UB 500 .5 1917a Copy 1 / LIBRARY OF CONGRESS Glass JLl^3_ Bonk » q \ °i IH DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY COMPRISING BULLETINS, WAR DEPARTMENT, 1917 Nos. 26, 34, 42, 49, 54, 67, 72, and 75, TOGETHER WITH DIGESTS OF CERTAIN OTHER OPINIONS PUBLISHED IN OPINIONS OF JUDGE ADVOCATE GENERAL, VOL. 1, 1917. APRIL 1, 1917, TO DECEMBER 31, 1917 WASHINGTON GOVERNMENT PRINTING OFFICE 1920 }lE> t mjcu War Department Document No. 976 Office of The Adjutant General 0. Of M>. WAR DEPARTMENT, Washington, March 1, 1920. The following bulletins of the War Department, 1917, Nos. 26, 34, 42, 49, 54, 67, 72, and 75, together with digests of certain other pub- lished opinions, are republished for the information of the service in general. [016.2, A. G. O.] By ORDER OF THE SECRETARY OF WAR : PEYTON C. MARCH, General, Chief of Staff. Official : P. C. HARRIS, The Adjutant General. TABLE OF CONTENTS. Page. Bulletin 26, W. D., 1917 5 Bulletin 34, W. D., 1917 .— 15 Bulletin 42, W. D., 1917 29 Bulletin 49, W. D., 1917 37 Bulletin 54, W. D., 1917 45 Bulletin 67, W. D., 1917 53 Bulletin 72, W. D., 1917 , 77 Bulletin 75, W. D., 1917 98 Other miscellaneous opinions 112 Index 133 NOTE. Numbers and letters appearing in captions refer to sections in Dig. Ops. J. A. G. 1912. 4 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY. BULLETIN 26. OPINIONS OF THE JUDGE ADVOCATE GENERAL. AVIATION PAY : Officers on balloon duty. Upon the question raised as to whether or not officers required to make regular and frequent aerial flights in balloons are entitled to extra pay authorized by section 13 of the national defense act of June 3, 1916: Held, that such officers are entitled to the extra pay authorized by the statute; that the act of July 18, 1914 (38 Stat. 514), creating the aviation section and prescribing the duties of the same expressly charged that section with the duty " of operating or supervising the operation of all military aircraft, Including balloons and aeroplanes^ that in authorizing the increase of pay to officers on duty requiring them "to participate regularly and frequently in aerial flights" the act made no distinction as to the kind of aerial craft; and that the national defense act, while dealing with the organization, com- pensation, etc., of the aviation section, leaves in force the provision of the act of July 18, 1914, prescribing the duties of that section, and, like the act of Jufy 18, 1914, makes no distinction with respect to the character of aerial craft ; but the law requires that the officer, while receiving this pay, shall be on duty requiring him to participate regularly and frequently in aerial flights, having regard to the nature of the craft in which such flights are taken ; and this must be the real duty of the officer under his assignment. Ops. J. A. G. 72-181, Apr. 3, 1917. DESERTERS : National Guard in Federal service. The question was presented whether deserters from the National Guard in Federal service continue liable to arrest after muster out of Federal service of all the National Guard; and if so, whether rewards are payable for such arrests. Held, that the crime of desertion being complete upon breach of the obligation to serve, the continued amenability is in no way re- lated with continuance in the service of the organization from which the deserter absented himself, and that therefore deserters from the National Guard in Federal service continue amenable to arrest until discharged or until the running of the statute of limitations, and such delinquents are deserters from the Army within the meaning of the statutes authorizing payment of rewards. Ops. J. A. G. 26-200, Mar. 26, 1917. 5 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. ENLISTED MEN : Absence without leave after revocation of furlough. A letter revoking the furlough of an enlisted man was sent to the place designated by him as his address but failed of delivery because he had removed therefrom without notifying his proper superiors. Later a friend notified him that he had been dropped as a deserter. He paid no attention to this, but reported back at the expiration of his furlough. Ilelch that having been put on inquiry and having omitted to in- quire he was chargeable with all the facts which by proper inquiry he might have ascertained, and that he should therefore be regarded as having been absent without leave from the date he was apprised that he had been dropped as a deserter until his return to military control. Ops. J. A. G. 2-135, Apr. 4, 1917. FIELD OFFICERS: Detached service. A field officer of Infantry, who served as judge advocate of the punitive expedition, inquired whether such service should be re- garded as detached service or duty with an organization within the meaning of existing detached service legislation relating to field officers. Held, that as at least two companies of Infantry entered into the composition of the command with which this officer was serving he was, under a recent decision of the Secretary of War overruling the opinion of this office of January 3, 1917, entitled to have the period in question credited as service with an organization. Ops. J. A. G. 6-124.3, Apr. 5, 1917. GOVERNMENT PROPERTY: Unlawful purchase of. A report was submitted with reference to the failure of the Federal grand jury, Del Rio, Tex., to find indictments in the case of — (a) A saloon keeper wearing an olive-drab sweater and an olive- drab shirt, both Government issue, and (b) A ranchman having in his possession one Colt's automatic pistol, caliber .45, Government issue, with indications thereon of an attempt to obliterate the Government marks. Section 35 of the Penal Code prescribes a penalty for knowingly purchasing or receiving in pledge from any soldier, etc.. military property, including arms and clothing; and section 1242, Revised