an office has not always, nor even generally, been conceded.1 But irrespective of this consideration the legislation does not apply to those whose salaries are less than twenty-five hundred dollars. Cards 1121, March, 1895; 2301, May, 1896; 8126, May, 1900.

2211. Sections 1259 and 1260, Revised Statutes, prescribe that retired officers shall not be assignable to any other duty than at the Soldier's Home and as professors of colleges. This legislation does not prevent them from holding offices outside of the regular army. By Sec. 1223, Rev. Sts., they are precluded from holding diplomatic and consular offices and this is the only existing prohibition. There is no prohibition against their holding commissions in the military forces other than the regular army, whether militia or volunteers, and whether appointed by the President or governors of States. Section 2 of the act of July 31, 1894 (28 Stats. 205), recognizes the legality of appointments of retired officers by the President, by and with the consent of the Senate, and such office may be office in the volunteer force as well as any other branch of the Government, except the regular army. And assuming that a retired officer holds an office within the meaning of this statute, governors of States may appoint them officers of volunteers, provided their annual compensation as retired officers is less than twenty-five hundred dollars, even if it should be held that they do not come within the description of "officers of the regular army' as that term is used in the tenth, eleventh and thirteenth sections of the act of April 22, 1898. Card 4051, April, 1898.

2212. Where an officer did not make the journey to his home under the order retiring him until one year and a half after his retirement, his claim for mileage was disapproved by the Secretary of War June 5, 1890, for the reason that the journey to the place he

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In people v. Duane, 121 N. Y., 367, the Court of Appeals of N. Y. held, in a forcible and elaborate judgment, that a retired officer did not hold an office within the meaning of a statute of that State authorizing the appointment of aqueduct commissioners and providing that "they and their successors shall hold no other Federal, State, or municipal office except the offices of notary public and commissioner of deeds." The question as to whether retired officers hold offices was treated as doubtful by the Attorney General in an opinion as to whether General Sickles, a member of Congress, could receive his pay as a retired officer. 20 Opins., 686; but in this matter Second Comptroller Mansur held in an elaborate decision dated February 24, 1894, that "the place and rank on the retired list held by an officer of the army is a military office under the United States." The following cases treat retired officers as holding offices: Tyler v. U. S., 16 Ct. Cls., 223; U. S. . Tyler, 105 U. S., 244; Wood r. U. S., 15 Ct. Cls., 151, and 107 U. S., 414; Franklin v. U. S., 29 Ct. Cls., 6; Badeau . U. S., 130 U. S., 439; In re Tyler, 18 Ct. Cls., 25; In re Winthrop, 31 id., 35; State v. De Gress, 53 Texas, 387; Case of Major Smith, 19 Opins. At. Gen., 283. See, also, 2 Comp. Dec., 7. Decision of Comptroller in the case of Capt. Geddes, 7 Comp. Dec. (dated February 6, 1901). In the cases of Tyler and Winthrop supra, the Court of Claims held that retired officers of the Army are officers within the meaning of Section 5498, Revised Statutes, which prohibits officers of the United States from acting as agents or attorneys for prosecuting claims against the Government.

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now calls his home at so long a period after the date of his retirement cannot be considered as falling within the rule of giving an officer mileage when retired, to enable him to resume his residence at his home.1 Applying the principle thus established to the case of a retired enlisted man who applied three years after his retirement for the transportation and subsistence which at the time of his retirement he was authorized to receive by G. O. 43, A. G. O., 1889, it was held that he had waived his right to such transportation and subsistence by not availing himself of it within a reasonable time after retirement. Card 2879, March, 1897. See Card 6466, May, 1899.

2213. Held that a retired officer summoned to attend a court martial as a witness is entitled to mileage for the travel involved, and to enable him to obtain the same proper orders should be issued in his case. 28, 291, November, 1888.

