including rental and subsistence allowances, which he received during said period as captain on the active list with 17 years' active service, and the amount of this pay and allowances to which he would be entitled as an officer entitled to receive the pay and allowances, including rental and subsistence allowances, of the rank of colonel with 17 years' active service. (Report of the General Accounting Office, on file but not printed.) BRIEF THE VIEW THAT RESERVE OFFICERS' TRAINING Corps DUTY IS NOT MILITARY DUTY IN THE FULLEST AND MOST COMPLETE SENSE OF THAT TERM PROCEEDS OUT OF A PATENT MISAPPREHENSION OF THE PLACE OF PRIME IMPORTANCE WHICH THE RESERVE OFFICERS' TRAINING CORPS HAS IN OUR SCHEME OF NATIONAL DEFENSE 1. The Reserve Officers' Training Corps was established by the national defense act of June 3, 1916, as an integral part of our national defense. The national defense act of June 3, 1916 (39 Stat. 166), is generally regarded and with justice, as the greatest piece of military legislation ever enacted by Congress, and the perfecting provisions carried by the amending act of June 4, 1920, are regarded with like esteem. The original national defense act is what its title implies; it laid down for the first time a national military policy, giving us national safety by means which are at once effective and consonant with our form of government and national traditions. It provided for an Army of the United States of the three components: Regular Army, National Guard, and Corps of Reserves, the last being regarded as at least of equal importance with the others. The Reserve, of officers and men, was designed and has been developed as the means of making our great potential of citizens militarily effective, and has been referred to by the Secretary of War as a basic element of this organic legislation which "expresses in the form of a definite sanction a determination to constitute a permanent military policy commensurate with the great potential requirements for national defense and yet thoroughly consistent with national traditions" (Report, 1920). It embodies the citizen-soldier idea. The training of citizens to be officers is a prime element of that idea and the reserve system. The House committee, with which the national defense act originated, stressed the situation: "The war in Europe has demonstrated the necessity of officers." (H. Rept. No. 297, 64th Cong., 1st sess.) To this end the act increased the officers of the Regular Army, the National Guard, and provided for an Officers' Reserve Corps and their training, the committee report, upon this point, saying: * The committee, to meet that situation, have (in addition to the officers of the Regular Army and the National Guard, which amount to at least 16,000 officers now) doubled the number of cadets at West Point." Adding: "Provision is also made for the better military training of young men in all schools and colleges having military instruction and to which Regular Army officers are detailed." And further adding: * * An Officers' Reserve Corps is also provided Besides, the bill provides for 786 additional officers whose duties will be to train the National Guard and to supply the schools and colleges with the necessary number of officers." To carry out the idea of providing trained officers, the act created a Reserve Officers' Training Corps consisting of units at the various educational institutions, authorized the President to detail officers of the Regular Army, active or retired, as professors of military science and tactics on duty with the Reserve Officers' Training Corps to train the members of the corps to become reserve officers, limiting, however, the number of active officers to 300, but providing that retired officers so detailed should receive the full pay and allowances of their grade not above that of major. (Sec. 45, 39 Stat. 192.) 2. And the Reserve Officers' Training Corps, having made good, has been consistently developed ever since. The national defense act was soon to be tested. War broke shortly after its enactment, and proved it sound elementally, including the Reserve Officers' Training Corps. The Reserve Officers' Training Corps was expanded during the war to meet war's urgent need. In the light of war's necessities and the success of this method of educating of Congress passed the more liberal act 110377-28-5 of April 17, 1918 (40 Stat. 531), increasing the number of active officers for this purpose to 1,000 and providing, in order that none but experienced instructors be had, that officers on that duty should have not less than one year commissioned service. War having found the national defense act of June 3, 1916, elementally sound, the post-war reorganization of our system of national defense required, in the main, only a further development of those elements, which was provided in the amended national defense act of June 4, 1920. This act provided for a much fuller development of the entire reserve component, including the Reserve