (1931), 73 Ct. Cl. 439.

226. Discharge or retirement of officers selected for elimination.officers selected for elimination of less than ten years' commissioned service may, upon recommendation of the board herein provided for, be discharged with one year's pay; or those of more than ten years' and less than twenty years' commissioned service may, upon recommendation of the board, be placed on the unlimited retired list with pay at the rate of 2% per centum of their active pay multiplied by the number of complete years of such commissioned service; or those of more than twenty years' commissioned service may, upon recommendation of the board, be placed on the unlimited retired list with pay at the rate of 3 per centum of their active pay multiplied by the number of complete years of such commissioned service, not exceeding 75 per centum * *: Provided further, That any officer of less than ten years' commissioned service but of more than twenty years' service accredited toward retirement or for increased pay for length of service may, in lieu of discharge with one year's pay as hereinbefore provided, if he so elects, be appointed a warrant officer and carried as an additional number in that grade; or he may, if he so elects, be retired with the rank of warrant officer with pay at the rate of 2 per centum of the pay of a

warrant officer multiplied by the number of years of such accredited service: * * * Act of June 30, 1922 (42 Stat. 722-723); 10 U. S. C. 978, 979, 597.

In connection with the elimination of officers under this section, provision was made for discharge and recommission in lower grade by the act of June 30, 1922, supra, the officers so demoted being saved their current pay and allowances and service credited for retirement by act of September 14, 1922 (42 Stat. 840).

Notes of Decisions

officer retired under the provisions of the act of June 30, 1922, for the reduction of the commissioned personnel of the Army was not increased by subsequent active service of the officer while on the retired list except to the extent that it was increased by an increase in his longevity or period pay resulting from such service. Stephenson v. U. S. (1935), 81 Ct, Cl. 634.

Allowance of one year's pay.-An amount equal to one year's pay allowed an officer of the United States Army honorably discharged, or eliminated, under this section was in the nature of a bonus or additional compensation and not simply a gratuity or gift made without consideration. Held, such bonus is taxable income. 10 B. T. A. 1192. Retired pay.The retired pay of an Army 227. Discharged officers; right to trial.-When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial, to try such officer on the charges on which he shall have been dismissed. And if a courtmartial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. R. S. 1230; 10 U. S. C. 573.

Validity.

Notes of Decisions Notwithstanding an opinion of cover because R. S. 1230 had been superseded the Attorney General that section 12, act by A. W. 118, ante, 476. The Supreme Court, of March 3, 1865 (13 Stat. 489), the pred- in Wallace v. United States (1922), 257 U. S. ecessor of this section, was constitutional 541, affirmed the decision of the Court of (12 Op. Atty. Gen. 4), its constitutionality Claims, but on the ground that the nominahas, from time to time, been questioned, | tion to and confirmation by the Senate of although never expressly determined in the appellant's successor, with rank as of the day Federal courts, on the theory that where an following the day of appellant's dismissal, opofficer has been once separated from the mili-erated to remove appellant. Hence it was tary service he may not again become an off- unnecessary for the Supreme Court to concer therein except in the constitutional man-sider the constitutionality of R. S. 1230, but ner of nomination, confirmation, appoint- the court did indicate its view that R. S. 1230 ment, and acceptance. (On reentry after sep- was not repealed by A. W. 118, in that it aration, in a case not involving R. S. 1230, stated that A. W. 118 must "be read with see United States v. Corson (1885), 114 U. S. section 1230, Revised Statutes" (p. 544), and 619, 622.) In Wallace v. United States further intimated its opinion that R. S. 1230 (1920), 55 Ct. Cl. 396, the claimant had was valid in concluding its opinion as folbeen dismissed by Presidential order of Feb- lows: "This is conclusive and renders it unruary 11, 1918, of which he was notified on necessary to consider whether appellant lost February 13, 1918. On March 1, 1918, his his right to apply for a court martial under successor was nominated, and on March 8, section 1230 by waiting five months, a ques1918, the nomination was confirmed. On tion not free from doubt, considering the June 16, 1918, claimant made application exigencies and need for dispatch in time of for trial which application was refused and war" (p. 547). Motion for a rehearing, on refusal communicated to claimant on Sep- the ground that the Senate did not know, tember 7, 1918. On February 5, 1919, he when considering the confirmation of appelattempted to report for duty. The Court lant's successor, of the dismissal of appellant, of Claims, in dismissing the petition, held was denied in (1922) 258 U. S. 296. (1) that claimant was displaced by the appointment of his successor, and consequently could not recover pay for the period after that date, and (2) that for the brief period between his dismissal and the appointment of his successor he could not re

As to the power of the President to remove executive officials-in the specific case, a first-class postmaster-appointed by and with the advice and consent of the Senate, see Myers v. U. S. (1926), 272 U. S. 52.