2214. There is no provision of law or regulation authorizing the payment of the burial expenses of a retired officer. A. R. 85 (99 of 1901) is limited, in the cases of officers dying at a military post, to those who die "when on duty" there, and therefore does not include retired officers who may die at a military post. Card 3662, November, 1897.

2215. It having been reported that a retired officer, against whom there were pending proceedings for alimony by his wife, was about to leave the United States to avoid the same, held, that it would be legal for the proper military authority to require the officer to remain within the jurisdiction of the civil court in which he had been proceeded against; the object being to protect the service from the disgrace which he would cast upon it by evading his obligations in such a case. Card 5946, March, 1899.

2216. Forage masters and wagon masters employed by the Quartermaster General under Sec. 1137, Rev. Sts., are not "enlisted," and therefore not entitled to be retired under existing law-act of Sept. 30, 1890, c. 1125. 51, 466, January, 1892.

2217. Held that the term "war service" in the proviso of the act of September 30, 1890, c. 1125, relating to the computing of the period of such service with a view to the retirement of enlisted men, included service as a commissioned officer equally with service as an enlisted man. 44, 209, December, 1890.

2218. An enlisted man on the retired list is subject to trial by court martial, and to dishonorable discharge by sentence, if such be adjudged.

1 In this case the Comptroller of the Treasury later held (Vol 4, p. 175) that an officer "retired and ordered to repair to his home should promptly obey the order and should be deemed to have selected the place to which he repairs within a reasonable

time as his home."

But the existing law, in entitling him to be retired if he complies with its conditions, evidently contemplates that he shall remain a pensioner on the bounty of the Government during the remainder of his life, if not forfeiting his claim by serious misconduct. So, held that retired enlisted men could not legally be discharged by executive order under the 4th Article of War, which contemplates soldiers on the active list only. LV, 305, January, 1888.

2219. Held, in the absence of any legislation to the contrary, that retired enlisted men, like retired officers,' might legally be employed, in any department of the Government, as clerks, messengers, watchmen, &c., and receive pay for such employment, while at the same time retaining their positions on the retired list and receiving retired pay. LVI, 144, 493, May and September, 1888.

2220. There is no statute of the United States or regulation of the War Department which prevents a retired enlisted man of the army from accepting an office or employment under either the United States or a State. Held, therefore, that there was no law or regulation of the United States which would prevent a retired enlisted man from organizing and drilling a militia company. Card 3638, November, 1897.

2221. An enlistment contrary to the 50th Article of War, or otherwise fraudulent, is not void but voidable only at the option of the United States. Until thus avoided it is valid and binding on both parties and service under it is valid service. Held, therefore, that time actually served under such enlistment should be counted in computing the thirty years necessary to entitle the soldier to retirement under the provisions of the act of Sept. 30, 1890 (26 Stats. 504). Cards 355, September, 1894; 2022, January, 1896; 7108, October, 1899. 2222. A marine, after serving nine years and six months in the marine corps, deserted therefrom in 1866, and subsequently while thus in desertion served about sixteen years in the army. Held, that if his service in the marine corps during the civil war was "active service" within the meaning of the act of February 14, 1885 (23 Stats., 305), as amended by the act of September 30, 1890 (26 Stats., 504), he would be eligible under said acts for retirement. Card 6693, July, 1899.

2223. The act of May 26, 1900, provides "that hereafter, in computing length of service for retirement, credit shall be given the soldier for double the time of his actual service in Porto Rico, Cuba, or in the Phillipine Islands." Held, that a soldier absent in the United States on sick or ordinary furlough while his company is stationed in Porto Rico, Cuba, or the Phillipine Islands cannot be considered as in "actual service" within the meaning of this statute, in the place where 115 Opins. At. Gen., 306.

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his company is stationed, and he is not therefore, entitled to credit. for double time during the period of such absence.1 Card 8529, June, 1900.

2224. There is no legal objection to granting an enlisted man of the regular army an indefinite furlough to allow him to accept an appointment as an officer in the volunteer army, and having accepted such furlough and appointment, the period of their continuance may legally be counted as part of the thirty years service as an enlisted man, which would entitle him to retirement. Card 8696, August, 1900.

