Navy, or as Major General Commandant of the Marine Corps, or who has served or shall have served 21⁄2 years or more as Chief of Naval Operations, as Chief of a Bureau of the Navy Department, as Judge Advocate General of the Navy, or as Major General Commandant of the Marine Corps, and is retired after completion of such service while serving in a lower rank or grade, may, in the discretion of the President, be retired with the rank, pay, and allowances authorized by law for the highest grade or rank held by him as such Chief of Naval Operations, Chief of Bureau, Judge Advocate General, or Major General Commandant, and that the President in his discretion may extend the privileges herein authorized to such officers as have heretofore been retired and who satisfy the foregoing conditions. It is also provided that no increase herein in retired pay shall be held to have accrued prior to the passage of this act.

The retirement provisions contained in the proposed bill were apparently intended by the Congress to be established for Chiefs of Bureau by the act of May 13, 1908 (35 Stat. 127, at p. 128; U. S. C., title 5, sec. 443), the pertinent part of which reads as follows:

66* * * any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such bureau chief

*

However, the Court of Claims has construed that portion of the act of May 13, 1908, quoted above, as applying to chiefs of bureau who are placed on the retired list while so serving, and as not applying to officers who, having served as such, are retired after relinquishing the office of chief of bureau. The word "subsequently" appearing in the statute was construed to mean "while so serving." Stokes v. The United States (54 Ct. Cls. 70; 1919).

The effect of the decision in the Stokes case, insofar as the Army is concerned, has been overcome by the act of June 4, 1920 (41 Stat., 759 at p. 762; U. S. C., title 10, sec. 1026) which provided for the retirement of officers who serve as chief of a branch in a manner similar to that provided by the proposed bill. Under the provisions of the act of February 2, 1901 (31 Stat. 748 at p. 755; U. S. C., title 10, sec. 1026a) officers of the Army who serve as chief of staff corps or chief of a department are retired with the rank, pay, and allowances of such corps or department chief. The act of June 25, 1936 (49 Stat. 1924) makes similar provision for officers who serve as commandant of the Coast Guard.

The result of the provisions of law cited above is that whereas officers who serve as Chief of Staff of the Army may retire at any time as generals, officers who serve as chief of branch may retire as major generals, and officers who serve as Commandant of the Coast Guard may retire as rear admirals, officers who occupy similar positions in the Navy enjoy no such privilege.

It frequently occurs that officers of the Navy below the rank of rear admiral, or with the rank of rear admiral but in the lower half of that grade, are appointed as Chief of Naval Operations, chief of a bureau, or Judge Advocate General; and that officers below the rank of major general are appointed as Major Generals Commandant of the Marine Corps. Such appointments are made in cases where individuals have demonstrated an outstanding ability to perform the duties of the office concerned.

Under existing law, as construed, there has been a growing tendency on the part of such officers, especially those in the staff corps, to retire voluntarily just prior to the termination of their office in order to take advantage of the increased rank and retired pay provided by law for their retirement at that time.

The Navy thus loses the services of officers with the highest capabilities some years sooner than would be the case if those officers remained on the active list until reaching the statutory retiring age. As the proposed legislation would extend to such officers the same provisions for retirement which they have while in office in the event that their retirement occurs subsequent to the termination of their service in such office, it is believed that the Navy would receive the benefit of the services of most of these officers until they reach the statutory retiring age should the proposed measure be enacted.

It is the opinion of the Navy Department that the retirement of the officers enumerated in the proposed bill with the retirement privileges provided therein, should be accomplished only upon authorization by the President in each case. Such a provision would tend to assure that individuals whose character of service might not warrant the favorable retirement benefits provided by the proposed bill, would enjoy no vested right in such benefits.

At the present time there are two officers on the retired list who have served as Chief of Naval Operations. Enactment of the proposed bill would result in no increase in their retired pay, since they retired as rear admirals of the upper

half, the pay of which grade is that which they received while serving as Chief of Naval Operations.

There are three officers on the retired list who have served as Chief of Bureau and who would benefit by enactment of the proposed bill. The retired pay of these officers would be increased by $1,500 per year each, resulting in an additional cost to the Government of $4,500 annually.

Since the present Chief of Naval Operations is of the permanent grade of rear admiral of the upper half, his retirement under the provisions of the proposed bill would involve no additional cost to the Government.

There are now seven officers on the active list serving as Chief of Bureau or as Judge Advocate General of the Navy and two officers on the active list who formerly served as Chief of Bureau who have not yet attained the permanent rank and pay of a rear admiral of the upper half. Those now serving as Chief of Bureau or Judge Advocate General, if retired while in office, would receive the pay of a retired rear admiral of the upper half under existing law, and in that event the enactment of the proposed bill would result in no additional cost to the Government. Further, it is possible that all of these officers may continue on the active list until they attain the pay of rear admiral of the upper half. In such an event no additional cost to the Government would be involved through enactment of this proposed bill. However, in the event that none of these nine officers otherwise attain the pay of rear admiral of the upper half, enactment of the proposed bill would result in an increase of $1,500 per year in the retired pay of each, or an additional cost to the Government of $13,500 per year.

