standing the fact that his discharge was granted to enable him to accept commission under act of March 2, 1899. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, Washington, March 16, 1901. Col. G. W. BAIRD, through Paymaster General, U. S. Army. SIR: I am in receipt of your letter of January 22, 1900, as follows: I have the honor to transmit herewith claim for final pay in the case of Capt. Frederick T. Leigh, 3d Company, U. S. Volunteer Signal Corps. The items of the account are as follows: Salary, April 1 to 24, 1899. Two months' extra pay under acts of January 12 and March 3. Commutation of quarters, April 1 to 24, 1899, while acting as chief signal officer, Department of Santiago, Cuba, three rooms at $12.00 a month each Travel-pay, Santiago de Cuba to New York City, 1,512 miles, 75.6 days at $2,000 per annum. Accepted his commission June 7, 1898, at New York City. $133.33 333.33 28.80 420.00 $915.46 Captain Leigh certifies that Special Orders, No. 87, Adjutant General's Office, 1899, the order mustering him out, did not reach him until April 24, 1899, and that he performed the duties of chief signal officer, Department of Santiago, up to and including April 24, 1899. I respectfully ask if the account is payable as a whole. If not, what items are payable. I inclose herewith the required certificates of nonindebtedness and the orders to substantiate the claim of Captain Leigh. The items will be considered in the order stated. Captain Leigh accepted his commission June 7, 1898, at New York City, N. Y., and was discharged at Santiago, Cuba, by the following order: HEADQUARTERS OF THE ARMY, ADJUTANT GENERAL'S OFFICE, Washington, April 14, 1899. SPECIAL ORDERS, No. 87. } 46. Under instructions from the President, the following-named staff officers are honorably discharged from the Volunteer Army of the United States by the Acting Secretary of War, to take effect April 17, 1899, under the provisions of the acts of Congress approved April 22, 1898, and March 2, 1899, to enable them to accept commissions as volunteer officers under the act last cited: From the indorsement on said order it appears to have been received at the headquarters of the Department of Santiago April 24, 1899, and as Captain Leigh certifies that he continued on duty and did not receive said order or notice thereof until this date, it will be taken as the date he was notified of his discharge. (See 2 Comp. Dig. of Dec., secs. 923 and 992.) The discharge of an officer of the Army does not take effect so as to relieve the Government from its obligation to him until he is notified of the fact and is actually discharged from the service. While he is retained in service without his fault in ignorance of an order which dismisses him, he is to all intents and purposes so far an officer of the Army as to be entitled to all compensation and emoluments of the officer. (Gould v. United States, 19 C. Cls., 593, 595.) This decision does not apply to the case of an officer who is ordered discharged with the organization to which he belongs, and who is not held to further military service or subject to further military control after the discharge of his organization. (See Comp. Dec. of Mar. 7, 1901, in the case of Fred B. Thorndike; also of Mar. 9, 1901, in the case of Wm. Van Name.) But as Captain Leigh was not ordered discharged with the organization to which he belonged, and was ignorant of his discharge until April 24, 1899, his discharge did not take effect under the rule stated until this date. He is therefore entitled to the pay claimed. It is assumed from the statements and orders furnished that he was on duty without troops at a station where there were no public quarters, and that none were furnished him, and if this appears from an examination of his previous accounts for service under his assignment to duty at this station the item for commutation of quarters should be paid. (See A. R., 1895, par. 1336.) He was not entitled to extra pay under the act of January 12, 1899 (30 Stat.. 784), or the act of March 3, 1899 (30 Stat., 1073). See 5 Comp. Dec., 637, 639; 6 Comp. Dec., 233, 236.) He is, however, entitled under his service as stated to extra pay under the act of May 26, 1900 (31 Stat., 217). He was entitled to his discharge as a matter of right on account of the close of the war with Spain at the time it was granted, and he is therefore entitled to extra pay and traveling allowances notwithstanding the fact that his discharge appears to have been granted to enable him to accept a commission as a volunteer officer under the act of March 2, 1899. Having accepted a commission under the act of May 18, 1898 (30 Stat., 417), which provided for service during the existing war, he is considered as having accepted his commission for the war only, and was entitled to his discharge at the close thereof (6 Comp, Dec., 665, 666). He appears to have otherwise fulfilled the conditions of the laws granting extra pay, and this item may be paid. As this officer was entitled to his discharge at the date it was given he is therefore under section 1289, Revised Statutes, and amendments thereof entitled to transportation from the place of his discharge to the place he accepted his commission, and unless he was furnished transportation in kind to such place, or was tendered