Forces Reserve Act are not applicable to the officer involved since they apply only to a Reserve officer on active duty at the time of conviction and sentence and the officer herein was not on active duty at such time. (Citing CMO 7-1938, p 80 and cases cited therein; CMO 1-1939, p 85; CMO 3-1951, p 81; CMO 4-1949, p 91.) Also a discharge under other than honorable conditions would be legally objectionable since the board's findings in this case contain no matter adverse to the officer and therefore no reason for effecting such a discharge pursuant to sec 249 (c) of the Armed Forces Reserve Act. (Citing Wichita v. PUC of Kansas, 260 US 48, 67 L ed 124, 43 S Ct 51; Mahler v. Ely, 264 US 32, 68 L ed 549, 44 S Ct 283; U. S. v. B. & O. Railroad, 293 US 454, 79 L ed 587, 55 S Ct 268; Florida v. U. S., 282 US 194, 75 L ed 291, 51 S Ct 119; Saginaw Broadcasting Co. v. Federal Communications Commission, 96 F2d 554, cert den 305 US 613, 83 L ed 391, 59 S Ct 72.) However the Secretary of the Navy, acting for the President, may accept the officer's resignation and effect his separation from the Naval Reserve under honorable conditions by the issuance of an honorable discharge certificate. However, since the officer is now on active duty his resignation should be submitted in the same manner as those of Regular Navy officers (see Arts H-1401 and H-6201 (2), BuPers Manual 1948 and Art C-10336(1) of the Bureau of Naval Personnel Manual.) OP JAGN 1954/203. 6 January 1954.

IV. RESERVE OFFICERS' TRAINING CORPS

§ 75. Students, Generally

§ 75.5. Physical examinations, generally.

Funds appropriated under the 1953 Department of Defense Appropriation Act (66 Stat 517; PL 488, 82nd Congress) may properly be expended in providing for the physical examination of applicants for enrollment in the advanced course of the Reserve Officers' Training Corps. The 1952 Department of Defense Appropriation Act evidenced an intent that government funds were not to be expended for the employment of civilian physicians to physically examine applicants other than those named in the Act; applicants for enrollment in the Reserve Officers' Training Corps were not so named (see JAGA 1952/2384, 12 Mar 1952). However, such wording has been deleted in its entirety in the present Appropriation Act, which makes provision under "Maintenance and Operations, Army," for "medical and dental care of personnel entitled thereto by law and regulation (including charges of private facilities for care of military personnel on duty or leave, except elective private treatment), and other measures necessary to protect the health of the Army; expenses for the Reserve Officers Training Corps and other units at educational institutions . . . ." Regulations provide that "the medical examination of applicants for enrollment in the advanced course, senior division, may be accomplished by a medical officer of the regular or reserve components of any of the Armed Forces, or any civilian doctor of medicine. . . When the examination is accomplished by a civilian physician or by a medical officer not on active duty, such examination will be at the applicant's

expense. Army commanders are responsible for using all available means to insure that examinations are accomplished prior to acceptance of individuals for ROTC training, provided it is at no additional expense to the government" (subpar 5c, AR 145-120, 7 Jun 1952). The requirement in secs 40 and 44, National Defense Act, as amended (10 USC 381, 382) that members of the ROTC be "physically fit" would seem to recognize the authority of the Army to provide physical examination of such persons. Moreover, decisions of the Comptroller General have indicated that if the physical examination is primarily for the benefit of the government rather than the individual, it may be accomplished at government expense (22 Comp Gen 32; 23 Comp Gen 747; 26 Comp Gen 544; 30 Comp Gen 388; 31 Comp Gen 465). The circumstances of this case indicate that this is true here. The limitation contained in subpar 5c, AR 145120, supra, on the use of all available means by the Army commander to accomplish physical examinations "provided it is at no additional expense to the government" would seem to preclude the use of mobile Army medical teams for such purpose, and should be removed if such use is desired. JAGA 1952/9303. 22 December 1952.

§ 85. Personal Injuries or Death

§ 85.5. Injuries or disability while traveling to or from drill or training camps.