Officers' Training Corps. (See sections 37, 37a, 40, 40a, 40b, 47, 47b, 47c, and 47d, all having to do with that corps.) That corps is now, both legally and in fact, a well-developed prime element of our national defense system, as the act intended it should be and War Department reports show that it actually is. Secretary Baker in his 1920 report stressed the place and necessity of such instruction in "the Army of a democracy." As he so clearly saw it, this contact with the citizenry of our country, through such methods of instruction, "lies at the bottom of the whole plan which the department has matured for a new Army." Secretary Weeks calls the Reserve Officers' Training Corps system an integral part of our "permanent military policy" (Report, 1921). În the same report he says: Specific notice was taken (by the act) of the probable need for placing over 50 per cent of the officers of the combat branches of the Regular Army on duty with the Militia Bureau, the National Guard, the Reserve Officers' Training Corps, and similar assignments, and therefore for properly training officers for such duties." In the same report (p. 13) he refers approvingly to the fact that the Reserve Officers' Training Corps is placed definitely under military administration. Again in that report he says: "The essence of the problem (of national defense) lies in the actual training of young men to fit them to undertake the duties that would be expected of them in time of war, without being subjected to the excessive dangers that confront raw troops. The solution of this problem demands that we have the necessary corps of instructors The duty of supplying a corps of trained instructors, men who can devote their lives to the study of the essentials, necessarily falls upon the Regular Army. The composition of the Regular Army must, therefore, provide for the fulfillment of this major function * * *. There must be a considerable body of officers set free for instructional work with the National Guard, the Reserve Officers' Training Corps, and the training centers for reserves" (p. 21). Further on he says: "The act of June 4, 1920, maintains our traditional policy of providing for a small Regular Army to be augmented by great citizen forces in the event of war (15) * * "The President emphatically indicated that its (this act's) keynote was an insistence upon the establishment and development of this framework in time of peace." In his report of 1922, after adverting to the fact that under this act there is but one Army (17), he refers to the development of officers as the "backbone of our military system" (p. 18). In a special report, forwarded by the Secretary of War to the President, on "The Conference on Training for Citizenship and National Defense," it is said (p. 25): "That inasmuch as military leadership in an emergency is of prime importance, the primary mission and controlling purpose of the Reserve Officers' Training Corps should continue to be, as stated in regulations, 'To provide systematic military training at civil educational institutions for the purpose of qualifying selected students of such institutions for appointment as reserve officers in the military forces of the United States.'" In his 1924 report, the Secretary says: "The life and effectiveness of our entire reserve system and citizen army depend on the Reserve Officers' Training Corps." And he then states that the Reserve Officers' Training Corps produces about 4,000 reserve officers annually. Largely by reason of the Reserve Officers' Training Corps, the national defense act of June 4, 1920, justifies the War Department in its statement that it has entered upon a "new era in the service of this department to the country." (Report, 1921.) II CONGRESS IN THE ORGANIC NATIONAL DEFENSE ACT AS ORIGINALLY ENACTED AND Section 37 provides for the Officers' Reserve Corps as an integral part of the Army (sec. 1), the great reservoir of officers, to which corps in time of war all appointment of officers, except the comparatively few Regulars temporarily promoted, shall be made (sec. 127a). Section 40 provides for establishing and maintaining the Reserve Officers' Training Corps; section 40a provides for its courses and standard of military training; section 47, for its military supplies; section 47a for its practical training; section 47c for its pay and subsistence; section 47b for the appointment of its graduates as reserve officers; and section 37 provides that in time of peace appointments to the combat arms of the Regular Army shall be limited to graduates of the Reserve Officers' Training Corps and certain designated others of military experience. And, then, section 40b provides for Regular Army instruction of this Corps which is to supply the Army with most of its officers, as follows: "Sec. 40b. Personnel for duty with Reserve Officers' Training Corps.