Digest of Decisions and Opinions Relating to Pensions and Bounty Land

PROVOST-MARSHALS-RANK.

2. President's-Continued.

the civil branch of the service, are not included within the terms of said section, and are not pensionable thereunder. Andrew J. Shannon (Asst. Sec. Reynolds), 7 P. D., 64.

1. A commission is not indispensable.

2. A vacancy must have existed.

(a) Question of vacancy is determinable by War Department.

3. Muster-in essential to confer rank.

4. State commission subsequent to discharge from United States service.

5. Officer, as used in act of January 29, 1887, construed.

1. A commission is not indispensable.

The question having been submitted to the Attorney-General, he is of the opinion that service in a military office, even although the commission may not be issued or may not date back to the commencement of the service, entitles the person to pension for such service. Communication (Sec. Cass), Pension Laws, etc. (1849), 98.

While an application by a person claiming to have acted as an officer without having received a commission should be received with caution, a commission is not indispensably nec essary to invest a person with rank or command, or to entitle him to the emoluments of the office which he fills, but some act or instrument of writing tantamount to a commission, or promise of a commission is deemed essential; and it must in all cases be clearly shown such claimant was prevented from receiving such commission in consequence of peculiar circumstances over which he had no control. Ruling (Sec. Cass), Pension Laws, etc. (1849), 99.

The acts of Congress which confer pensions upon officers proportioned to the grades of the positions they held were intended to apply to those only who were regularly appointed to such offices by competent authority; and it is necessary to

1. A commission is not indispensable-Continued.

prove, not merely that a person performed service, but his legal right to perform such service; as was held by Secretary of War Cass, stating that, while it is not indispensably necessary in order to invest a person with rank that there be a commission, yet there must be some act or instrument in writing tantamount to a commission or a promise of a commission, and it must be shown that the person was prevented from receiving one by circumstances beyond his control. Widow of William McClure (Sec. C. B. Smith), 5 L. B. P., 24.

2. A vacancy must have existed.

If no vacancy exists no rank is conferred by a commission. Mother of Michael Mullin (Sec. Delano), 1 P. D. (o. s.), 494.

Rank is not conferred by a commission issued by the governor of a State, where it is shown that during the period between the date of the instrument and the date of the death. of the soldier no vacancy existed in the office designated in said commission. Elizabeth P. Hull (Sec. Schurz), 5 P. D. (0. s.), 431.

In determining the question of pensionable rank under section 4696, Revised Statutes, as held in Elizabeth P., widow of Abrathar Hull (5 P. D., o. s., 431), if the organization for which a commission had been issued was so reduced in numbers that, under the regulations of the War Department, it was not entitled to an officer of the rank conferred by the commission, a vacancy did not exist in such rank within the meaning of the section. William A. Thomas (Sec. Teller), 9 P. D. (o. s.), 225.

(a) Question of vacancy is determinable by War Department.

Whether, in any case affected by section 4696, Revised Statutes, a vacancy existed in the rank conferred by a commission, is a question for decision by the officers of the War Department solely, and their report to the Pension Office that such vacancy did not exist must be accepted as conclusive on that point. Cyrus Oakes (Sec. Teller), 9 P. D. (o. s.), 437.

3. Muster-in essential to confer rank.

See RATING, 1 (e).

4. State commission subsequent to discharge.

Where an officer was mustered out and his organization disbanded and discharged from the service of the United States prior to his commission by the governor of his State to a higher rank, he is not pensionable as of such rank. Elisha A. Hancock (Sec. Teller), 14 P. D. (o. s.), 297.

RANK-RATING.

5. Officer, as used in act of January 29, 1887, construed.

The word "officer" in the act of January 29, 1887, should be held to apply to those whose rank was recognized in the service by the rules, regulations, and customs in vogue at the time the service was rendered. Richard H. Sinton (Asst. Sec. Hawkins), 2 P. D., 320.

See also SUBTITLE 6 (b).

Unless specifically provided for, there is no provision of law by which disabilities can be considered separately and compounded so as to allow for all the pension which each, considered separately, would aggregate. Abram McCullum (Actg. Sec. Bell), 6 P. D. (o. s.), 111.

Where pension was allowed at the rate shown as proper for wound alone, the factor of disease not being considered, both the wound and disease should be considered and the claim readjusted to embrace both disabilities. Henry McDonough (Sec. Schurz), 6 P. D. (o. s.), 475.

Claimant was pensioned at the rate of $45 per month for the loss of a leg above the knee, and claims, also, for the loss of an eye, contending that he is entitled to $63 per month for the combined disabilities. There is no intermediate rate between $45 and $50, nor between $50 and $72, and the law does not allow the compounding of ratings for specific disabili ties, thereby creating a special rate for a special disability; and to entitle claimant to a higher rate than $45 per month, it must be shown that the combined disabilities have resulted in permanent total helplessness, requiring the personal aid and attendance of another person. Michael Kelley (Asst. Sec. Bussey), 3 P. D., 240.

1. Generally-Continued.

(c) Basis of racing-compounding rates and combining disabilities—Cont'd. The act of August 4, 1886, does not provide a rate for any combination of disabilities. Theodore De Tar (Asst. Sec. Bussey), 4 P. D., 130.

The practice of the Department in determining pensionable ratings is governed not by a combination of separate ratings for separate disabilities, but by the sum total of the disability for manual labor, as ascertained by the medical division of the Bureau of Pensions. Albert Marshall (Asst. Sec. Bussey), 5 P. D., 226.

The pension laws give no authority for combining the rates for two or more causes of disability, so as to make an aggregated rate, except in cases of certain specific rates granted for certain conditions defined in the law itself. Hiram H. G. Bradt (Asst. Sec. Bussey), 5 P. D., 282.

(d) Certificates of examination, ratings in.

The certificate of a regular examining surgeon of the Pension Office should as a general rule, in the absence of any opposing proof, determine the rate of allowance, unless a mistake has been evidently made or there is ground to suspect collusion or fraud. Henry Nolte (Sec. Browning), 6 L. B. P., 344.

The office should not be governed so much by the rating made in figures by the examining surgeon as by his description of the disabilities found to exist. Irving W. Billings (Sec. Schurz), 6 P. D. (o. s.), 193.

In fixing rates of pension the reports of examining surgeons are not to be invariably followed to the letter, even though proven by other evidence to be erroneous, but such is the gen eral rule, and, other things being equal, such reports should be given preference over the testimony of civil surgeons, and such rating made as all the evidence in the case may war rant. Explaining the rule in John H. Lunderville, 3 P. D., Charles A. Glasgow (Asst. Sec. Bussey), 4 P. D., 348. The rates recommended by examining surgeons in their certificates of examination are merely indicative of their own professional opinions as to the severity of the disability resulting from each disease or injury described by them, but have no binding force until approved by the Commissioner of Pensions. George W. Blake (Asst. Sec. Bussey), 5 P. D., 81.

209.

The rates recommended by examining surgeons in their certificates of examination are merely indicative of their professional opinions as to the severity or character of the disability resulting from each disease or injury described by them, but

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Digest of Decisions and Opinions Relating to Pensions and Bounty Land: With ...