Captain BERNAU. Yes, sir. Mr. FURLOW. As I understand it, your home is in Chicago? Mr. FURLOW. Personally, I would like to see these affidavits you have at the hotel. Mr. WURZBACH. Are the records here-the court-martial proceedings? Captain BERNAU. I have them; yes, sir. Mr. WURZBACH. I have so much to do, but I would like to read the court-martial proceedings. Mr. FURLOW. It is a very important case and I would like to meet with the chairman and go over these affidavits. Mr. WAINWRIGHT. I would not be so interested in the court-martial proceedings as I would be in the report of the board of review and the Judge Advocate General upon which the recommendation for the approval of the findings of the court was made. In other words, do I understand what the committee wants is the complete record of the War Department in this case? Mr. WURZBACH. I think so. Mr. FURLOW. I make a motion that the chairman request that record. Mr. WAINWRIGHT. These cases are very carefully reviewed in the Judge Advocate General's Office and the review is in the nature of findings on appeal, reviewing all the evidence. We will ask the War Department to give us a complete record on this case. I do not think there is anything further we can do in this case this morning, Captain Bernau. Mr. FURLOW. I think the clerk should notify Captain Bernau as soon as the committee has had an opportunity to review the records called for from the War Department. Mr. WAINWRIGHT. The committee will now take up H. R. 4844, introduced by Mr. Evans, of California, for the relief of Maj. Clarence E. Lauderdale: A BILL To advance Major Clarence Edward Lauderdale on the retired list of the Army Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Major Clarence Edward Lauderdale, United States Army, retired, is hereby advanced to the grade of colonel, United States Army, retired, with rank, pay, and allowances to date from December 10, 1921; and that any pay otherwise due but heretofore withheld by reason of a construction of any statutes inconsistent with those foregoing shall be considered due and payable. Mr. WAINWRIGHT. Has there been any report from the War Department on this bill? Mr. EVANS. I do not think so. Mr. WAINWRIGHT. There is not a report from the War Department, but nevertheless we will be glad to hear the statement of the gentleman from California. STATEMENT OF HON. W. E. EVANS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. EVANS. Maj. Clarence E. Lauderdale, of the Regular Army, was retired on March 27, 1917. At the time of his retirement he would have been entitled to promotion to the grade of colonel with an additional six months and nine days service on the active list. On June 4, 1920, an act was passed by Congress allowing or, rather, authorizing promotions of men on the retired list by adding the period of time they might have served in active service upon being called back into active service, to the time that they had under previous service, or up to the time of their retirement. Mr. FURLOW. Commissioned service? Mr. EVANS. Yes. Now, he was called back into active service on June 22, 1921, by direction of the President, and served an additional six months and nine days, and still more time, in active service. Under the act of June 4, 1920, he should have been entitled to promotion as colonel because he had served the required six months and nine days. I mention that exact time because that was the amount of time required to be added to his former service to entitle him to promotion. But for some reason or other there has been some disagreement as to the construction of that question in the law and there have been conflicting opinions rendered by officials of the various departments regarding it. Mr. FURLOW. He is still in the service, is he? Mr. FURLOW. When was he retired? Mr. EVANS. He was retired originally on March 27, 1917. Mr. FURLOW. Then you say he was Mr. EVANS. He was then called back into service. At the time of his retirement he was a captain and he was promoted to the rank of major some time after his retirement. Mr. WAINWRIGHT. Promoted to the rank of major? How could that happen? Mr. EVANS. I don't know. Mr. FURLOW. I think, Mr. Evans, he was promoted after he came back, while he was in active service. Mr. EVANS. Yes; that is my understanding of it. Mr. FURLOW. And now he feels, on account of having served an additional length of time, he is entitled to the rank of colonel; that when they were taken back into the service it was anticipated they would be given a rank higher than they Mr. WAINWRIGHT. Than they had at the time of retirement. Mr. FURLOW. Than they had at the time of retirement, yes; in order to take care of those officers who were emergency officers and were not entitled to a higher pay figure, because of their not having had much active service. Now, that was taken into consideration when they came back into the service under the act of June 4, 1920, I think I do not remember what act it was-and it seems that was done in this particular case, because when he was taken back he was made a major, and he was only a captain when he was retired originally. Mr. EVANS. That is probably true, Mr. Furlow; I do not know those minor details. Mr. FURLOW. And he thinks now he ought to have the rank of colonel on account of his commissioned service; but it is a fact, as I understand it, he was given a higher rank as a matter of gratitude, as was done in the case of all emergency officers. Mr. EVANS. But that could have benefited him for only a short time. He only had six months and nine days to serve when he was first retired. Mr. WAINWRIGHT. Well, this seems to be a matter of construction of the law based upon the exact facts in the case. Why hasn't it been possible to get some judicial decision? Mr. EVANS. He has had it up. There was first a decision