Statutes, forbids the sale, etc, of such property and prescribes that k ' the possession of any such property by any person not a soldier or officer of the United States shall be prima fad, evidence of such sale," etc. Held, that inasmuch as the articles bore plain indications that they were articles of Government issue, the sale of which is forbidden by law, the possession of them, in connection with evidence showing their issue and that they were missing, should be regarded, in view of the provision of section 1242, Revised Statutes, as prima facia evidence of the unlawful sale, sufficient to warrant an indictment. Held farther, that as, under the law, a finder of goods who appro- priates them to his own use where there is a reasonable clue to owner- ship thereof is guilty of larceny (25 Cyc. 35-38) ; and as the articles DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 7 in these cases bore plain indications that they were articles of Gov- ernment issue, the possession of the same under circumstances show- ing an intent to appropriate them to the use of these parties should be regarded as prima facie evidence, sufficient to warrant the finding of indictments for larceny thereof. Advised, therefore, that a competent officer be instructed to confer with the United States attorney with a view to the presentation of such evidence as will be required to secure indictments by the grand jury in such cases. Ops. J. A. G. 80-030, Apr. 14, 1917. LEASE OF GOVERNMENT PROPERTY: Revocation of. An electric company holding a lease of a Government electric power plant applied for a revocation of its lease, to take effect seven months prior to its expiration, for the reason that it had disposed of it« plant to another company, and had therefore discontinued its use of the Government plant. The lease contained a provision for its annulment or revocation at any time by the Secretary of War. It appeared that no advantage would come to the United States through the revocation of the lease, as no use would be made of the property, and also that there was no objection to its revocation, other than the loss of revenue to the Government by reason thereof. Held, that the provision in the lease for its revocation at any time by the Secretary of War was intended to be exercised in the in- terests of the Government, and not for the purpose of relieving the lessee from its obligation under its contract, and that the Secre- tary of War was without authority to grant the revocation applied for. as such action on his part would amount to a surrender of propertv rights of the Government. Ops. J. A. G. 80-722.4, Apr. 14, 1917. LINE OF DUTY: Death occurring in duty status. An officer on duty status was killed while engaged in normal and proper recreation. The Pension Bureau refused his widow a pen- sion. Query : Did the death occur in line of duty within the adminis- trative determination of the War Department ? The Pension Bureau interprets the words "death due to military service in line of duty." as they are used in the pension law, as admitting only deaths where an act of military duty is related to the death as an effective cause. Congress itself has interpreted the words to refer only to the status of the deceased at time of death. The War Department adopts the latter construction and has consistently construed casualties as due to military service in line of duty wherever the person suffering them was on a duty status under competent orders and engaged in occupation or recreation proper and normal to persons in that status. Tested by this rule, held, that this casualty was due to military service in line of duty. It is unforunate that the construction of this law is not consistent in both departments, but, after careful consideration, this office can concede nothing of its own view of the meaning of these words. Ops. J. A. G. 42-520, Mar. 24, 1917. 8 DIGEST OP OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. NATIONAL GUARD RESERVE: Discharge from Reserve to permit en- listment in National Guard. It being proposed to discharge National Guard reservists with a view to their immediate reenlistment in regiments of the National Guard : Held, that without considering how far the President legally c(m go in authorizing wholesale discharges from the National Guard Reserve, it is enough to say that the national defense act con- templates a well-defined function for the National Guard Reserve and its continuance for the performance of that function; that it would defeat the purpose of the law to authorize discharges on the considerations mentioned; and that in the absence of any showing of convenience to the Government such discharges ought not to be authorized. Ops. J. A. G. 58-052, Apr. 3, 1917. NATIONAL GUARD RESERVE: Transfer to, of administrative staffs. The Secretary of War having approved the opinion of this office that certain officers of the administrative staffs of the several States did not constitute a part of the National Guard as organized under the national defense act, a further opinion was desired on the ques- tion whether such officers could be transferred to the National Guard Reserve under section 77 of the national defense act of June 3, 1916, which provides that — " Officers of said guard rendered surplus by the disbandment of their organizations shall be placed in the National Guard Reserve." Held, that this section has no application to officers appointed for State administrative purposes and who have not been appointed to offices having any place in the organization of the units actually maintained by the respective States. Held further, that the authority conferred by section 78 of the national defense act for the organization of the National Guard Re- serve " in each State," etc., to " consist of such organizations, officers and enlisted