2225. Pay for certificate of merit (two dollars per month), like continuous service pay, has always been held to be a part of the soldier's pay. Being thus a part of the pay of the rank upon which the soldier receiving it may be retired, he is entitled to receive as a retired soldier seventy-five per centum thereof with his current pay. April, 1895.

Card 1308,

2226. Held that a retired soldier may be furnished subsistence in kind instead of the commutation allowances during the time he may be in confinement at a military post under military charges, and either subsistence in kind or full commutation while en route under guard to or from the post. Card 3234, June, 1897.

REVIEWING AUTHORITY.

2227. This term is employed in military parlance to designate the officer whose province and duty it is to take action upon the proceedings of a court martial after the same are terminated, and, when the record is transmitted to him for such action, to approve or disapprove, &c., the sentence. This officer is ordinarily the commander who has convened the court. In his absence, however, or where the command has been otherwise changed, his successor in command, or, in the language of Arts. 104 and 109, "the officer commanding for the time being," is invested (by those articles) with the same authority to pass upon the proceedings and order the execution of the sentence in a case of conviction. XIII, 468, March, 1865.

In cases, however, of sentences of dismissal and of death, imposed in time of peace, and of some death sentences adjudged in time of war, as also of all sentences "respecting general officers," while the convening officer (or his successor) is the original reviewing authority, with the same power to approve or disapprove as in other cases, yet, inasmuch as it is prescribed by Arts. 105, 106, 108 and 109 that the sentence shall not be executed without the confirmation of the President, the latter becomes in these cases the final reviewing officer, when-the

sentence having been approved by the commander (for, if disapproved by him, there is nothing left to be acted upon by the superior)—the record is transmitted to him for his action. A similar division of the reviewing function exists in cases in which sentences are approved, but the execution of the same is suspended, and the question of their execution referred to the President, under Art. 111. The same function is also shared between inferior and superior commanders, under Art. 107, in cases in which sentences are imposed by division or separatebrigade courts.

Where a general court martial is convened directly by the President as Commander-in-chief, he is of course both the original and final reviewing authority.

2228. It is no longer necessary that the findings of a court martial should be expressly approved. Formerly the 104th Article of War prescribed that no sentence of a court martial should be carried into execution until the whole proceedings were approved by the reviewing authority, but now as amended by act of July 27, 1892, it simply requires that the sentence shall be approved by such officer, and this applies as well in cases requiring confirmation of the President as in those that do not. Card 2844, January, 1897.

2229. While approval gives life and operation to the sentence, disapproval, on the other hand, quite nullifies the same. A disapproval of the sentence of a court martial by the legal reviewing authority is not a mere expression of disapprobation, but a final determinate act, putting an end to the proceedings in the particular case and rendering them entirely nugatory and inoperative; and the legal effect of a disapproval is the same whether or not the officer disapproving is authorized finally to confirm the sentence. But to be thus operative, a disapproval should be express. As frequently remarked in the opinions of the Judge-Advocate General, the mere absence of an approval is not a disapproval, nor can a mere reference of the proceedings to a superior without words of approval operate as a disapproval of the sentence.1 The effect of the disapproval, wholly, of a sentence is not merely to annul the same as such but also to prevent the accruing of any disability, forfeiture, &c., which would have been incidental upon an approval. XXVI, 568, June, 1868; XXX, 497, July, 1870; XXXII, 1, December, 1870; L, 121, March, 1886; 60, 36, June, 1893; Card 2195, April, 1896.

See 16 Opins. At. Gen. 312, where it is remarked that it is not a legal disapproval of a conviction or sentence for the original reviewing officer, in forwarding the proceedings for the action of superior authority, to endorse upon the same an opinion to the effect that the finding is not sustained by the evidence.

A disapproval of a sentence by the proper reviewing authority is "tantamount to an acquittal by the court." 13 Ópins. At. Gen. 460.