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missions and oath of office. There are substantial reasons for this construction of the word 'service.' The enrollment of a person for service in the Volunteer Army is only a declaration of his intention to enter such service. He may, or may not, actually enter the service by formal muster in; he may refuse to be mustered in after enrollment, and it has been decided by your and this Department that if he does so he does not thereby become a deserter. Again, if he is willing to enter the service, he may, for various reasons, be rejected by the officer in charge of the muster in, and if rejected he has never been actually or constructively in the service of the United States Army. In other words, to give a citizen the status of a United States soldier in the Volunteer Army his consent and that of the United States are both necessary, and the formality which marks this agreement of the two parties to the contract, and the commencement of the obligations thereunder, is the muster in, an old institution, which is a part of our military system we inherit from England. The muster in fixes the time of the commencement of the military service, and the muster out marks the termination of such service." (Words in parenthesis supplied.)

Hence, it may be presumed that Congress has used the word "service" in section 1 of the National Defense Act, supra, and in the Emergency Officers' Retirement Act, supra, in the sense that, as to "volunteer officers commissioned by the governors of States, their entry into the military service of the United States dates from their muster in." (23 Op., supra.)

Section 111 of the National Defense Act, supra, provides (p. 211):

"When Congress shall have authorized the use of the armed land forces of the United States, for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, under such regulations, including such physical examination, as he may prescribe, draft into the military service of the United States, to serve therein for the period of the war unless sooner discharged, any or all members of the National Guard and of the National Guard Reserve. All persons so drafted shall, from the date

of their draft, stand discharged from the militia, and shall from said date be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Volunteer Army, and shall be embodied in organizations corresponding as far as practicable to those of the Regular Army or shall be otherwise assigned as the President may direct. The commissioned officers of said organizations shall be appointed from among the members thereof, officers with rank not above that of colonel to be appointed by the President alone, and all other officers to be appointed by the President by and with the advice and consent of the Senate. Officers and enlisted men in the service of the United States under the terms of this section shall have the same pay and allowance as officers and enlisted men of the Regular Army of the same grades and the same prior service." (39 Stat. 211.)

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Mr. Silliman having been an officer commissioned by the Governor of Texas, and not having been mustered or drafted into the military service of the United States, is clearly not one of the "persons who have served as officers of the Army of the United States during the World War, other than as officers of the Regular Army * within the meaning of that language as used in the Emergency Officers' Retirement Act, supra, unless, as Mr. Silliman contends, he became an officer of the United States Army by reason of the fact that the National Guard Organization of which he was an officer, was recognized by the Militia Bureau of the War Department as being within the provisions of the Selective Service Regulations promulgated by the President on November 8, 1917, under the Selective Service Act of May 18, 1917, 40 Stat. 76. The regulations in question provide (Selective Service Rules, Part II, p. 40, Note 3):

"The words 'persons in the military and naval service of the United States,' as employed in said Act of Congress and in these Regulations, shall be construed as including all officers and enlisted men of the Regular Army, the Regular Army Reserve, the Officers' Reserve Corps, and the Enlisted Reserve Corps; all officers and enlisted men of the National Guard and National Guard Reserve recognized by the

Militia Bureau of the War Department; all officers and enlisted men of the Navy, the Marine Corps, and the Coast Guard; all officers and enlisted men of the Naval Militia, Naval Reserve Force, Marine Corps Reserve, and National Naval Volunteers recognized by the Navy Department; all officers of the Public Health Service detailed by the Secretary of the Treasury for duty either with the Army or the Navy; and any of the personnel of the Lighthouse Service and of the Coast and Geodetic Survey transferred by the President to the service and jurisdiction of the War Department or of the Navy Department."

The language" all persons in the military and naval service of the United States" appears only in section 4 of the Selective Service Act, supra, p. 78. Section 4 provides:

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"That the Vice President of the United States, the officers, legislative, executive, and judicial, of the United States and of the several States, Territories, and the District of Columbia, regular or duly ordained ministers of religion, students who at the time of the approval of this Act are preparing for the ministry in recognized theological or divinity schools, and all persons in the military and naval service of the United States shall be exempt from the selective draft herein prescribed * (Italics supplied.) (40 Stat. 78.) Hence, the Selective Service Regulations quoted above, so far as the Selective Service Act is concerned, were promulgated for the purpose of effectuating the provisions of section 4 thereof. The language of section 4 makes it clear that that section was designed to exempt certain persons and classes of persons from the operation of the Selective Service Act, supra. The rule is that where regulations are promulgated to effectuate the provisions of a statute, their scope and effect can not extend beyond the purpose of the statute. Morrill v. Jones, 106 U. S. 466. In the light of this rule, it is obvious that the Selective Service Regulations, supra, were not intended to and do not determine the military status of Mr. Silliman.