--The President is hereby authorized to detail such number of officers, warrant officers, and enlisted men of the Regular Army, either active or retired, as may be necessary for duty as professors of military science and tactics, assistant professors of military science and tactics, and military instructors at educational institutions where one or more units of the Reserve Officers' Training Corps are maintained. In time of peace retired officers, retired warrant officers, or retired enlisted men shall not be detailed under the provisions of this section without their consent, and no officer on the active list shall be detailed for recruiting service or for duty at a school or college, not including schools of the service, where officers on the retired list can be secured who are competent for such duty. officers below the grade of brigadier general and retired warrant officers and enlisted men shall, when on active duty, receive full pay and allowances." Hereafter retired In very truth, as matter of law and fact, the chief function of officers of the Regular Army throughout their service is that of instructing and training others to become effective officers and soldiers, and no military instruction is more important than that of the Reserve Officers' Training Corps. The idea back of the ruling to the contrary is evidently one that, in the words of a service journal, "conceives 'military' duty as requiring nothing less than the spectacle of an officer, waving a saber over his head, gallantly leading a charge up a hill to the mouth of a belching cannon." Military duty in war is sometimes so pictured, but even in actual war, and necessarily in peace, military duty is not spectacular. National defense is found in prosaic preperation. III THE PRESIDENT, COMMANDER IN CHIEF OF THE ARMY, THE SECRETARY OF WAR, That this is so is shown by War Department reports, orders, and other evi- IV WHEN CONGRESS IN ITS POWER PRESCRIBES A MILITARY DUTY AND THE PRESIDENT, We assume that lawyers will concede this point without the necessity of argu- as military duty, the Comptroller General says is only a "special form of duty," only "semimilitary." If the Comptroller General has the power to say out of his knowledge that it is only semimilitary, he has the power to say it is only a quarter military, or a hundredth military, or not military at all. The term "semimilitary," or "special form" of military, or any other qualifying term, is not known to the statute. The power does not exist, in court, Comptroller General, or other authority, to invent such qualifications and distinctions and apply them to military duty as prescribed by Congress, directed by the Commander in Chief, and performed by an officer of the Army. V THE STATUTE MAKES NO DISTINCTION BETWEEN ACTIVE RESERVE OFFICERS' TRAINING CORPS DUTY AND ANY OTHER ACTIVE DUTY BY A RETIRED OFFICER The Comptroller General says in respect of Reserve Officers' Training Corps duty: "A detail under this statute is a detail to a special form of duty, semimilitary in character, for which provision has been made for both detail and pay pur poses separately and apart from 'active duty' proper or military duty generally which latter duty is the duty covered by section 51 (127a, par. 9) of the same act of June 4, 1920 * * *"" Permit us to ask: Where does the statute define, or suggest the definition of, "active duty proper" or "military duty generally"? Where does it distinguish between military duty of one kind and military duty of another? The purpose of the act generally was to permit the fullest use of competent retired officers, warrant officers, and enlisted men. Section 40b, in its concluding sentence, provides in terms of general application: "Hereafter retired officers below the grade of brigadier general and retired warrant officers and enlisted men shall, when on active duty, receive full pay and allowances." The corresponding provision found in section 45 of the 1916 act, which section was expressly repealed by the 1920 act, read: "Retired officers below the grade of lieutenant colonel so detailed (that is, to Reserve Officers' Training Corps) shall receive the pay and allowances of that grade, and retired officers above the grade of major so detailed shall receive the same pay and allowances as a retired major would receive under a like detail." The provision just quoted from the 1920 act strikes down not only these specific limitations, but also the organic provision limiting the pay of a retired officer to three-fourths of the active pay, thus giving all retired officers below brigadier general on active duty of every kind the full pay and allowances of their grade. With nothing more, however, active duty could not be counted for longev ity pay or increase in rank, which Congress deemed right and proper. Accordingly, as one of the provisions under Section 127a, miscellaneous provisions" Congress enacted: "Hereafter any retired officer who has been, or shall be, detailed on active duty 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 for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed to active duty since his retirement." Nothing