in his favor, and then it was reversed. Mr. WAINWRIGHT. By the Judge Advocate Genera!? Mr. EVANS. I think so. I would like to put in the record his statement which I have here. It is somewhat more comprehensive than I am able to state it. Mr. WAINWRIGHT. Very well. Mr. EVANS. This is his statement: The advancement in grade of all retired officers of the Regular Army for active duty performed subsequent to retirement under the provisions of the act of June 4, 1920 (41 Stat. 759-86), was made by the War Department under and according to the following rule: "To give effect to the plain mandate of the statute, the officers' right to promotion must be determined as follows: To the date of retirement add the period of time spent on active duty since retirement and then ascertain the grade the officer would have attained on the resultant date." Following this procedure, to the date of my retirement, March 27, 1927, should be added the period of 6 months and 9 days making a date of October 6, 1917. On this date, October 6, 1917, had I remained on the active list and not been retired, I would have attained in due course of promotion the grade of colonel, Dental Corps. This fact is evidenced and substantiated by the records of the War Department (see p. 18 of case). It is further substantiated by the fact that the officer of my corps just senior to me, and the officer of my corps just junior to me at the time of my retirement, were recommissioned in the grade of colonel, Dental Corps, to date from October 6, 1917. It is conceded by the War Department and also conceded by the General Accounting Office, that, six months and nine days after I was placed on active duty, in fact on December 10, 1921, I was entitled to promotion in grade. The only question involved was the particular grade to what I was entitled. This six months and nine days is the period of time from the date of my retirement, March 27, 1917, to the passage of the act of October 6, 1917 (40 Stat. 397). This being conceded by those with authority to issue a decision on the merits of my case, it follows that I must be allowed to benefit by the act of October 6, 1917. Had I remained on the active list, in effect, had I not been retired, Í would have been recommissioned in the grade of colonel, Dental Corps, to date from October 6, 1917, just six months and nine days from the date that I was placed on the retired list. Under the provisions of the act of October 6, 1917, had I remained on the active list, I could not have been commissioned or recommissioned in any other grade than that of colonel, Dental Corps, I would have been recommissioned in the grade of colonel or been separated from the service. The law states: "if he had remained on the active list"-in effect, if he had not been retired. Had I remained on the active list I would unquestionably have been "then in active service" and as such entitled to recommission in the grade of colonel, Dental Corps. I would have been actually in the status above mentioned had I not been retired, and such being the case, it would seem that I can be "constructively in such a status" on the date of October 6, 1917. The law is plain and couched in words that are rather difficult to misconstrue. No mention is made in the statutes of promotion by recommission, nor of promotion by seniority, nor of promotion under previous or subsequent statutes, nor of any changed system of promotion, nor of any system to retard promotion. Simply and clearly the statute says: 'Shall receive the rank, pay, and allowances of the grade, not above that of colonel that he would have attained in due course of promotion if he had remained on the active list * * When it is conceded that I am entitled to benefit by legislation passed subsequent to my retirement, which is evidenced by the fact that I was promoted to the grade of major on March 26, 1925, under one of the promotion provisions of the act of June 4, 1920, why am I to be denied the benefits of the promotion authorized by the act of October 6, 1917, passed just six months and nine days after I was placed on the retired list? The manifest intention of the Congress of the United States when passing the act of June 4, 1920 (41 Stat. 759-86), was to allow a retired officer to benefit by the promotion that accrued to officers on the active list when the total active service of such a retired officer both before and after retirement was equal to the active service of the officer on the active list, in his branch of the service, who was just junior to the retired officer at the time of his retirement. Furthermore, the Congress was fully aware of all previous legislation that had been passed in reference to promotion, naturally including the act of October 6, 1917, which provided for grades up to and including that of colonel for the members of the Dental Corps. The dental officer just junior to me at the time of my retirement was F. F. Wing, who was recommissioned in the grade of colonel, Dental Corps, to date from October 6, 1917, under the provisions of the act of October 6, 1907, just six months and nine days subsequent to my retirement. It naturally follows that, under the provisions of the statutes, when I had completed six months and nine days of active duty, I was entitled to "receive the rank, pay, and allowances of the grade, not above that of colonel, that he would have attained in due course of promotion if he had remained on that active list *" the grade in my case being that of colonel. * * CLARENCE E. LAUDERDALE. Mr. EVANS. I understand it is the uniform policy of the committee to send these bills to the War Department for comment, and I should very much appreciate it if the papers that I file with the committeenamely, the statement of Captain Lauderdale might be transmitted to the War Department to be considered in