TOUR OF DUTY 646. In reference to the act of March 4, 1915 (38 Stat. 1078), providing that no officer or enlisted man of the Army shall, except upon his own request, be required to serve in a single tour of duty for more than two years in the Philippine Islands. Held, That leaves of absence spent in the Philippine Islands by an officer serving there should not be omitted in reckoning the length of his tour of duty, but that any time during which he is absent from the islands, from whatever cause, may properly be excluded. 92-400, Oct. 4, 1915. The act of March 4, 1915 (38 Stat. 1078), provides that no officer or enlisted man of the Army shall, except upon his own request, be required to serve in a single tour of duty for more than two years in the Philippine Islands nor more than three years in the Panama Canal Zone, except in case of insurrection or actual or threatened hostilities. Held, That if a tour of duty is extended at the request of an officer or enlisted man, he may be required to serve the full period extended. 6-160, Jan. 28, 1916. The provision in the act of March 4, 1915 (38 Stat. 1078), that no officer or enlisted man of the Army shall, except upon his own request, be required to serve in a single tour of duty for more than two years in the Philippine Islands nor more than three years in the Panama Canal Zone, except in case of hostilities, is applicable to all Porto Ricans in the Army serving in the Panama Canal Department, including members of the Porto Rican Regiment, which at the time of the passage of the act referred to was a part of the United States Army and available for service outside of Porto Rico. 220.32, Jan 15, 1925. Secs. TRANSFER 647. COMMISSIONED OFFICERS. 648. NATIONAL GUARD IN FEDERAL SERVICE COMMISSIONED OFFICERS 647. A second lieutenant, C. A. C., appointed under section 24, act of June 4, 1920, was transferred at his own request to the Air Service in November, 1920. He was found professionally disqualified for pilot training in February, 1921, and directed to make application for transfer to another branch of the service. The question presented is whether he may be transferred without his consent in view of the provisions of section 4e of the act of June 4, 1920, "that no officer shall be transferred from one branch of the service to another under the provisions of this section without his consent." Held, That by the terms of section 4c of the act the consent of an officer to his transfer is requisite only to transfers under the specific provisions of that section, and it thereby excludes from its operation any other transfers. The transfer in this case is not made “under the provisions of" that section, but because under the provisions of section 13a of the act of June 4. 1920, having failed to qualify as an aircraft pilot, this officer may no longer remain on duty in the Air Service. While section 13a does not specifically direct the transfer of such an officer to another branch, the result of his disqualification under that section is that either he must be transferred to another branch of the service or sever his connection with the military service. His transfer results because of the mandatory provisions of section 13a that he can not longer remain in the Air Service, and not under or because of the provisions of section 4c. Section 24d, providing that "upon his own application any officer may be transferred to another branch * *," does not apply in this case, but only applies to and provides for voluntary transfer, and does not apply to transfers made necessary because of disqualification for service in the branch in which the officer holds his commission. Therefore, being disqualified from further duty in the Air Service, he may, as a matter of law-since there is no statutory inhibition against it-be transferred to some other branch of the service with or without his consent. 210.33, Oct. 7, 1921. Officer of Medical Administrative Corps applied for transfer therefrom to Quartermaster Corps, relying on section 24d of act of June 4, 1920 (41 Stat. 759), which provides: "Upon his own application any officer may be transferred to another branch without loss of rank or change of place on the promotion list." 1. The word "any" as above used can not be correctly read as "all." Said clause relates only to those officers who are eligible for transfer from one branch of the Army to another by virtue of commissions held by them in those branches of the Army where promotions are unlimited. In the Medical Administrative Corps there can be no promotion above the grade of captain. (Sec. 10, same act.) The clause quoted does not warrant the transfer of an officer from a branch or corps of the Army, the names of whose officers are not carried on the promotion list, when the statute has placed a promotional limitation upon the former or the qualifications for holding an office in the same, as a rule, are not equivalent to those of the latter. 