228. For text of this section as published in the 1929 Edition, see 14, ante.

229. Discharge of flying cadets.-Upon completion of a course prescribed for flying cadets, each flying cadet, if he so desire, may be discharged and commissioned as a second lieutenant in the Officers' Reserve Corps: Provided, That the Secretary of War is authorized to discharge at any time any flying cadet whose discharge shall have been recommended by a board of not less than three officers. Act of July 11, 1919 (41 Stat. 109); 10 U. S. C. 299. For second paragraph of the 1929 text of this section, see 35, ante.

230. Discharge of enlisted men on account of dependent relatives.-When by reason of death or disability of a member of the family of an enlisted man, occurring after his enlistment, members of his family become dependent upon him for care or support, he may, in the discretion of the Secretary of War, be discharged from the service of the United States. Sec. 29, act of June 3, 1916 (39 Stat. 187); sec. 29, act of June 4, 1920 (41 Stat. 775); 10 U. S. C. 652.

The section amended was similar except that it was limited in its application to cases where support was necessary and provided for the alternative furlough to the Regular Army Reserve. A provision of sec. 30, act of Feb. 2, 1901 (31 Stat. 756), had permitted discharge after one year's service where one parent had died and the other was solely dependent upon the soldier for support.

231. Discharge of enlisted men for minority.—* * * The Secretary of War shall discharge from the military service with pay and with the form of discharge certificate to which the service of each, after enlistment, shall entitle him, all enlisted men under the age of eighteen on the application of either of their parents or legal guardian. * Act of June 30, 1921 (42 Stat. 74); 10 U. S. C. 653a.

* Provided further, That enlisted men under the age of eighteen discharged on the application of either of their parents or legal guardian shall be furnished with transportation in kind from the place of discharge to the railroad station at or nearest to the place of acceptance for enlistment, or to their home if the distance thereto is no greater than from the place of discharge to the place of acceptance for enlistment, but if the difference be greater they may be furnished transportation in kind for a distance equal to that from the place of discharge to the place of acceptance for enlistment. Act of Sept. 22, 1922 (42 Stat. 1021); 10 U. S. C. 752; 34 U. S. C. 895.

* Provided further, That hereafter upon the presentation of satisfactory evidence as to his age and upon application for discharge by his parent or guardian presented to the Secretary of War within six months after the date of his enlistment, any man enlisted after July 1, 1925, in the Army under twentyone years of age who has enlisted without the written consent of his parent or guardian, if any, shall be discharged with the form of discharge certificate and the travel and other allowances to which his service after enlistment shall entitle him. Act of Feb. 12, 1925 (43 Stat. 896); 10 U. S. C. 653.

The first paragraph above, omitted from the original Code and Military Laws, 1929, and the second paragraph, in the original Code but omitted from the Military Laws, 1929, are added to this section (J. A. G. 010.3, October 20, 1930, page 61; November 12, 1929, page 132).

232. Discharge of enlisted men by purchase. That in time of peace the President may, in his discretion and under such rules and upon such conditions as he shall prescribe, permit any enlisted man to purchase his discharge from the Army. The purchase money to be paid under this section shall be paid to a paymaster of the Army and be deposited to the credit of one or more of the current appropriations for the support of the Army, to be indicated by the Secretary of War, and be available for the payment of expenses incurred during

the fiscal year in which the discharge is made. Sec. 4, act of June 16, 1890 (26 Stat. 158); 10 U. S. C. 651.

233. Discharge of enlisted men for misrepresentation of age; World War service. That in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States Army, their widows and dependent children, a soldier who served as an enlisted man between April 6, 1917, and November 11, 1918, both dates inclusive, and who was discharged for fraudulent enlistment on account of misrepresentation of his age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom if his service otherwise was such as would have entitled him to an honorable discharge: Provided, That no back pay or allowances shall accrue by reason of the passage of this Act. Act of Mar. 2, 1929 (45 Stat. 1505); 10 U. S. C. 654α. That in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States Army, their widows and dependent children, a soldier who served as an enlisted man between April 6, 1917, and November 11, 1918, both dates inclusive, and who was discharged for fraudulent enlistment on account of minority or misrepresentation of age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom if his service otherwise was such as would have entitled him to an honorable discharge: Provided, That no back pay or allowance shall accrue by reason of the passage of this Act: Provided further, That in all such cases the War Department shall, upon request, grant to such men, or their widows, a discharge certificate showing that the soldier is held and considered to have been honorably discharged under the provisions of this Act. Act of Mar. 3, 1936 (49 Stat. 1159); 10 U. S. C. 654b. The act of Mar. 16, 1926 (44 Stat. 208) of similar purport but applying only to men who enlisted during the World War period, is omitted as superseded by this section.