Under the existing rigorous system of selection by means of which promotion in the Navy is accomplished, few officers attain the positions to which the proposed bill refers. Under the operation of the bill, if enacted, these valuable officers would remain in active service until they reach the statutory retiring age of 64. The cost to the Government that would be involved through enactment of the bill is small and is entirely justified as an inducement to those who have reached high positions to remain in active service rather than to retire before reaching the statutory retiring age. The service and achievements of those who reach the positions enumerated in the proposed bill are such as warrant the dignity during retirement of the highest title held by them when in active service and a very small increased compensation during the short remaining period of life. The system of rotation of command in the Naval Establishment brings about shorter tours of duty in the Navy than in the Army. To make this proposed law conform as closely as possible to the law governing the Army and yet applicable to the situation existing in the Navy, it is necessary to establish a minimum requirement of 21⁄2 years' service in the offices enumerated. Offsetting this feature is the provision which makes retirement under the proposed law discretionary in the President, whereas the law pertaining to the Army is mandatory.

Except as noted in the preceding paragraph the proposed bill brings the laws governing retirement of officers of the Army and Navy serving as Chiefs of Staff, Chiefs of Naval Operations, bureau chiefs, etc., into exact agreement.

The Navy Department recommends that the proposed legislation be enacted. CLAUDE A. SWANSON.

Sincerely yours,

О

75TH CONGRESS HOUSE OF REPRESENTATIVES 3d Session

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REPORT No. 2159

AUTHORIZING ACQUISITION OF LAND BY DONATION AT OR NEAR FORT MISSOULA, MONT.

APRIL 19, 1938.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. MAY, from the Committee on Military Affairs, submitted the following

REPORT

[To accompany S. 3459]

The Committee on Military Affairs, to whom was referred the bill (S. 3459) to authorize the Secretary of War to acquire by donation land at or near Fort Missoula, Mont., for target range, military, or other public purposes, having considered the same, report favorably thereon with a recommendation that it do pass.

This bill, which is proposed by the War Department for enactment into law, authorizes the Secretary of War to accept by donation approximately 2,700 acres of land at or near Fort Missoula, Mont., for target range, military, or other public purposes. Provision is made that in the event the donor is unable to perfect or acquire title to any of the land tendered as a donation, condemnation of such land is authorized in the name of the United States and payment of any and all awards for title to such land as is condemned, together with the cost of the suit, shall be made by the donor.

In a letter to the committee dated February 11, 1938, the War Department pointed out that the Chamber of Commerce of Missoula, Mont., has offered to acquire and convey to the United States, without cost, about 2,700 acres of land in the vicinity of Fort Missoula, Mont., to be used for a target range and other public purposes to serve Fort Missoula. The committee were further advised that the donor has taken steps to acquire the land but that the donor is unable to acquire a parcel of about 840 acres located in the center of the proposed target range, due to the fact that the owner has demanded an exorbitant price therefor. The donor is without authority to exercise the power of eminent domain to acquire title to this land, and the chamber of commerce has suggested that the tract in question be condemned in the name of the United States, the cost of the suit and ensuing award to be borne by the Chamber of Commerce of Missoula, Mont.

Under the act of July 2, 1917, as amended, the Secretary of War has authority to condemn and to accept donations of land for target ranges. However, the War Department believes it advisable in connection with the land proposed to be acquired near Fort Missoula, since the award in condemnation proceedings will be paid by the donor, that specific authority of Congress be obtained for the institution of the condemnation proceedings in the name of the United States.

The land proposed to be donated to the United States is greatly needed to serve the military needs of Fort Missoula. The enactment of this measure into law will occasion the Government no expense, but on the contrary its approval will save the Government many thousands of dollars which would have to be expended if the entire area were to be purchased by the Government.

Letter from the War Department dated February 11, 1938, follows: WAR DEPARTMENT, February 11, 1938.

Hon. MORRIS SHEPPARD,

Chairman, Committee on Military Affairs,
United States Senate

DEAR SENATOR SHEPPARD: There is enclosed the draft of a bill to authorize the Secretary of War to acquire by donation land at or near Fort Missoula, Mont., for target range, military, or other public purposes, which the War Department presents for the consideration of the Congress with a view to its enactment into law.

The act of Congress approved July 2, 1917 (40 Stat. 241), as amended by the act of April 11, 1918 (40 Stat. 518; U. S. C. 60: 171), provides in part as follows: "That hereafter the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, military training camps * Provided further, That the Secretary of War is hereby authorized to accept on behalf of the United States donations of land and the interest and rights pertaining thereto required for the above-mentioned purposes

* *

* *

The Chamber of Commerce of Missoula, Mont., has offered to acquire and convey to the United States of America, without cost, the fee simple title to an area of approximately 2,700 acres of land in the vicinity of Fort Missoula, Mont., to be used for a target range and other public purposes to serve Fort Missoula and has taken steps to acquire the desired area with a view to its conveyance to the Government. However, the donor is unable to acquire a parcel of approximately 840 acres located in the center of the proposed target range, due to the fact that the owner has demanded an exorbitant price therefor, and it is without authority to exercise the power of eminent domain to acquire title thereto. The chamber of commerce has suggested, in order that acquisition of the much-needed target-range site may be completed, that the tract in question be condemned in the name of the United States of America, the cost of the suit and ensuing award to be borne by said organization.

Although the Secretary of War is authorized to condemn and to accept donations of land for target ranges under the provisions of the act of July 2, 1917, as amended, supra, it is deemed advisable in the instant case, since the award in such proceedings will be paid by the donor, that specific authority of Congress be obtained for the institution of the condemnation proceedings in the name of the United States of America; the legislation to also authorize the acceptance of the donation of the entire area.

The passage of the bill will not involve the expenditure of any Federal funds, but on the contrary the Government will acquire title to a much-needed area to serve the military needs of Fort Missoula, thus saving many thousands of dollars which would have to be expended if the entire area were purchased by the Government. The proposed legislation was submitted to the Bureau of the Budget, which advised that there would be no objection to its submission to Congress.

Sincerely yours,