2. If there is a vacancy in an existing office created by law, of course the President, under his constitutional prerogatives, may in his discretion and with the consent of the Senate appoint one to fill such vacancy. 210.33, Jan. 23, 1922. On the question whether an officer commissioned in one branch may be transferred to another without his consent, it was Held, That section 24d, National Defense Act, as amended by act of June 4, 1920, providing for transfer of an officer "on his own application," by implication forbids such transfer without his consent. Moreover, under existing law such a transfer could not be consummated without the officer's consent for the reason that it involves a new appointment requiring his acceptance. The omission in the Army Appropriation Act of June 30, 1922 (42 Stat. 723), which partially reenacted section 4c of the National Defense Act, as amended, of the provision in the latter prohibiting transfer of officers from one branch to another under that section without their consent, did not operate to repeal this provision, which remains in full force and effect. It follows that there is no authority to transfer the officer in question to any other branch except upon his own application for such transfer, as provided in section 24d, National Defense Act, as amended. 210.33, Oct. 15, 1926. NATIONAL GUARD IN FEDERAL SERVICE 648. The question was presented whether the State authorities may legally transfer enlisted men from a militia or National Guard organization after such organization has been selected for Federal service by the Governor of the State pursuant to the call of the President. Held, That after the President's call is transmitted to a militia or National Guard organization there is established a relation between the United States and all members of such organization and a duty under Federal law on the part of such members to appear for muster, and that State authorities could terpose to break or impair that relation or to relieve the members of their 58-100, Oct. 3, 1916. Tynder the statute. WITNESSES, CIVIL COURTS 443. CIVIL SUITS. 150. CRIMINAL TRIALS. CIVIL SUITS €49. Request is made by the Attorney General to be permitted to use a ntary prisoner in a civil trial in the district court of the United States. Compliance with such request should be made whenever possible and not otherwise to the detriment of the military service. 013.2, Aug. 16, 1919. The attorney for plaintiff in a divorce action requests that a military order be ced to bring a soldier, the defendant, from his station to the place of trial to appear therein. Held, That such order could not issue to require soldiers to appear as witnesses, but that they might be allowed to attend the court (Dig. Op. J. A. G., 1912, p. 221) ; that a member of the American Expeditionary Forces would not be returned in order that civil process might be served on him in a divorce proceeding instituted by his wife, and that the War Department has no jurisdiction in regard to the domestic relations of soldiers, unless involving violations of the Articles of War, in which case they might be tried by court-martial. It follows that a military order could not properly issue for the purposes herein suggested, 014.13, Aug. 30, 1919. CRIMINAL TRIALS 650. In securing attendance of witnesses at the trial of criminal cases the War Department should render to the Department of Justice every assistance consistent with the interests of the military service. When a member of the Military Establishment is served with a summons to appear as a witness for the Government, he should, after consulting his commanding officer, obey the summons, unless in the opinion of the commanding officer the interests of the military service would be prejudiced thereby. But it would be proper military policy to decline to detain in the United States any member of the military forces merely in order that he might be available as a witness. Similarly it would be prejudicial to the military interests to order home members of the American Expeditionary Forces to enable them to testify in a murder case now pending in a State criminal court, even though a refusal to return such soldiers to the United States may serve to delay the trial of the case until the war is ended. 013.26, Jan. 2, 1918; Feb. 1, 1918. If a soldier is in the United States when desired as a witness by a United States attorney, and is served with a summons to appear, he should be permitted to obey the same unless in the opinion of his commanding officer the military service would be prejudiced by his so doing. It would not be proper military policy, however, to detain him from foreign service in order that he may be available as a witness. 013.2, Sept. 16, 1918. 