required by par 6 of the same Circular Letter do not alter the fact that he held a permanent appointment as chief carpenter in the U. S. Naval Reserve. Op JAGN 1954/254. 20 September 1954.

§ 45. Appointment of Officers

§ 45.2. Eligibility, generally.

An officer's separation from the Army by honorable discharge under the requirements of secs 509h and 514e of the Act of Congress approved 7 August 1947 (PL 381, 80th Cong), following his being passed over by two promotion boards, does not render his subsequent commission in the Army Reserve invalid. JAGA 1954/6431. 30 July 1954.

Legality of Reserve appointment of person who was under orders to report for induction but had obtained postponement of induction pending review of case, see Op JAGN 1954/241, WAR & DEF § 5.9.

The receipt of severance pay by a member at the time of his discharge for physical disability does not preclude his subsequent appointment, if qualified therefor, in the Army Reserve. (Cf. sec 410, Career Compensation Act of 1949 (63 Stat 823, 37 USC 280); par 20, AR 35-1355, 14 Dec 1951). JAGA 1954/8893. 9 November 1954.

The receipt of severance pay for any reason does not preclude subsequent appointment, if qualified therefor, in the Army Reserve. (Citing JAGA 1954/6431, 30 July 1954.) JAGA 1954/9904. 30 December 1954.

§ 45.7. Age qualifications.

Reserve Officers Training Corps graduates who have reached 18 years of age may be appointed as Reserve commissioned officers. (Citing subsec 47b, National Defense Act, as amended (10 USC 354); subsec 217(a), Armed Forces Reserve Act of 1952 (66 Stat 486, PL 476, 82d Cong, 2d session); par 2(a), AR 145-105, 1 May 1953; par 8(a), AR 140-105, 28 Nov 1952.) JAGA 1954/2223. 10 March 1954.

§ 45.13. Aliens.

A non-citizen who has had prior service in the Armed Forces of the United States or the National Security Training Corps, and noncitizens who have made a declaration of intent to become a citizen of the United States, its territories or possessions, appear to be eligible for appointment or enlistment as a Reserve under the Provisions of § 217 (a) of the Armed Forces Reserve Act of 1952 (§ 217(a), Act of 9 July 1952, 66 Stat 486, AF Bull. 16, 1952).

There appears to be no provision of law prohibiting a lawfully appointed non-citizen Reserve from serving on active duty. Op JAGAF 1953/45. 19 October 1953.

§ 45.19. Term of appointment.

Executive Order No. 10441, 31 March 1953, continued in effect until 1 July 1953 the Reserve appointment of a Regular Army en

listed man who in his enlisted status was a prisoner of war in Korea from 27 November 1950 until 30 August 1953 even though his appointment as a Reserve second lieutenant would normally have expired on 1 April 1953 and by virtue of Executive Order No. 10466, 30 June 1953, such appointment was further continued in effect until it was terminated on 23 October 1953 by the man's release from active duty. JAGA 1954/5712. 23 June 1954.

An officer was federally recognized as a colonel in the Arkansas National Guard on 28 November 1925. Because of such federal recognition he was appointed colonel in the infantry reserve on 17 November 1926 with the proviso that such appointment would continue in force only for such period of time as federal recognition remained in effect. Federal recognition was withdrawn on 27 April 1928 by reason of transfer, by the Adjutant General, State of Arkansas, to the detached officers' list. Held: The federal recognition of the officer as a colonel of infantry automatically terminated on 27 April 1928, the date he was transferred to the detached officers' list. In view of such termination, his appointment as a colonel, infantry reserve, being one "for the period during which such federal recognition shall continue in effect and terminating at the expiration thereof" (sec 38 of the National Defense Act, as amended (formerly 10 USC 359)), was properly terminated on 27 April 1928. (Citing JAG 325.35, 6 Jan 1928.) JAGA 1954/8194. 11 October 1954.

§ 47. Enlistments

§ 47.13. Aliens; non-citizen American nationals.

See Op JAGAF 1953/45, supra § 45.13.

§ 53.2. Effective date.