234. Discharge of enlisted men for misrepresentation of age; Spanish War and Philippine Insurrection service. That in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States Army, their widows and dependent children, a soldier who was enlisted between April 21, 1898, and July 4, 1902, both dates inclusive, and who was discharged for fraudulent enlistment on account of misrepresentation of his age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom, if his service otherwise was such as would have entitled him to an honorable discharge: Provided, That no back pay or allowances shall accrue by reason of the passage of this Act: Provided further, That in all such cases the War Department shall, upon request, grant to such men or their widows a discharge certificate showing that the soldiers are held and considered to have been honorably discharged under the provisions of this Act. Act of Jan. 5, 1927 (44 Stat. 932); 10 U. S. C. 655.

That in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States Army, their widows and dependent children, a soldier who was enlisted between April 21, 1898, and July 4, 1902, both dates inclusive, and who was discharged for fraudulent enlistment on account of minority or misrepresentation of age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom, if his service otherwise was such as would have entitled him to an honorable discharge: Provided, That no back pay or allowance shall accrue by reason of the passage

of this Act: Provided further, That in all such cases the War Department shall, upon request, grant to such men or their widows a discharge certificate showing that the soldiers are held and considered to have been honorably discharged under the provisions of this Act. Act of May 25, 1937 (50 Stat. 203); 10 U. S. C. 655.

The act of June 22, 1938 (52 Stat. 940) makes similar provision for members of the Navy and Marine Corps enlisted between April 21, 1898, and July 4, 1902.

235. Discharge certificate; issue in true name. That the Secretary of War and the Secretary of the Navy be, and they are hereby, authorized and required to issue certificates of discharge or orders of acceptance of resignation, upon application and proof of identity, in the true name of such persons as enlisted or served under assumed names, while minors or otherwise, in the Army or Navy during any war between the United States and any other nation or people and were honorably discharged therefrom. Applications for said certificates of discharge or amended orders of resignation may be made by or on behalf of persons entitled to them, but no such certificate or order shall be issued where a name was assumed to cover a crime or to avoid its consequence. Act of Aug. 22, 1912 (37 Stat. 324); 5 U. S. C. 200; 34 U. S. C. 597.

Similar provisions for relief of soldiers and sailors who enlisted or served under assumed names during the War of the Rebellion were made by act of Apr. 14, 1890, amended by act of June 25, 1910 (26 Stat. 55; 36 Stat. 824), to include those who served in the Spanish War or Philippine Insurrection.

For form of discharge certificate to be issued to man enlisted under 21 years of age without the written consent of his parent or guardian and thereafter discharged at the request of the parent or guardian, see 231, ante.

236. Discharge certificate; replacement when lost or destroyed. That whenever satisfactory proof shall be furnished to the War Department that any officer or enlisted man who has been or shall hereafter be honorably discharged from the military service of the United States has lost his certificate of discharge, or the same has been destroyed without his privity or procurement, the Secretary of War shall be authorized to furnish to such officer or enlisted man, or to the widow of such officer or enlisted man, a certificate of such discharge, to be indelibly marked, so that it may be known as a certificate in lieu of a lost or destroyed discharge: Provided, That such certificate shall not be accepted as a voucher for the payment of any claim against the United States for pay, bounty, or other allowance, or as evidence in any other case. Act of July 1, 1902 (32 Stat. 629); 5 U. S. C. 199.

237. Discharge certificate; forging, counterfeiting, or altering.—Whoever shall forge, counterfeit, or falsely alter any certificate of discharge from the military or naval service of the United States, or shall in any manner aid or assist in forging, counterfeiting, or falsely altering any such certificate, or shall use, unlawfully have in his possession, exhibit, or cause to be used or exhibited, any such forged, counterfeited, or falsely altered certificate, knowing the same to be forged, counterfeited, or falsely altered, shall be fined not more than $1,000 or imprisoned not more than one year, or both, in the discretion of the court. Act of Mar. 4, 1917 (39 Stat. 1182); 18 U. S. C. 136.

238. Discharge certificate; return after settlement of accounts. In all cases where it has become necessary for any officer or enlisted man of the Army to file his evidence of honorable discharge from the military service of the United States to secure the settlement of his accounts, the accounting officer with whom it has been filed shall, upon application by said officer or enlisted man, deliver to him such evidence of honorable discharge; but his accounts shall first be duly settled, and the fact, date, and amount of such settlement shall be clearly