A cadet who was injured while returning to his home from AFROTC summer camp was not on a "pay status" at the time of his injury and is not entitled to pay during the period of hospitalization (MS Comp Gen B-94889, 30 Comp Gen 445). The only allowance to which the cadet might have been entitled at the time he was injured is a subsistence allowance and where he has been furnished subsistence in kind while hospitalized, he is entitled to no monetary benefits. (Citing 10 USC 445-a et seq; par 91002, AFM 173–20; 10 USC 443). Op JAGAF 1953/41. 23 October 1953.

Federal law and Army regulations do not preclude an Army Reserve officer on active duty from accepting the appointment of notary public within a state. Whether the laws of the state impose any legal barrier to accepting and holding such office is a matter for determination by the proper state authorities. (Citing JAG 210.43, 28 Oct 1940; JAG 325, 31 Oct 1940; JAG 325.35, 28 Dec 1940; JAG 210.451, 24 Feb 1941; SPJGA 1942/1857, 7 May 1942; JAGA 1950/6696, 21 Nov 1950; JAG 013.2, 22 Nov 1940; SPJGA 1943/10, 7 Jan 1943; 26 Comp Gen 701.) JAGA 1953/1643. 6 February 1953.

RETIREMENT

I. IN GENERAL.
§ 1. Generally.

§ 5. Rank or Grade on Retirement.

§ 7. Advancement on Retired List.

§ 11. Recall to Active Duty; Re-enlistment.

§ 15. Termination of Retired Status.

II. DISABILITY RETIREMENT.

§ 20. Eligibility, Generally.

§ 23. Degree of Disability; Proof.

§ 31. Review; Reconsideration.

III. LENGTH OF SERVICE.

§ 35. In General.

§ 39. Qualifying Service.

IV. OTHER BASES OR GROUNDS FOR RETIREMENT. § 51. Age.

§ 55. Surplus in Grade; Elimination from Active List; Failure of Promotion.

V. RETIRED PAY.

§ 65. In general.

§ 67. Disability Retirement Pay.

§ 69. Service Counted in Computing Retired Pay.

§ 71. Dual Compensation.

§ 75. Miscellaneous.

VI. ACTIVITIES OF RETIRED PERSONNEL.

§ 79. Restrictions and Prohibitions.

I. IN GENERAL

§ 1. Generally

Pursuant to proceedings under the Act of 29 July 1941, PL 190, 55 Stat 606, 10 USC § 571 note, a lieutenant colonel in the Regular Army was officially notified that he had been recommended for removal from the active list of the Army, but prior to final action, it was desired to ascertain whether he preferred to avail himself of the voluntary retirement provisions afforded by law under AR 605-245. Complying with a direction to reply within three days, the officer in writing indicated his desire to retire under the provisions of the regulation. Accordingly, he was ordered retired from active duty, effective 30 April 1944. Some seven years after the order of retirement, he filed a complaint in the federal courts attacking the validity of his retirement. Held: Inasmuch as the War Department could validly require and direct a speedy reply in response to its request for the officer to indicate his desire to retire, and the officer communicated such desire to retire, his action must be regarded as voluntary and the order of retirement as a valid and binding exercise of military authority. Furthermore, there is no need to examine his charges of illegality in the proceedings resulting in the recommendation for his removal from active

service inasmuch as his retirement cut short those proceedings without final action by the War Department and rendered moot any questions concerning their regularity or validity. Hanes v. Pace (1953, CA, Dist of Col) 203 F2d 225.

§ 1.7. Date of retirement.