§ 53. Promotions

A Reserve officer was ordered to active duty for training for the period 12 to 26 October 1953 in the rank of lieutenant colonel. By letter of appointment dated 15 October 1953, he was appointed a colonel effective that date in the Army Reserve under the Armed Forces Reserve Act of 1952, 66 Stat 481. He accepted such appointment by executing the oath of office on 19 October 1953 and he actually served his active duty period from 12 to 26 October. Held: The officer is entitled to the difference between the pay of a lieutenant colonel and that of a colonel for active duty for training performed on and after the date of the letter appointing him to the higher rank, since a letter of appointment of a Reserve officer to a higher grade is an order announcing a promotion within the meaning of the Act of 14 October 1942 (56 Stat 787, 10 USC 558), and consequently such a promotion is effective on the date the letter of appointment is issued unless the officer expressly declines to accept it. (JAGA 1952/9668, 2 Feb 1953, 3 Dig Ops No. 1, RES F § 53.2). Also, neither a new oath of office nor other evidence of the acceptance of the appointment to the higher grade is required (JAGA 1953/2719, 19

March 1953, 3 Dig Ops No. 1, RES F § 53.9). Furthermore, since the officer was on active duty for training in the Army Reserve and his promotion was in the Army Reserve, it was not necessary for him to receive orders addressed to him in the higher grade calling him to active duty for training in such higher grade to become entitled to the pay of that grade while performing active duty for training under competent orders on and after the date of said promotion. (Distinguishing 26 Comp Gen 245.) MS Comp

Gen B-118045, 33 Comp Gen 612. 29 June 1954.

§ 55.1. Generally.

$55. Pay and Allowances

By General Orders, Headquarters Sixth Army, dated 29 February 1952, it was directed that Company G, 381st Infantry Regiment (Res), a Later Ready Force, Unit-Cadre Status, located at Bozeman, Montana, be reorganized in Initial Activation Status, and transferred less personnel to Billings, Montana, effective 1 March 1952. Company L, 381st Infantry Regiment, located at Billings, Montana, was, by General Orders of the same headquarters and same date, similarly transferred to Caldwell, Idaho, and the individuals at Billings, formerly with Company L, were reassigned to the newly transferred Company G. For pay purposes Company G was on a twenty-four assembly per year basis (see Message AMGCT-3 03825, Headquarters Sixth Army, 26 Mar 1952; sec 501 (a), Career Compensation Act of 1949, 63 Stat 825; AR 140-250, 25 May 1950). Company G held sixteen assemblies at Bozeman between 1 July 1951 and 29 February 1952, and six assemblies at Billings between 1 March 1952 and 31 May 1952, and four assemblies at Billings in June 1952, making a total of twenty-six assemblies at both stations for the fiscal year 1952. However, the individuals transferred from Company L to Company G did not attend more than twenty-four assemblies notwithstanding the combined assemblies of Company G while at Bozeman and Billings totaled twenty-six. Held: Since the members involved did not attend a total of more than twentyfour assemblies and since the assemblies of Company G at Billings did not exceed the limitation prescribed for the period involved, the members are not precluded from being paid for the assemblies attended even though the combined number of assemblies held by Company G at Bozeman and Billings exceeded the number authorized for later ready units. MS Comp Gen B-118002, 33 Comp Gen 510. 23 April 1954.

§ 61.1. Generally.

61. Injuries, Disability, or Death

Under the last proviso of sec 5, Act of 3 April 1939 (53 State 557), as amended by inter alia, sec 2, Act of 20 June 1949 (63 Stat 202, 10 USC 456), personnel of the Army other than Regular Army personnel who are ordered into active military service, to perform active duty for training, or inactive duty training, and who suffer death or disability while so employed are entitled to the same pen

sions, compensation, death gratuity, hospital benefits, and pay and allowances as are provided for Regular Army personnel. Among the benefits to which a Reserve officer injured in the line of duty as the proximate result of the performance of active duty for training may become entitled in accordance with the mentioned statute are hospitalization, out-patient treatment, or rehospitalization following the period of active duty for training, and pay and allowances during such periods of hospitalization. (Citing JAGA 1951/ 5836, 27 Sep 1951, 1 Dig Ops, NG § 61.1; JAGA 1952/2590, 26 Mar 1952; JAGA 1952/5567, 23 Jul 1952, 2 Dig Ops, NG § 61.3; cf. JAGA 1953/1337, 4 Feb 1953; 30 Comp Gen 185; 30 Comp Gen 476; JAGA 1952/8464, 17 Nov 1952, 2 Dig Ops Res F § 61.1 JAGA 1954/ 4915, 11 Jun 1954, 4 Dig Ops No 2 Res F § 61.5; 28 Comp Gen 509; 29 Comp Gen 535; SR 140-180-15, 3 Feb 1950, as changed.) JAGA 1954/5784. 9 July 1954.