The War Department has declined to award the Victory medal to the members of the six cavalry regiments of the Texas National Guard. In a letter dated August 8, 1921 (House Report No. 217, p. 4, 68th Cong. 1st sess.), Honor

able J. M. Wainwright, Acting Secretary of War, advised Representative Harry Wurzbach (of Texas), member of the House Committee on Military Affairs, as follows:

"General Harbord has informed me of your recent conference with him, at which time you left in his possession the letter of Mr. W. B. Tuttle, of San Antonio, in which he asks that the Victory medal be awarded to Texas National Guard cavalry regiments. I have gone into the matter very carefully, and I beg to advise you that the present policy of the War Department has consistently been to restrict the issue of the Victory medal to officers and enlisted men who served on active duty in the Army of the United States between April 6, 1917, and November 11, 1918. It is clear that the Texas National Guard cavalry regiments never came into Federal service and therefore are not under the provisions of the award of our Great War medal."

Thereafter, on April 16, 1924, Congress enacted the following statute (43 Stat. 100):

"That the Secretary of War be, and he is hereby, authorized and directed to procure a bronze medal of appropriate design, with a bar and ribbon, together with a rosette or other device to be worn in lieu thereof, to be presented to each of the several officers and enlisted men of the two brigades of cavalry organized by the State of Texas, under authority from the War Department of date of December 8, 1917, who served therein prior to November 11, 1918: * * * Provided, This Act shall not be considered as conferring upon the members of said organizations the benefits of the War Risk Insurance Act or to confer a pensionable status to the members of said organizations, and that this Act shall not be deemed to constitute a precedent for the future granting of such rights."

This Act, and especially its proviso, indicates that Congress did not regard these Texas National Guard regiments as having been in the Army of the United States during the World War.

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For the reasons stated, it is my opinion that William C. Silliman is not one of the persons who have served as officers of the Army ** of the United States during

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the World War, other than as officers of the Regular Army * *" within the meaning of that language as used in the Emergency Officers' Retirement Act of May 24, 1928, and hence is not entitled to the benefits of that Act. Respectfully,

supra,

WILLIAM D. MITCHELL.

TO DIRECTOR, UNITED STATES VETERANS' BUREAU.

PENSION CLAIM OF SIDNEY FLOYD LOVE

Sidney Floyd Love, an enlisted man in the Navy, was detailed as night master-at-arms in the United States naval hospital, Great Lakes, Ill., with tour of duty from 9 p. m. to 8 a. m., and liberty from 1 p. m. to 8.30 p. m. On July 12, 1926, he checked out on liberty at 6 p. m., and while returning to his post of duty on his own motorcycle between 8 and 8.30 p. m., he was caught between two automobiles and his right ankle crushed between the running board of one of the automobiles and his motorcycle. Held, upon the facts stated and assumed, that he is entitled to a pension.

or

The requirement of section 4694 of the Revised Statutes that an applicant for a pension in the naval service must, at the time his injury is sustained, be “at some naval station * hospital," is satisfied if he is regularly reporting for and discharging his assigned duties there, and his right to a pension is not defeated by reason of the fact that he was injured while absent on a pass or permission of such short duration as not to interfere with such duties.

The fact that Love's injury was sustained while he was outside of the boundaries of the naval station or hospital on a few hours' liberty does not in itself necessitate the conclusion that he was not injured "in the line of duty" or not entitled to a pension.

DEPARTMENT OF JUSTICE,

January 6, 1930.

SIR: I have the honor to comply with your request for an opinion "as to whether the views expressed by former Attorney General Palmer in his opinions of August 21, 1919, and June 2, 1920 (32 Ops. Atty. Gen. 12, 193), on the meaning of the expression in line of duty,' as used in the War Risk Insurance Act of June 25, 1918 (40 Stat. 609, 611), should be applied in the adjudication of pension claims where that term is involved." While your letter states the question in the general terms above quoted, you submit with

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