men, as the President may prescribe," contemplates a reserve to the active organizations maintained in the State, and that it can therefore have no officers other than those of the character pro- vived for the active organizations maintained in the particular State. Ops. J. A. G. 58-213, Apr. 12, 1917. PHILIPPINE ISLANDS: Acts of Congress relating to rifle clubs not ap- plicable to. In connection with steps taken to organize a civilian rifle club at Manila, P. I., the question was presented whether the provisions of the acts of Congress of March 3, 1905 (33 Stat. 986), and April 24, 1914 (38 Stat, 370), relating to the sale and issue of rifles, ammuni- tion, etc., to rifle clubs were applicable to the Philippine Islands. Held, that neither one of the acts mentioned is applicable to the Philippine Islands, it being expressly provided in the Philippine organic act that section 1891 of the Revised Statutes, which declares that— " The Constitution and laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories and in every Territory hereafter organized as elsewhere within the United States " — xhall not apply to the Philippine Islands. Ops. J. A. G. 80-140, Apr. 13, 1917. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 9 PROVISIONAL SECOND LIEUTENANTS: Discharge prior to expiration of statutory provisional period. The discharge of a provisional second lieutenant after six months' service as such was asked on the ground that he lacked the mentality requisite for an officer and had demonstrated that he could never reach the standard that should be required of an officer; thus pre- senting the question whether the provisional appointment of a second lieutenant might be terminated on account of failure to demonstrate suitability and fitness for permanent appointment prior to the termi- nation of the two years mentioned in section 23 of the national- defense act. Held, that the word " provisional " occurring in that portion of section 23 of the national defense act reading : " Hereafter all appointments of persons other than graduates of the United States Military Academy to the grade of second lieu- tenant in the Eegular Army shall be provisional for a period of two years, at the close of which period such appointments shall be made permanent if the appointees shall have demonstrated, under such regulations as the President may prescribe, their suitability and moral, professional, and physical fitness for such permanent appoint- ment ; but should any appointee fail so to demonstrate his suitability and fitness, his appointment shall terminate " — • relates only to the alternative action permitted at the end of the period designated and carries no authority to terminate the appointment within that period ; that the terms of the section quoted plainly allow to the provisional appointee a period of two years in which to acquire and demonstrate suitability and fitness ; and that during that period the provisional appointee may be removed from office only by the same means by which a permanent officer mav be removed. Ops. J. A. G. 64-213.1, Mar. 21, 1917. REGULAR ARMY RESERVE: Grade of first class private, Engineer Corps. A company commander of Engineers inquired whether he was cor- rect in placing on the rolls as privates the names of reservists re- called to the colors for active duty and assigned to his company, when such reservists had been furloughed as first class privates, or if he should have carried them as attached privates,, first class, and assigned them to the first vacancies in that grade. His doubt was due to the fact that section 11 of the national defense act of June 3, 1916, specifies as a component part of an Engineer company, first class privates and privates, whereas the old law (sec. 11 of the act of Feb. 2, 1901) prescribed first class privates and second class privates. Held, that it evidently was not the intention of Congress by the change in the designation of the two grades mentioned to abolish the old grades and create new ones, since the pay remains the same, and section 28 of the national defense act, which declares that " hereafter the monthly pay of men of certain grades of the Army created in this act shall be as follows, namely," does not include the grade of private, first class, Engineer Corps, nor private, Engineer Corps, and that therefore the reservists referred to by the company commander should have been carried on the rolls as privates, first class, Engineer Corps, and paid as such, in accordance with the pro- 10 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. visions of paragraph 86 of the Regulations for the Regular Army Reserve, 1916. Ops. J. A. G. 6-310, Apr. 2, 1917. REGULAR ARMY RESERVE : Grade of wagoner of Cavalry. An enlisted man who was furloughed to the Regular Army Re- serve in the grade of wagoner of Cavalry was, upon being recalled to the colors for active duty by the President's summons of July 18, 1916, taken up and carried on the rolls as private, under the view that the grade of wagoner of Cavalry was abolished by the national- defense act of June 3, 1916. Held, that the grade of wagoner of Cavalry was not abolished by the national defense act, but was preserved in the supply company created for each regiment of Cavalry as provided by section 18 of that act, and that therefore the soldier under consideration was en- titled to be carried on the rolls in the grade of wagoner of Cavalry and paid as such, in accordance with paragraph 86 of the Regulations for the Regular Army Reserve, 1916. Ops. J. A. G. 6-310, Mar. 29, 1917. TRAVEL ALLOWANCES : Mutual transfer of officers. A first lieutenant, unassigned, was attached temporarily to a regi- ment in the Canal Zone for duty. After receiving a regular assign- ment and orders to join his regiment in the States, he arranged a mutual transfer with