651-660. GENERAL REQUIREMENTS. 661-662. COLLATERAL IN LIEU OF SURETY. 663-664. EXECUTION. 665-676. SURETIES. Secs. GENERAL REQUIREMENTS 651. AGENT OFFICERS. 652. BANKS. 653. BIDDERS. 654-655. CONTRACTORS. 656. GOVERNMENT INSTRUMENTALITIES. 657-658. OFFICERS, QUARTERMASTER CORPS AND FINANCE DEPARTMENT. 659. RESERVE OFFICERS. 660. SURPLUS PROPERTY SALES. AGENT OFFICERS 651. Opinion was requested whether an officer of the Quartermaster Corps who, under the provisions of section 9a, National Defense Act (41 Stat. 766), receives funds from a local finance officer to make specified payments on civilian and enlisted pay rolls that are computed in the office of the finance officer, is required to be bonded. Held, That under R. S. 1191 and act of August 29, 1916 (39 Stat. 626), all officers of the Quartermaster Corps are required to be bonded except such as are relieved from that requirement by the Secretary of War as "not accountable for public funds or public property," and this requirement is not changed in any particular by the provisions of section 9a, National Defense Act, supra. 168, July 26, 1929. BANKS 652. Certain certified checks received by a finance officer as public funds and transmitted by him through the mails to the Treasurer of the United States were not received with the letter of transmittal, and duplicates could not be obtained from the banks without indemnifying bonds. There was no conclusive evidence that these checks were actually inclosed with the letter. Had the letter been sent by registered mail, the Post Office Department would have paid the cost of the bonds required, but this was not done. Held, That there was no authority for payment of the cost of the bonds from public funds, and that the finance officer was responsible for the checks until de posited in the Public Treasury, and was liable for the cost of the indemnifying bonds. 122.1, May 5, 1923. BIDDERS 653. There is no objection to an annual guaranty by bidders who contemplate making proposals from time to time for the repair of vessels that they will execute a formal contract and bond in case of the acceptance of the bid. Such guaranty would not, of course, be sufficient where the total of the contractor's pending bids is so large that the amount of the guaranty becomes inadequate for the Government's protection. After the bid is accepted, a bond must be taken in each instance to secure the performance of the contract. (Act of August 13, 1894, 28 Stat. 278, as amended by act of February 24, 1905, 33 Stat. 812.) 168, Dec. 20, 1922. A surety company had on file with the War Department an annual guaranty covering bids made by a certain corporation. Upon the absorption of this corportion by a new corporation, the surety company requested that bids of the latter be accepted under the guaranty as originally executed. Held, That the individual corporate existence of the old corporation had been extinguished by its absorption by the new corporation, and bids submitted by the latter can not be accepted under a bond in which the principal no longer exists. 168, Aug. 17, 1928. Secs. 654. IN GENERAL. CONTRACTORS 655. PROTECTION OF SUBCONTRACTORS. IN GENERAL 654. Where a contractor for the repair of a steamer did not furnish a bond, as required by the act of February 24, 1905 (33 Stat. 812), but deposited a certified check in lieu thereof and the check was erroneously returned upon the completion of the work, leaving no protection for possible claims of labor and material men, Held, That as a bond in connection with such contracts is required by statute, not only for the protection of the Government but also for the benefit of labor and material men, final payment on the contract should be withheld by the Government until the contractor furnished a bond as is required by the statute in an amount deemed sufficient for the protection of possible claims of labor and material men. 76-221, Sept. 8, 1917. The question being whether the requirement of a bond conditioned for the performance of a contract for the construction of a railroad siding and switch at a Government aviation field may be waived, the contractors (the railroads controlling the only line affording reasonable connection for such a switch) refusing to give the same, Held, That the act of August 13, 1894 (28 Stat. 278), as amended by the act of February 24, 1905 (33 Stat. 812), on which A. R. 572 (par. 9b (1), AR 5-220), is based, is mandatory in requiring a bond on "any public work." The work provided for in the papers in reference is "public work" in contemplation of the statute above referred to, and the requirement of a bond, being statutory, can not be waived; but the penalty of such a bond as prescribed by A. R. 569 (par. 14, AR 5-220), may be diminished as circumstances in each case may seem to require. 168, July 26, 1920. |