is here said and nothing can be inferred about full military duty, or "active duty proper," or "military duty generally," or duty marked by any kind of distinction or qualification. The terms used are "any retired officers," "on active duty," that is any and all active duty, "shall receive," and so forth. Nor can it be held that the concluding sentence of section 40b is a particular provision applicable to active Reserve Officers' Training Corps duty and prevailing over the genral rule of par. 9, sec. 127a. But the former is not a particular provision; it is just as general in form and purpose as the latter; it is in the most general terms possible. Congress deliberately struck down the language in the original act which was particularly limited to Reserve Officers' Training Corps duty. The language used in the original section authorizing detail to Reserve Officers' Training Corps duty is, "so detailed" (3 instances), "detailed under the provisions of this section" (2 instances). Why did Congress strike this language down if it wished to retain its meaning? With this limiting language before its eyes, why did Congress repeal it and displace it by the most general language possible? Again, the rule applies only where the particular and the general provisions conflict. (Sutherland, sec. 387.) These two do not conflict, but are in perfect harmony. One having one purpose supplements the other having another purpose. The first lifts the organic limitation of three-fourths pay (sec. 1274, R. S.), but authorizes no increase of rank; the second authorizes increase of rank on the retired list but does not lift the bar of three-fourths pay. establishes full pay without reference to advancement in rank, the other establishes advancement in rank with the retired pay of that rank without disturbing The one the three-fourths bar. For example: A retired captain on active duty sufficiently long to make him a major, without the aid of either, receives but threefourths pay; with the aid of the first without the second he would receive full pay and allowances of the grade of captain; with the aid of the second without the first he would receive only three-fourths of the pay of captain until advanced to rank of major, and thereafter only three-fourths of the pay and allowances of that grade. With the aid of both he receives the full pay and allowances of the rank he holds before and after advancement-the fair and sensible rule doubtless intended. VI THE PRESIDENT AND WAR DEPARTMENT IN THE EXECUTION OF THE ACT OF JUNE 4, 1920, GAVE IT THE CORRECT CONSTRUCTION We think the meaning of the statute so clear that there is no room for construction. Even if there were, the Executive construction should control. (United States v. Moore, 95 U. S. 760.) Pay follows rank, which is not office (Cloud v. United States, 43 Ct. Cls. 69), and both the rank and pay of retired officers are entirely within the control of Congress without need of appointment and confirmation (Wood v. United States, 107 U. S. 414). Congress intended to increase the rank of retired officers by giving them the rank which their active service while on the retired list would have brought them had they remained on the active list. It removed all restrictions and authorized the President to put them on any active duty, and intended that they should get credit for all active service of every kind. The President and War Department so executed the statute with whose provisions and meaning the department was unusually familiar, for the hearings and debates will show that the department made the original draft of the act of 1920 and was in close cooperation with the committees during all the legislative phases of the bill. Upon its enactment the department gave to all officers who were then and had been on Reserve Officers' Training Corps, as well as any other active duty, the credit authorized by said section 127a, paragraph 9. From the passage of the act of June 4, 1920, the department from time to time announced the advancement in rank on the retired list of the various retired officers having sufficient active service to justify such advancement, including retired officers on Reserve Officers' Training Corps duty, and continued to do so until the decision of the Comptroller General in the Lauderdale case. examination of the Army Register, published in compliance with an act of Congress, will reveal the advancement of the retired officers on Reserve Officers' Cursory Training Corps duty. CONCLUSION Reserve Officers' Training Corps is active military duty, unqualified. inherently so in fact; it is conclusively so in law. Congress created it a military duty of the utmost importance; the President ordered it so performed. It is officer duly detailed thereto is-if any retired officer ever is-on active duty A retired entitling him to that advancement in rank, pay, and allowances which Congress mandatorily said shall be his. Respectfully submitted. WASHINGTON, D. C., ANSELL & BAILEY, January 14, 1925. |