an officer of the regiment to which he had been temporarily attached in the Canal Zone, and in pursuance with the request of the two officers orders were issued announcing the transfers, and it was directed therein that " each officer will proceed to join his regiment to which transferred." The officer who was thus required to join his regiment in the States protested against having to make the change at his own expense for transportation, under the view that the other officer would have been entitled to travel allow- ances and that as he merely took the other officer's place he was en- titled to travel allowances. Held, that the department could not change the fact that the transfer of this officer was in compliance with his own request and for his own convenience; that it was proper, if not essential, to state in the order of transfer that the change was the result of a transfer requested by the two officers, and this being so, it would clearly have been contrary to the specific provisions of Army Regulations 1297 to specify in the order that the travel was necessary in the military service, and that, therefore, under the regulations the officer was not legallv entitled to travel allowances. Ops. J. A. G. 91-210, Apr. 4, 1917. DECISIONS OF THE COMPTROLLER OF THE TREASURY. APPROPRIATIONS: Reimbursement for services rendered by one execu- tive department for another. In an emergency a dredge of the Engineer Department of the Army rendered service in rescuing a barge of the Public Health Serv- ice of the Treasury Department, which had been sunk in a harbor DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 11 during- a gale and which lay in a position endangering the station buildings. The Engineer Department submitted to the Treasury De- partment a voucher for reimbursement of the expenses incurred, including pay and subsistence of dredge crew for two days, and for coal, oil, depreciation of dredge, etc., amounting to $179.96. Held, that while in general where the agencies of one executive department of the Government renders service to another such de- partment and for its particular benefit, reimbursement to the depart- ment rendering the service should be made, yet where such services are performed in an emergency for the protection of Government property and hence for the common good of the Government rather than for the benefit of the particular department aided, no such reimbursement should be made. Comp. Treas. Mar. 3, 1917. COAST ARTILLERY BANDS: Grade of mess sergeant. The following questions were presented for decision: ( a ) May band sergeants of Coast Artillery bands be detailed as mess sergeants? (b) If band sergeants may be so detailed, are they entitled to additional pay at the rate of $6 per month? (c) Or, is it the intention of the law that the 263 mess sergeants authorized in the act of June 3, 1916, shall suffice for all organiza- tions of the Coast Artillery Corps? Section 20 of the national defense act of June 3, 1916, provides that— " The Coast Artillery Corps shall consist of * * * ; 263 mess sergeants: * * *; and 18 bands, organized as hereinbefore pro- vided for the Engineer band. * * * '' The plan of organization of the Engineer units is provided for in se< tion 11 of the same act. The grade of mess sergeant is included in each company, but not specified for the band organization. Held, that the organization of each of the 18 bands of the Coast Artillery Corps being legally the same as that of the Engineer band, the grade of sergeant is not included, since this grade is not included in the Engineer Corps as prescribed by statute. It is the intention of that law that the 263 mess sergeants authorized in section 20 of the act of June 3, 1916. shall suffice for all organizations of the Coast Artillery Corps, and band sergeants of said ( orps may not be detailed as mess sergeants. Comp. Treas. Apr. 10, 1917. ENLISTED MEN: Aid to dependent families. The following questions were submitted for decision: (a) Are the families of enlisted men belonging to National Guard organizations which were in the service of the United States under the President's call of June 18. 1916, and which were mustered out of said service, entitled to the benefits of the act of August 29, 1916, as amended, while in the service of the United States under the Presi- dent's call of March 25, 1917? (b) Are the families of enlisted men belonging to organizations brought into the Federal service under the President's call of June 18, 1916, still entitled to the benefits of the act of August 29, 1916, as amended, where such organizations remain continuously in service 12 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. under said call pursuant to the orders suspending the original or- ders for their muster out? (c) Are the families of enlisted men of the Regular Army entitled to the benefits of the act of August 29, 1916, as amended, so long as there remain in the service of the United States any organization of the National Guard under the call of June 18, 1916, or do the benefits of the statutes extend to include such period as National Guard or- ganizations mav be in the service of the United States under the call of March 25, 1917? He7d, that the legislation for the relief of dependent families of sol- diers (act of Aug. 29, 1916, as amended by the act of Sept. 8, 1917, 39 Stat. 649, 801) was enacted with reference to enlisted men belonging to National Guard organizations brought into the service under calls made by the President prior to such legislation, and to enlisted men of the Regular Army in active service during the continuance of the National Guard service under such calls, and to none others; and that in order that those organizations responding to the call of March 25, 1917, and those retained in service, as specified in that call, may be on an equal footing, so far as family benefits are concerned, it must be held that they are all in the service under the call of March 25. 