the same, he should be paid travel-pay as provided in section 1289, Revised Statutes, supra. As it does not appear from the vouchers and papers submitted whether he used transportation in kind furnished by the Government or whether the same was tendered to him within a reasonable time after his discharge, these facts should be ascertained by you before payment is made (5 Comp. Dec., 113; 6 Comp. Dec., 26; id., 660, 662). All inclosures are herewith returned. R. J. TRACEWELL, Comptroller. IX.A soldier discharged from the Regular Army to accept a commission in the Volunteers, who reenlisted within three months after his muster out of the volunteer service, is "entitled to count all service as an enlisted man as continuous service; but can not count time served as a commissioned officer in computing further increase of pay, or in computing thirty years' service for retirement." TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, To the Honorable the SECRETARY OF WAR. I have the honor to submit the following case and request decision thereon: Andrew J. Smith served continuously as an enlisted man in Company B, 25th U. S. Infantry, from December 27, 1875, to September 9, 1898, on which date he was discharged to accept a commission as 2d lieutenant in the 8th U. S. Volunteer Infantry. He was mustered in as such September 10, and served with said regiment until March 6, 1899, when he was mustered out with his regiment. On March 9, 1899, he again enlisted in the 25th Infantry. Information is desired whether in view of his continuous service as an enlisted man and as a commissioned officer, he will now be entitled (1) to pay for over twenty years' continuous service; (2) to count the time served as a commissioned officer in computing further increase of pay, and (3) whether the time served as a commissioned officer can be included in the computation of thirty years' service for purposes of retirement as an enlisted man. By authority of the Secretary of War. The order by which Smith was discharged is as follows: SPECIAL ORDERS, No. 181. * WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE, Washington, August 3, 1898. 42. The following-named enlisted men of the 25th Infantry now at Santiago, Cuba, will be sent to Fort Thomas, Ky., and will report upon their arrival to the commanding officer, 8th U. S. Volunteer Infantry, to receive commissions: First Sergt. Andrew J. Smith, Company B. They will be discharged the service of the United States by the commanding officer of the 25th Infantry on the day prior to the date of their acceptance of the commissions. The first question to be considered is, Was the discharge issued in this case such a discharge as required reenlistment within three months from its date in order to come within the meaning of sections 1282 and 1284 of the Revised Statutes as amended by the act of August 1, 1894 (28 Stat., 216)? Section 2 of the act of April 22, 1898 (30 Stat., 361), reads as follows: Provided, That in time of war the Army shall consist of two branches which shall be designated, respectively, as the Regular Army and the Volunteer Army of the United States. Section 12 of the same act provides: That all officers and enlisted men of the Volunteer Army, and of the militia of the States when in the service of the United States, shall be in all respects on the same footing as to pay, allowances, and pensions as that of officers and enlisted men of corresponding grades in the Regular Army. Under these statutes the same laws apply to regular and volunteer soldiers as to increase of pay for length of service and reenlistment. Since August 1, 1894, enlistment in the Regular Army is required to be made for three years, and to be entitled to the benefits of sections 1282 and 1284 a soldier must be honorably discharged and reenlist within three months from the date of such discharge. (See act of August 1, 1894, 28 Stat., 216; Webb e. United States, 23 Ct. Cl., 58, 60.) At the time of the passage of this act there was no Volunteer Army and the conditions which might arise from the organization of a Volunteer Army do not appear to have been directly provided for, but when the occasion arose for organizing such an army Congress specifically provided that said Volunteer Army should be a part of the Army of the United States and on the same footing as to pay and allowances as the Regular Army. Congress evidently intended that the same laws should govern as to both services so far as it did not make specific provision to the contrary. The discharge of an enlisted man in the Regular Army to enable him to accept an appointment as a commissioned officer in the Volunteer Army was not such a discharge as was contemplated in sections 1282 and 1284 as affecting his reenlistment, not at least until his service terminated by being mustered out of the volunteer organization to which he was attached. The discharge contemplated in these sections was evidently a complete severance from the service; a changing of his status to that of a civilian; leaving the service and a reentry thereof by reenlistment; a discharge made necessary by the expiration of the term of his enlistment, or for other reasons justifying a release from his contract of enlistment and a separation from the service. An arrangement by which an officer or