connection with other information they may have. Mr. WAINWRIGHT. Without objection, that course will be pursued. The clerk will advise you when the comment on your bill is received from the War Department. Mr. FURLOW. Mr. Kendall can not be here to-day and he asked me if I would handle this case for him. This is H. R. 7409, introduced by Mr. Kendall, to authorize the appointment of Capt. John J. Campbell, resigned, to the grade of captain, retired, in the United States Army: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President be, and he is hereby, authorized to appoint and commission John J. Campbell, formerly chaplain in the regular service, United States Army, resigned, to the grade of captain, United States Army, retired, because of disability incurred in line of duty, said grade being effective as of July 3, 1924, the date of his resignation, with the retired pay of captain. Hon. JOHN M. MORIN, Chairman Committee on Military Affairs, WAR DEPARTMENT, Washington, December 30, 1927. House of Representatives. DEAR MR. MORIN: In compliance with your request of December 19, 1927, I am pleased to submit the following report on H. R. 7409, a bill to authorize the appointment of Capt. John J. Campbell, resigned, to the grade of captain, retired, in the United States Army. The proposed legislation would authorize the President to appoint John J. Campbell, formerly chaplain in the Regular Army, resigned, to the grade of captain, United States Army, retired, because of disability in line of duty, said grade being effective as of July 3, 1924, the date of his resignation, with the retired pay of captain. The record of service of the beneficiary of H. R. 7409 is briefly as follows: Born in Pennsylvania, July 13, 1877; served as chaplain, Texas National Guard, in Federal service from May 18, 1916, to March 26, 1917, and from March 31, 1917, to September 29, 1920; appointed chaplain in the Regular Army with the rank of first lieutenant, July 1, 1920; accepted September 30, 1920; promoted to chaplain with the rank of captain April 6, 1922; resigned July 3, 1924. The law pertaining to retirement for disability incident to the service is found in section 1251, Revised Statutes, which provides that "When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of the service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers." The records show that on the date of his resignation, July 3, 1924, Chaplain Campbell submitted a written statement to the effect that the bones in his right foot were in a tubercular condition, for which he waived claims, preferring to resign and have private treatment. On June 19, 1924, a special order was issued by the War Department relieving Chaplain Campbell from duty in the Panama Canal Department, and directing him to proceed to Washington, D. C., via New York, and report in person to the commanding officer Walter Reed General Hospital for observation and treatment. Chaplain Campbell left Panama June 23, 1924, arrived in Washington, D. C., July 3, 1924, and immediately submitted his resignation. The resignation was accepted by the President July 3, 1924, and upon being notified to that effect, he immediately left the War Department. He did not report to Walter Reed General Hospital for observation and treatment, nor did he present himself for the usual medical examination given officers upon their separation from the service. The records do not show that the beneficiary of the proposed legislation applied for retirement prior to his resignation, nor do they indicate that he had any disability which would permanently incapacitate him for the performance of active duty. In general, it has been the attitude of the War Department that voluntary resignation of an officer for his own convenience completely separates him from the service, and absolves the Government of any responsibility for physical disability that may later develop while he is in civil life. Iu this case, the officer declined to submit to a physical examination upon his resignation, preferring to have private treatment after his separation from the service. Further, to enact the proposed legislation would constitute preferential treatment of an individual of a class to the prejudice of others of that classs who may be equally deserving of such treatment. The War Department can not consistently express its approval of this bill, and accordingly recommends that it be not favorably considered by your committee and be not enacted into law. Any further information on this subject which your committee may desire will be gladly furnished. Sincerely yours, DWIGHT L. DAVIS, Secretary of War. Mr. FURLOW. I have not gone over the bill thoroughly Mr. WAINWRIGHT. Well what are the facts? Mr. FURLOW. Well, Father Campbell was a captain in the Regular Army. He retired from the service, as I understand it, at his own request. Mr. WAINWRIGHT. Resigned? Mr. FURLOW. He resigned, at his own request. Mr. WAINWRIGHT. When? Mr. FURLOW. July 3, 1924. At the time of his resignation, the War Department states he submitted a written statement that the bones in his right foot were in a tubercular condition and, at his own request, he was released from the service and now seeks reinstatement. I think Father Campbell himself can give us, very briefly, the facts and details concerning the bill and the merits of his request. Mr. WAINWRIGHT. Will you proceed, Father Campbell? STATEMENT OF FATHER JOHN J. CAMPBELL Father CAMPBELL. I was sent to Panama in 1923, and while down there, after an attack of malaria fever, I developed some condition in the foot which the doctors said was tuberculosis and ordered me to the Walter Reed Hospital-and when I came back here I did not want any more hospital. I had had three months in the hospital and I came to Walter Reed on crutches. And I had been advised |