1917, those organizations which had not been discharged but were re- tained in the service having ceased to be in the service under the call of June 18, 1916, from and after March 25, 1917. All three questions should, therefore, be answered in the negative. The present crisis in national affairs has brought on new conditions, and Congress being in session at this time if it desires to continue the payment for the support of the families of enlisted men of National Guard organizations brought into the service or continued in the serv- ice under the President's call of March 25, 1917, and of certain enlisted men of the Regular Army, legislation expressive of such desire should be enacted at this time. There will thus be an oppor- tunity to place all on an equal footing. Comp. Treas. Apr. 9, 1917. PURCHASE OF SUPPLIES: Envelopes for headquarters of military de- partments. The acts of January 12, 1895 (28 Stat. 624), and June 26, 1906 (34 Stat. 476), are to the general effect that envelopes for the use of the executive departments of the Government and all branches of the service coming under their jurisdiction are to be purchased exclu- sively by the Postmaster General upon requisitions of such executive departments, etc. In a decision of July 22, 1913 (20 Comp. Dec, 34), the Comptroller of the Treasury held that the act of June 26, 1906, precluded the purchase of envelopes from the appropriation " Con- tingencies, headquarters of military departments, etc.," otherwise than as authorized by that act, and that the discretion conferred upon division or department commanders in that appropriation with re- spect to expenditures could not be regarded as authorizing a purchase otherwise prohibited by law. Commencing with the fiscal year 1915, the appropriation " Contingencies, headquarters of military depart- ments, etc.," named stationer among the objects for which the ap- propriation might be expended, and the question was presented whether the inclusion of stationery among such objects operated as DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 13 a repeal pro tanto of the prohibitory statutes respecting the officer authorized to purchase envelopes. Held, that the fact that stationery was named in the appropriation among the objects of authorized expenditure thereunder merely in- creased specifically the number of heads of lawful expenditures and had no effect whatever on the manner in which such expenditures were to be made, and that, therefore, expenditures for envelopes of headquarters of military departments, etc., of the Army are still to be made in the manner indicated bv the acts above cited. Comp. Treas. Jan. 29, 1917. " . REGULAR ARMY RESERVE: Forfeiture of mobilization and active re- serve pay by court-martial sentence. In the case of an enlisted man of the Regular Army Reserve called to the colors for active service who was convicted by general court-martial and sentenced to be dishonorably discharged " and to forfeit all pay and allowances now due and to become due while under confinement under this sentence," Held, that the sentence operated to forfeit not only the unpaid pay for active service which became due and payable monthly and the balance, if any, due the soldier on account of clothing and other allowances, but included as well the amounts which had become due the soldier upon his reporting for active duty in response to the President's summons, known as mobilization and reservist's pay, which had not been paid him at the time of his conviction and sen- tence, this view being in consequence with the decision of the Supreme Court in the Landers case (92 U. S. 80), in which it was held — " The bounty which the petitioner claimed was included in the allowances forfeited. Under the term ' allowances ' everything was embraced which could be recovered from the Government by the soldier in consideration of his enlistment and services, except the stipulated monthly compensation designated as pay." In the instant case the soldier became entitled under section 31 of the act of June 3, 1916, upon reporting for duty and being found fhysically fit for service, to the sum of $3.07 as reservist's pay, being 2 per month for period from June 3, 1916, to July 18, 1916, and, under the provisions of section 32 of the same act he became entitled to $15.30 as mobilization pay, being $3 per month for the entire period of his furlough from February 16, 1916, to July 18, 1916, inclusive. Held, that so much of paragraph 86 of the Regulations for the Regular Army Reserve, published August 15, 1916, as specifies $5 per month as the rate of mobilization pay up to June 2, 1916, is invalid. Comp. Treas. Apr. 20, 1917. DECISION OF THE COMMISSIONER OF PENSIONS. EIELD CLERKS: Right to draw pension while serving as such. The question was submitted to the Commissioner of Pensions whether the acceptance of the position of field clerk (act of Aug. 29, 1916, 39 Stat. 625) by a civil service clerk receiving a pension would operate to cut off his pension in view of the War Department's ruling 14 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. that field clerks are part of the Military Establishment and not subject to the civil service rules and regulations. Held, that since the appointment of such clerks is vested in the Secretary of War, they must be deemed as officers, and whether they be designated in military parlance as commissioned officers or non- commissioned officers is immaterial so far as the pension laws are concerned, the established rule being that one who serves under a commission or appointment from the Secretary of War is a person in the military service for pensionable purposes (/Stout case, 19 