Engineers, United States Army, and that they thereupon received on War Department stationery in response to this application an appointment in the Russian Railway Service Corps "organized under the authority of the President of the United States" and signed by the Adjutant General of the Army. Having received this appointment, plaintiffs then reported for duty, and performed their duties well and faithfully in the service and uniform of the United States in Siberia. The Court will not review the other indicia of Army service but refers to earlier mentioned undisputed facts.
At the time of the completion of their service, the plaintiffs received letters of acceptance of their resignations from the Russian Railway Service Corps, again on War Department stationery, file 201 (the official file designation used exclusively for Army officers), and signed by the Adjutant General of the Army. To hold as the Government urges, that the plaintiffs were dealing with persons whose representations could not bind the Government, is completely contrary to the established facts.
It is plain that a relationship between these plaintiffs and the United States did exist as a result of which these plaintiffs subjected themselves to orders of those in command and performed certain military duties incident to the mission of the A.E.F., Siberia. In return for this, the United States incurred certain obligations. It provided pay and allowances, regulation Army uniforms, authorized the wearing of appropriate military insignia and ultimately it terminated this status by accepting the resignations of plaintiffs. The question is, are they entitled to an Honorable Discharge?
In a series of cases involving World War I soldiers to whom notices to report for induction were sent, the courts have held that such a notice presumably is received and if the individual fails to report, he is thereby subjected to prosecution.
A corresponding obligation is enforced insofar as the Government is concerned. If the soldier reports for service even though he does not serve as a soldier by reason of hospitalization, he is still eligible for the usual veterans benefits, including veterans preference. Hurley v. Crawley, 60 App. D.C. 245, 247, 50 F.2d 1010 (1931). Even when there is some question as to the regularity of the commissioning of the officer, if the officer actually served, he is entitled to all the emoluments of office, including an Honorable Discharge, assuming the circumstances of his service do not preclude the issuance thereof.
Information on the basis of which such a discharge is withheld must be revealed. Van Bourg v. Nitze, 128 U.S. App. D.C. 301, 388 F.2d 557 (1967). Here, there is no suggestion of any impropriety in the service of these plaintiffs. Cf. Beard v. Stahr, 370 U.S. 41, 82 S. Ct. 1105, 8 L. Ed. 2d 321.
An irregularity in the commissioning or the promotion of an officer neither destroys nor impairs his right to the prescribed pay, including longevity or other emoluments of office. The Court of Claims in Bennett v. United States, 19 Ct. Cl. 379 (1884), was confronted with the question of the alleged irregularity in the commissioning of Captain Bennett. He had served in the Civil War both as an enlisted man and as an officer. Following wartime service his resignation was accepted, but thereafter the acceptance of the resignation was rejected and he was ordered back to active duty. Pursuant to orders, he reported for service and the question arose following final termination of his service some years later as to the rate of his pay based on his longevity as an officer under applicable statutes as well as whether actually, because of the alleged irregularity in his orders, he could be considered as an officer. The Court of Claims set forth these principles:
In our opinion the word 'service' as used in these acts means actual service performed under color of office or other authority, without regard to any defects which might be found in the legal title of the claimant to the office or position in which he served.
It is a well-known fact that, in times of war especially, enlisted men perform service in many cases before their enlistment is fully completed by taking the required oath and being mustered in. They are prevented by necessary delays incident to the service, and without fault of their own, from consummating their technically legal enlistment, but actual service they enter upon at once. It cannot be, we think, that every officer who has been an enlisted man is required to prove a full, complete, and legal enlistment for the whole time he actually served as such, in order to have that time credited to him for longevity pay, nor that every officer is to be curtailed in the computation in the time of his service by informalities or irregularities in his appointment which do not affect the service itself. The reward which the statute is intended to give is for long-continued actual service, and not as a regular salary for the tenure of office. In that view it matters not whether the officer serves as such de jure or de facto. In either case he comes within the spirit and the meaning, and, we think, within the letter of the law. 19 Ct. Cl. at 387.