enlisted man is transferred from one brauch of the service to another without any intended break or cessation of his service is not a discharge within the meaning of sections 1282 and 1284, (United States v. Merrill, 8 Wall,, 614; United States v. Alger, 151 U. S., 362; United States . Thornton, 160 U. S., 654, 658.) In the case of the United States v. Thornton, supra, the Supreme Court said: Bounties to private soldiers, in the form of increased pay after five years' service, are allowed by Revised Statutes, sections 1282 and 1284, to those who reenlist within one month (since extended to three months, act of August 1, 1894, c. 179, sec. 3, 28 Stat., 215, 216) after having been honorably discharged. This would seem to indicate an intention on the part of Congress to regard a reenlistment within thirty days as practically a continuous service for the purpose of additional pay, though not necessarily so for the purpose of transportation and subsistence. Reenlistment is therefore but a renewal of the contract of enlistment within the time prescribed by the statute. The Court of Claims in speaking of the additional pay that a soldier may earn by reenlisting says: This addition of $2 per month does not depend upon mere length of service, but upon two other conditions: First, an honorable discharge; second, a voluntary reenlistment. It is intended primarily to be an inducement to the prompt reenlistment of an honorably discharged soldier, and it can be earned in no other way. (Webb v. United States, 23 Ct. Čl., 58, 60.) It is a condition precedent and must be performed within the time specified before the additional pay can be earned. The condition requiring performance can only exist while the soldier is out of the Army. During the time he is in the Army either as an officer or as an enlisted man the statute does not run. If an enlisted man in the Regular Army is promoted and appointed a commissioned officer in the Regular Army this statute certainly would not run against him as an enlisted man while serving as such officer. If he should resign as a commissioned officer the statute would begin to run at that time, and unless he reenlisted within the time prescribed he would not be entitled to additional pay. Again, if an enlisted man was discharged at the end of his enlistment or under such circumstances as showed an intention of leaving the service and was subsequently appointed a commissioned officer under such circumstances as to show no connection with his prior service as an enlisted man this statute would run against him. The service must be continuous and there must be no break between his service as an enlisted man and a commissioned officer or this statute will run against him as an enlisted man from the date of his discharge from such service. If the statute begins to run it will continue to run notwithstanding his subsequent service as a commissioned officer. In this case Smith was not discharged within the meaning of the statute requiring a reenlistment within three months until he was mustered out of the Volunteer Army, and as he reenlisted within three months from the time he was so mustered out his service as an enlisted man should be counted as continuous. He can not, however, count that period of his service as a commissioned officer in determining the length of his service as an enlisted man for the reason that only actual service as an enlisted man can be counted in making up this period. He did not lose his right to reenlistment pay by reason of his service but he was not put in any better position as to length of service as an enlisted man by reason thereof. The effect of the service was simply to suspend the running of the statute as to reenlistment during its continuance. This construction is in harmony with the general purpose of the statute as applied to the changed conditions which arose from the organization of the Volunteer Army and is within the spirit if not within the strict letter of the law. The act putting volunteer soldiers on the same footing as regulars as to pay and allowances requires that the statutes relative to pay and allowances should be so construed as to give equal benefits for service in each branch of the Army. It is therefore held: (1) Andrew J. Smith is entitled to count all service as an enlisted man since December 27, 1875, as continuous service; (2) he can not count the time served as a commissioned officer in computing a further increase of pay; (3) under the act of September 30, 1890 (26 Stat., 504), he is not entitled to count the time served as a commissioned officer in computing the period of the thirty years' service required as an enlisted man. Respectfully, R. J. TRACEWELL, Comptroller. X..Chaplains are entitled to rank, pay, and allowances of a captain of infantry, and can not draw mounted pay on certificate of Secretary of War or department commander that duty required them to be mounted. The law requires that necessary means of transportation be furnished by the Quartermaster's Department for service in the field. TREASURY DEPARTMENT, OFFICE OF THE COMPTROLLER OF THE TREASURY, The Honorable the SECRETARY OF WAR. SIR: By your direction I have received a letter from the Paymaster General, dated April 5, 1901, inclosing the pay account of S. H. Bell, chaplain, 7th U. S. |