P. D., 149) ; and that, therefore, under section 4724, Revised Statutes, and the act of March 3, 1891 (26 Stat. 1082), no pension can- lawf ulry be paid to a person holding the position of field clerk covering the period of such service. Advised, however, that this ruling is sub- ject to approval or modification of the Secretary of the Interior upon the appeal of any pensioner from the action of the Pension Bureau in dropping his name from the pension rolls because of his appointment and service as a field clerk under the act of August 29, 1916. Commissioner of Pensions, Apr. 11, 1917. BULLETIN 34. OPINIONS OF THE JUDGE ADVOCATE GENERAL. CLOTHING, MILITIA: Approval of survey. In order to facilitate action on the property account of militia authorities of Hawaii, it was proposed to delegate to the command- ing general, Hawaiian Department, authority to act for the Secre- tary of War on reports of survey for the Territory of Hawaii. Sec- tion 87, act of June 3, 1916, provides that—" if it shall appear to the Secretary of War from the record of survey that the property was lost, damaged, or destroyed through unavoidable causes, he is hereby authorized to relieve the State or Territory or the District of Colum- bia from further accountability therefor," but that if damaged through negligence, the money value of the property is to be charged to the State, etc., and " to be paid from State, Territory, or District funds, or any funds other than Federal." Upon the question whether the proposed authority could be delegated, Held, that the statute confers upon the Secretary of War a dis- cretionary or judicial authority, not a ministerial one, and that within well-settled rules of law such authority can not be delegated as pro- posed; and that the action should be limited, therefore, to authoriz- ing the examination of such reports by the department commander, the same to be forwarded to the War Department with his recom- mendation for final action by the Secretary of War. Ops. J. A. G. 58-314, May 8, 1917. CONTRACT : Correction of error in bid. Upon the question raised as to the legality of accepting the bid of the lowest bidder for certain electric installation- as corrected by letter submitted following the opening of bids, it appearing that the bid as originally submitted was so much lower than the other bids as to indicate a mistake ; that upon inquiry it was found that the wrong totals had been given for the transmission line; and that the bid as corrected Avas about 25 per cent lower than the next higher bid ; Held, that the fact that the error occurred as claimed being clearly established, there is no legal objection to accepting the bid as cor- rected; and that such action is in accordance with precedents cited m Dig. Ops., J. A. G. 1912, pp. 330 and 331. Ops. J. A. G. 76-240, May 7, 1917. CONTRACT: Percentage basis. Upon the question whether or not contracts can legally be made for such medical supplies as gauze dressings on the basis of cost of producing the article plus a reasonable profit; Held, that in view of the existing emergency the statutes requir- ing advertising in the letting of such contracts are not operative, and that there can be no legal objection to such a contract as is pro- posed. 15 16 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. Further remarked, that the proposed method of making contracts, on the basis of cost plus a percentage, is being applied under the existing conditions of emergency by the War and Navy Departments not onlv in procuring supplies but in construction work. Ops. J. A. G. 76-334, May 3, 1917. DISCHARGE : Under proper name when service was under assumed name. A soldier who served under an assumed name in one enlistment during the Philippine insurrection and was honorably discharged therefrom, but was dishonorably discharged from a subsequent en- listment, requested a discharge under his true name from his first enlistment. Held, that the act of August 22, 1912, prescribing " that the Secre- tary of War and the Secretary of Navy be, and they are hereby, au- thorized and required to issue certificates of discharge or orders of acceptance of resignation, upon application and proof of identity, in the true name of such persons as enlisted or served under assumed name, Avhile minors or otherwise, in the Army or Navy during any war between the United States and any other nation or people and were honorably discharged therefrom," is mandatory, and is appli- cable to the cases of all soldiers who served under assumed names during the Philippine insurrection and were honorably discharged; and that the character of the separation of the soldier from the service after a subsequent enlistment is a distinct matter which does not affect the duty of the Secretary of War will 1 respect to the pre- vious enlistment from which the soldier ,ws | norably discharged and to which the statute applies withov. . ncation. Ops. J. A. G. 28-521, Apr. 28, 1917. - ENLISTED MEN: Making good time lost. The question was presented whether, in view of the provisions of the new 107th Article of War, an enlisted man is required to make good time lost prior to March 1, 1917. which he was not re- quired under the old law to make good. Held, that the 107th Article of War, being a reenactment of exist- ing legislation on the subject of making good time lost by enlisted men, with the added provision that it applies to all existing enlist- ments, does not require the making good of any time lost prior to March 1, 1917, which was not required by the old law to be made good, but does require all time lost on and after March 1, 1917, due to the causes mentioned in the 107th Article of War, to be made good, regardless of the date of enlistment; in other words, that the new law differs from the old in that while the old law was held not to operate