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Pursuant to this regulation, automobiles were included in shipment of authorized baggage of personnel of the Military Establishment under the assumption that transportation thereof would be legally defrayed at public expense.

Subsequently, however, the Comptroller General held that payment for shipments would be, without exception, at rates for household goods.

Under this decision, the personnel concerned have been required to reimburse the Government for excess rate on automobiles over and above rate on household goods; although shipments were made with the belief that the regulation, by defining authorized baggage as including automobiles, thereby provided for transportation at Government expense, when total weight did not exceed authorized allowances.

In view of the fact that shipments were made in good faith between September 20, 1927, when the regulation was published, and October 10, 1929, when the regulation was changed to include a specific statement that excess rate on automobiles must be borne by persons making shipment, it is believed to be unfair to hold those concerned pecuniarily liable for such excess.

Therefore, the War Department seeks enactment of the inclosed bill, which will allow the items, will relieve personnel of a liability incurred through no fault of their own, and will have no other effect.

Sufficient funds are available in an appropriated status to defray the costs involved. In view of the fact, however, that the proposed legislation would authorize payment from public funds of claims which, in the view taken by the General Accounting Office, can not be so paid under the existing law, this proposed legislation has been submitted to the Director of the Bureau of the Budget who advises that it is not in conflict with the financial program of the President. Sincerely yours,

PATRICK J. HURLEY, Secretary of War.

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Mr. REED, from the Committee on Military Affairs, submitted the

following

REPORT

[To accompany H. R. 3592)

The Committee on Military Affairs, to which was referred the bill (H. R. 3592) to further amend section 37 of the national defense act of June 4, 1920, as amended by section 2 of the act of September 22, 1922, so as to more clearly define the status of reserve officers not on active duty or on active duty for training only, having considered the same, reports favorably thereon with the recommendation that it

do pass.

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The purpose of the bill is set forth in the House report thereon, which is made a part of this report, and reads as follows:

The Committee on Military Affairs, to whom was referred the bill (H. R. 3592) to further amend section 37 of the national defense act of June 4, 1920, as amended by section 2 of the act of September 22, 1922, so as to more clearly define the status of reserve officers not on active duty or on active duty for training only, introduced by Mr. James, having considered the same, report thereon with the recommendation that it do pass with the following amendments:

Line 5, add an “s” to the word "section"; strike out “356” and insert in lieu thereof “351, 352, 353, 356, and 360”.

Line 8, page 1, and line 1, page 2, strike out the phrase "or while on active duty for instruction or training only”.

Section 37 of the national defense act as amended, with this proposed amendment shown in italics, reads as follows:

“Sec. 37. Officers' Reserve Corps.-For the purpose of providing a reserve of officers available for military service when needed there shall be organized an Officers' Reserve Corps consisting of general officers of sections corresponding to the various branches of the Regular Army, and of such additional sections as the President may direct. The grades in each section and the number in each grade shall be as the President may prescribe. Reserve officers shall be appointed and commissioned by the President alone, except general officers, who shall be appointed by and with the advice and consent of the Senate. Appointment in every case shall be for a period of five years, but an appointment in force at the outbreak of war or made in time of war shall continue in force until six months after its termination. Any reserve officer may be discharged at any time in the discretion of the President. A reserve officer appointed during the existence of a state of war shall be entitled to discharge within six months after its termination if he makes application therefor. In time of peace a reserve officer must at the time of his appointment be a citizen of the United States or of the Philippine Islands, between the ages of twenty-one and sixty years. Any person who has been an officer of the Army at any time between April 6, 1917, and June 30, 1919, or an officer of the Regular Army at any time may be appointed as a reserve officer in the highest grade which he held in the Army or any lower grade. Any person commissioned in the National Guard and recognized as a National Guard officer by the Secretary of War may, upon his own application, be appointed as a reserve officer in the grade held by him in the National Guard. " No other person shall in time of peace be originally appointed as a reserve officer of Infantry, Cavalry, Field Artillery, Coast Artillery, or Air Service in a grade above that of second lieutenant. În time of peace appointments in the Infantry, Cavalry, Field Artillery, Coast Artillery, and Air Service shall be limited to former officers of the Army, officers of the National Guard recognized as such by the Secretary of War, graduates of the Reserve Officers' Training Corps, as provided in section 47b hereof, warrant officers and enlisted men of the Regular Army, National Guard, and Enlisted Reserve Corps, and persons who served in the Army at some time between April 6, 1917, and November 11, 1918. Promotions and transfers shall be made under such rules as may be prescribed by the President, and shall be based so far as practicable upon recommendations made in the established chain of command. So far as practicable reserve officers shall be assigned to units in the locality of their places of residence. Nothing in this act shall operate to deprive a reserve officer of the reserve commission he now holds. Any reserve officer may hold a commission in the National Guard without thereby vacating his reserve commission. Reserve officers while not on active duty shall not, by reason solely of their appointments, oaths, commissions, or status as reserve officers, or any duties or functions performed or pay or allowances received as reserve officers, be held or deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government of the United States.