On 9 December 1952, the Secretary of the Navy approved the findings of a physical evaluation board and directed a warrant officer be permanently retired for physical disability. The Commandant of the Marine Corps issued orders transferring the warrant officer to the retired list effective 1 January 1953. However, on a recommendation that the warrant officer be authorized to appear before an Examining Board in Revision to give him the opportunity of retiring with the pay and rank of a commissioned warrant officer, to which his seniority entitled him to be promoted, the Secretary of the Navy, on 31 December 1952, canceled his action of 9 December 1952. On the same date the Commandant of the Marine Corps canceled the retirement orders he had issued. However, the Examining Board in Revision found the officer was not physically qualified for advancement to rank of commissioned warrant officer and on 24 February 1953, the Secretary of the Navy again approved the initial proceedings of the physical evaluation board and directed that the officer be permanently retired for physical disability. The Commandant of the Marine Corps, on 27 February 1953, issued necessary orders to the warrant officer transferring him to the permanent retired list, effective 1 March 1953. Held: In view of the provisions of the Uniform Retirement Date Act (46 Stat 253, ML 1949, sec 332a), which provides that the effective date of all retirements of federal personnel shall be the first day of the month following the month in which said retirement would otherwise have become effective, it is clear that the warrant officer's active duty status continued in effect through 31 December 1952, and his transfer to the retired list, pursuant to the Secretary of the Navy's approval of the physical disability retirement proceedings on 9 December 1952 would not in any event, have become legally effective until 1 January 1953. Hence, the cancelation by the Secretary on 31 December 1952 of his prior approval must be viewed as having effectively set aside and therefore extinguished the basis on which the warrant officer's prospective retired status was predicated. In other words, on 1 January 1953, there was not then in effect a valid retirement determination by the Secretary and hence the warrant officer did not legally acquire a retired status on that date. Therefore, his active duty status remained in effect until 1 March 1953, the date his retired status became legally effective pursuant to the Secretary of the Navy's approval, on 24 February 1953, of the physical disability retirement proceedings. Accordingly, the warrant officer is entitled to active duty pay and allowances for the period 1 January 1953 to 28 February 1953, inclusive. MS Comp Gen B-114909, 32 Comp Gen 558. 19 June 1953.

§ 1.15. Withdrawal of application for retirement.

A Regular Army Colonel, entered military service as a cadet at

the Military Academy in 1899. He graduated in 1903 and served continuously as a commissioned officer until 31 January 1942. In September 1941, he requested retirement under the provisions of sec 1 of the Act of June 30, 1882, 22 Stat 117, ML 1949, sec 326, which provide for retirement on continuous service of over forty years. The Chief of Staff issued retirement orders effective 31 December 1941 which were later amended to show an effective date of 31 January 1942. The orders were issued by direction of the President and signed by order of the Secretary of War. After the opening of hostilities in 1941, the officer requested withdrawal of his application for retirement and revocation of his retirement orders. Subsequently, the Chief of Cavalry, the branch of the Army in which the officer had served, informed the officer that he had been assured by the Adjutant General that the retirement orders would be revoked. Still later, he was informed by the Assistant Adjutant General that he had been instructed to revoke the retirement orders and that such orders would be issued when the Army had a specific duty assignment. However, the orders never were revoked and on 15 January 1942, the Adjutant General informed the officer that he should comply with his existing retirement orders and that there was no suitable vacancy and that he would be recalled to active duty if needed. Consequently the officer's retirement became effective on 31 January 1942 and he has since been paid retirement pay. He brought an action to recover the difference in pay between that actually received by him as a retired officer and that which he would have received had he remained on active duty until the date of compulsory retirement.

Held that:

since the officer's application for retirement had been accepted by the Secretary of War acting at the direction of the President, his retirement orders could be revoked only by appropriate action of these same officials.

the contention that if the orders were not revoked they never became effective because prior to their effective date he had notified the War Department that he desired to withdraw his application for retirement cannot be accepted. His request for retirement had been granted and appropriate and necessary steps had been taken by the War Department in order to effectuate the changes which necessarily result when someone steps aside. To permit the officer to cancel those orders would be sanctioning a procedure which, to say the least, would be unorderly. The conclusion cannot be accepted which would permit validly retired officers to void outstanding orders on their own initiative.

- since the officer's service at the Military Academy transpired prior to 1912 his four years of service as a cadet were correctly included in computing his years of service under the 1882 Act. (Citing U. S. v. Morton, 112 US 1, 28 L ed 613, 5 S Ct 1; U. S. v. Watson, 130 US 80, 32 L ed 852, 9 S Ct 430; U. S. v. Noce, 268 US 613, 69 L ed 1116, 45 S Ct 610; 26 Comp Gen 387-390. Distinguishing Hartigan v. U. S., 196 US 169, 49 L ed 434, 25 S Ct 204; and U. S. v. Babbitt, 104 US 767, 26 L ed 921.) Only cadet service