upon enlistments entered into prior to the enactment of such law, the new article of war, in addition to requiring fulfillment of all past obligations incurred under the old law, applies to all time lost in future, commencing March 1, 1917, due to the causes men- tioned in the article, in all enlistments. Ops. J. A. G. 34-052, Apr. 30, 1917. EIELD CLERKS: Enlistment in National Guard. Upon inquiry (a) whether Army field clerks and field clerks, Quartermaster Corps, are exempt from militia duty, and (b) whether their enlistment in the National Guard is prohibited — DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 17 Held, as to (a), that since Army field clerks and field clerks, Quar- termaster Corps, now occupy a status in the military service of the United States, they come within the provisions of section 59 of the national defense act, which exempts " persons in the military and naval service of the United States" from militia duty, and therefore are exempted from such duty. Held, as to (b), that the National Guard is plainly designed by the national defense act to be an effective force and to supplement the permanent military forces of the Nation, and that it is plainly the intent of the law governing its organization that its members shall be available for any service which it may be called upon to perforin, and not be prevented from performing such duty by any paramount obligation in the permanent military force. This intent is clearly indicated by the exemption of persons in the military and naval service of the United States from militia duty, above cited. That special authority of law is necessary to justify the occupancy of status in both the Regular Army and the National Guard by the same person is indicated by the authority expressly conferred by -cct ion 100 of the national defense act for officers of the Regular Army to accept commissions in the National Guard with the permis- sion of the President and terminable at his discretion. There is no such authority for any persons in the active military service of the United States, other than officers, to occupy such dual status. There- fore, the effect of the law governing the organization and maintenance of the National GMfcd is to render a status in the active permanent Military Establish \r incompatible with a status in the National Guard. The. enlistm v,< iiArmy field clerks and field clerks. Quar- termaster Corps, is the • >re, in effect, prohibited by law. Ops. J. A. G. 58-051, Mar. 27, 1917. FIELD CLERKS: Heat and light allowance. Upon request for reconsideration of the Judge Advocate General's opinion of February 8, 1917 (Bui. 15, W. D. 1917, p. 5), the follow- ing reply was made : k * This office has very carefully reconsidered the question whether field clerks are entitled to fuel and light allowances in public quar- ters, and I regret to say that I find in the comptroller's decision of March 9, 1917, referred to by Mr. G. W. Cooke, field clerk, Quarter- master Corps, nothing to warrant changing the views of this office on the subject. (Bui. 15, W. D. 1917, p. 5.) " In his decision of March 9, the comptroller held that the pro- vision of the act of June 3, 1916, giving pay clerks, Quartermaster Corps, the rank, pay, and allowances of a second lieutenant, oper- ated to give the pay clerks of the Marine Corps the pay and allow- ances of a second lieutenant of the Army. The reasons therefor will not, in my opinion, support Mr. Cooke's view that the same decision will warrant the conclusion that field clerks of the Army are en- titled to the allowances of a second lieutenant. The act of June 24, 1910, provided that the clerks to assistant paymasters in the Marine Corps ' shall receive the same pay, allowances, and other benefits as are now or may hereafter be provided for paymasters' clerks of cor- responding length of service in the United States Army ' ; while 151738—20 2 18 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. the act of August 29, 1916, establishing the positions of field clerk provides that such clerks having the requisite service as therein prescribed ' shall receive the same allowances, except retirement, as heretofore allowed by law to pay clerks, Quartermaster Corps.' In- asmuch as it had been the decision of the department theretofore that pay clerks, Quartermaster Corps, were not entitled under the law to fuel and light in kind (Buls. of 1915, No. 5, p. 5, and No. 21, p. 7), it follows that field clerks are not entitled to such allowances, according to those decisions, no provision having been made for them by law in the meantime." Ops/ J. A. G. 6-135, May 14, 1917. HEAT AND LIGHT: Enlisted men below grade 15 assigned to separate public quarters. The question was presented whether enlisted men below grade 15, when occupying separate public quarters, to which they have been assigned by proper authority, are entitled to an allowance of fuel therefor. Paragraph 1036, Army Eegulations, 1913, authorizes pre- scribed issue of fuel to officers and enlisted men entitled to and occu- pying public quarters. Paragraph 1044 contains the following pro- vision : " Enlisted men below grade 15, paragraph 9, may be assigned to separate public quarters whenever the same are available after those noncommissioned officers of higher grades have been accommodated and when the conditions of service appear to the commanding officer to warrant such assignment." Held, that when such enlisted men are assigned to and occupy separate public quarters, in pursuance of A. R. 1044, they are " en- titled to and occupying public quarters" within the meaning of A. R. 1036, authorizing the issuance of fuel therefor. Ops. J. A. G. 72^10, Apr. 28, 1917. MILITIA : Members of Organized Militia in National Guard organizations. In certain National Guard organizations responding to the