This comprises section 2 of the act of September 22, 1922, in its entirety as referred to in paragraph (a), page 2 of the Secretary of War's letter. The act is amended by adding a new sentence.

The purpose of the proposed legislation, as embodied in H. R. 3592, is to remedy a condition occasioned by a ruling of the Attorney General that prevents reserve officers, who are attorneys at law, from practicing before the Treasury Department or from performing any other work that the law forbids officers of the Government to undertake.

The Attorney General has recently handed down an opinion, which supports the contention of the Treasury Department, that reserve officers are "officers of the Government” under the penal statutes of the United States. Unless remedial legislation is enacted it is feared that there will be many resignations from the Officers' Reserve Corps because of this restrictive construction. The bill has the approval of the War Department, other than that recommends the elimination of the clause in line 8, page 1, and line 1, page 2, as follows: “or while on active duty for instruction and training

only.” This amendment the committee adopted for the reasons as given by the War Department, as follows:

“The bill, H. R. 3592, defines the status of reserve officers so broadly that the well-established and desirable relation of these officers to our military law would be disturbed in time of peace. Thus reserve officers might be held ineligible to sit on military courts or boards in time of peace and the legality of the orders issued by reserve officers on active duty for training purposes might be successfully questioned.”

The War Department also suggested the striking out of the word "office" in line 6, page 2, and substituting the word "place", but the committee believed that the clause "office of trust” has a more general acceptation in legal terminology than “place of trust."

A further amendment is suggested by the War Department, which the committee adopts, to add certain sections of the statutes, which this legislation also affects. This provides for striking out section 356, in line 5, page 1, and inserting in lieu thereof sections 351, 352, 353, 356, and 360. The reason for this is as given by the War Department, as follows:

“The reference to section 356, title 10, United States Code, in lines 5 and 6, page 1, of H. R. 3592, is believed to be incomplete as the citation therein given evidently refers to section 2 of the act of September 22, 1922, in its entirety."

The committee recommends the passage of the bill with the two committee amendments for the reasons stated. The report of the War Department explaining the legislation is as follows:

JULY 30, 1929. Hon. W. FRANK JAMES, Chairman Committee on Military Affairs,

House of Representatives. DEAR MR. James: I am pleased to comply with your request of June 21, 1929, for a report on H. R. 3592, a bill to further amend section 37 of the national defense act of June 4, 1920, as amended by section 2 of the act of September 22, 1922, so as to more clearly define the status of reserve officers not on active duty or on active duty for training only.

The applicable provisions of existing law upon this subject appear in sections 37 and 38 of the national defense act of June 4, 1920, as amended, which establish the Officers' Reserve Corps and provide that all persons appointed therein shall be commissioned in the Army of the United States.

The proposed legislation, H. R. 3592, meets deficiencies in existing law which does not clearly define the civil status of reserve officers who are not on active duty or who are on active duty in time of peace. Reserve officers who are members of the bar are therefore in some doubt as to their status in litigation in which the Government may be involved. Many other reserve officers who are interested in the civil affairs of their own States are similarly in doubt as to their status under State constitutions many of which deny State offices to citizens who are officials of the Federal Government.

The War Department favors the enactment of legislation which will meet the deficiencies just described. While H. R. 3592, as drafted, would accomplish this end, careful study in the War Department seems to show that textual amendment as follows may be desirable: "A BILL To further amend section 37 of the national defense act of June 4, 1920, as amended by section 2

of the act of September 23, 1922, so as to more clearly define the status of reserve officers not on active duty or on active duty for training only

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 37 of the national defense act of June 4, 1920, as amended by section_2 of the act of September 22, 1922 (Fortysecond Statutes, page 1033; [section] sections 351, 352, 353, 356 and 360, title 10, United States Code), be, and the same is hereby, amended by adding thereto another sentence as follows: "Reserve officers while not on active duty, (or while on active duty for instruction or training only,] shall not, by reason solely of their appointments, oaths, commissions, or status as reserve officers, or any duties or functions performed or pay or allowances received as reserve officers, be held or deemed to be officers or employees of the United States, or persons holding any [office] place of trust or profit or discharging any official function under or in connection with any department of the Government of the United States.'

The reasons leading the War Department to suggest these changes are given below:

(a) The reference to section 356, title 10, United States Code in lines 5 and 6, page 1 of H. R. 3592, is believed to be incomplete as the citation therein given evidently refers to section 2 of the act of September 22, 1922, in its entirety.

(6) The bill H. R. 3592 defines the status of reserve officers so broadly that the well-established and desirable relation of these officers to our military law would be disturbed in time of peace. Thus reserve officers might be held ineligible to sit on military courts or boards in time of peace and the legality of the orders issued by reserve officers on active duty for training purposes might be successfully questioned.

It is believed that the amendments herein given would overcome the difficulties just mentioned while insuring the intent of the proposed legislation. The War Department therefore favors the enactment of the amended draft.

The proposed legislation will be without cost to the Government.

If any additional information from the War Department is desired, I shall be pleased to furnish it. Should hearings be held upon the proposed legislation. suitable witnesses will be designated to appear. Sincerely yours,

James W. Good, Secretary of War.

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SR-71-2-VOL 2-85

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