§ 61.5. Injury or disability incurred during active duty or active duty training.

Reservists who, with their consent, are serving on active duty without pay under the authority of sec 240 of the Armed Forces Reserve Act of 1952, 66 Stat 492, and who suffer a disability in line of duty from disease while performing duty under orders providing for duty in excess of thirty days or who suffer a disability in line of duty from injury while performing duty under orders covering any period of time, are entitled to pay and allowances during hospitalization under the Act of 20 June 1949. (Citing Sen Rep No. 95, 81st Cong, 1st sess, 5 March 1949; cf. 29 Comp Gen 397 and 31 Comp Gen 44.)

Held also: Such persons may be considered entitled, under the Act of 20 June 1949, to pay and allowances from the date the disease is contracted or the injury sustained, as determined by appropriate authority, even though hospitalization is not commenced on that date provided the disability is sufficiently serious to require hospitalization under ordinary circumstances and the delay in hospitalization results from lack of hospital facilities or from other good cause. Pay and allowances continue to accrue to such members until their cases are finally disposed of, including periods while hospitalized, after release from hospital, if it be determined that the members continue to be disabled for normal pursuits by the disability for which hospitalized, and while awaiting action on disability retirement proceedings if such proceedings are instituted. (Citing 29 Comp Gen 509; 30 Comp Gen 185; 33 Comp Gen 339.) MS Comp Gen B-117730, 33 Comp Gen 411. 29 March 1954.

A Reserve officer, who was ordered to active duty for fifteen (15) days training and sustained injuries in line of duty during such period, is entitled to the benefits enumerated in the last proviso of sec 5, Act of 3 April 1939 (53 Stat 557), as amended (10 USC 456). However, that portion of the proviso of sec 5, Act of 3 Apr 1939, supra, relating to physical disability retirement pay has been superseded by sec 402, Career Compensation Act of 1949 (63 Stat 816; 37 USC 272). Accordingly, the officer's entitlement, if any, to dis

ability retirement pay will be governed by the provision of this latter statute. (Citing CSJAGA 1949/5238, 3 Aug 1949; JAGA 1953/6407, 27 Aug 1953.) JAGA 1954/4915. 11 June 1954.

A Reserve officer who was ordered to active duty under orders specifying thirty-two days "active duty training," incurred a physical disability in line of duty during such period. The officer claimed that notwithstanding the use of the word "active duty training" in his orders, the duty he performed was not in fact "training," but active duty. Held: The orders directing the officer to report for active duty training were not conclusive as to whether his service was active duty or training duty. Whether the officer was on active duty or training duty is an issue of fact.

Held also: With respect to the provisions of subsecs (a) and (b) of sec 402 of the Career Compensation Act of 1949, 63 Stat 816-818, 37 USC § 272 (a), (b), authorizing the payment of retirement pay to Reserve officers who incur physical disability when on "extended active duty" for a period in excess of thirty days, the phrase "extended active duty" has a distinct statutory meaning and does not include duty properly designated as training duty, no matter how long the training duty continues. Remaley v. United States (1954, Ct Cls), 122 F Supp 679.

§ 69.1. Generally.

§ 69. Termination of Status

Enlistment by Naval Reservist in Army as not terminating Reserve status, see Op CCCG 1954/23, RETIRE § 41.1.

§ 69.11. Induction into armed forces.

Induction of Naval Reservist into the Army as terminating Reserve appointment, see Op JAGN 1954/241, WAR & DEF § 5.9.

§ 69.21. Boards.

A board to inquire into the conduct of an officer in the U. S. Naval Reserve was convened by the Commandant, Third Naval District. The board was composed of all Regular Navy officers. The board, while of the opinion that the conduct of the officer warranted his discharge from the Naval Reserve for cause, recommended that in view of his past service and possible future value to the naval service a letter of reprimand be issued to him and made a part of his official record. The Commandant, Third Naval District did not concur in the board's recommendations but recommended to the Chief of Naval Personnel that the officer be discharged from the Naval Reserve for cause. Held: The proceedings do not support the discharge recommended by the Commandant of the Third Naval District. The board of officers made no recommendation for discharge as required by sec 249 (a), Armed Forces Reserve act of 1952 (66 Stat 481, 50 USC 901 et seq). Furthermore, such a recommendation by the board, even if made, would have been unavailing, for under secs 249 and 254 of the Armed Forces Reserve Act of 1952, supra, the board was not properly appointed or constituted