Presi- dent's call of March 27, 1917, were found members who had not qualified as national guardsmen under section 70 of the act of June 3, 1916. Held) that inasmuch as the President's call of March 25, 1917, ap- plied only to the National Guard the soldiers in question, as mem- bers of the Organized Militia, were under no obligation to respond thereto, and the fact that they appeared for service in the National Guard organizations did not operate to create any obligation on the part of the Government to pay or provide for them ; and that there- fore, while they still remained subject as organized militiamen to be called into the Federal service as such, they should be dropped from the National Guard rolls for failure to qualify as national guardsmen. Ops. J. A. G. 58-051.1, Apr. 12, 1917. NATIONAL GUARD : Clothing allowance. Upon the question whether or not a member of the National Guard who was mustered out of the Federal service March 14, 1917, and again enters the Federal service under the call of March 25, 1917, is entitled, on his reentry into the service " to an initial clothing allow- ance." DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 19 Held, that the muster out of the Federal service from the call of June 18, 1916, terminated his Federal service under that call, en- titling- him to full settlement for such service; that the reentry into the service under the call of March 25, 1917, begins a new period of Federal service, and that he is entitled to the benefits of the laws applicable thereto as a distinct period of Federal service. Held further, that as the law gives him the right to the same pay and allowances as a soldier of the Regular Army would receive, he should be credited with the regular initial clothing allowance, but the value of the clothing supplied him at Federal expense upon reentry into the service and which he is permitted to retain should be charged against such initial allowance. Ops. J. A. G. 58-700, Apr. 27, 1917. NATIONAL GUARD: Continuation of active service. A soldier in a National Guard organization was, through mis- interpretation of the regulations governing the National Guard Re- serve, continued in the active service after the expiration of his active enlistment, and it was asked whether he might be continued in the active service and be allowed pay for the time already served. Held, that, while the term of enlistment prescribed by the national- defense act would seem to involve an automatic passing to the re- serve at the expiration of the active period of enlistment, such a deduction can not be held to interfere with the soldier's privilege of continuing in the active service, in view of the proviso of section 69, national-defense act, reading: "that in the National Guard the privilege of continuing in active service during the whole of an en- listment period * * * shall not be denied by reason of any- thing contained in this act": and that since the soldier referred to in the inquiry desired to continue in the active service, and actually did so, he may properly be regarded as having legally continued in active service, his service in that capacity having been accepted by proper authority. Ops. J. A. G. 58-700, Apr. 28, 1917. NATIONAL GUARD: Failure of members of, to respond to call. Upon the recommendation that prompt action be taken to appre- hend and punish such members of National Guard organizations as may have failed to respond to the call of March 25, 1917: Held, that the said call embraced only organizations of the Na- tional Guard and did not include members of the Organized Militia who failed to qualify under the national-defense act of June 3, 1916; that by the terms of section 101 of that act " The National Guard, when called as such into the service of the United States, shall. from the time they are required by the terms of the call to respond thereto, be subject to the laws and regulations governing the Regular Army "; that their failure to respond renders them punishable under the Articles of War for disobeying the orders of the President for their mobilization, and, if the circumstances evidence an intent to abandon the Federal service, also for desertion ; and that they may be charged with either offense, or both, and tried therefor by court- martial. Ops. J. A. G. 58-132.1, Apr. 19, 1917. 20 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. OFFICERS' RESERVE CORPS : Signal Corps Section. Held, with respect to the construction of section 37 of the national defense act of June 3, 1916, as applied to the Signal Corps, that the Signal Corps Section of the Officers' Reserve Corps, like the Regular Army, should comprise two divisions — i. e., the Signal Corps proper and the Aviation Section thereof; that the proportion of officers of the several grades in each division should conform to the proportion of the respective divisions of the Signal Corps of the Regular Army, except in the lowest grade ; and that such proportion will practically correspond to the organization now prescribed for the units of the respective divisions of the Regular Army. Held further, that the organization of the units of the respective sections may be proceeded with in the usual manner, provided the units, when complete, will not give a proportion of officers in any grade of the particular section of the Signal Corps in excess of the proportion prescribed in the statute; that the proportion indicated by the statute must be maintained in the particular section of the Sig- nal Corps as a whole, but need not be maintained in a particular unit of that section unless the departure from the proportion in that unit would render the composition of the whole section such as to violate the rule. Ops. J. A. G. 6-301.6, Apr. 13, 21, and 28, 1917. PRINTING : Procurement of, for military forces in time of war. Held, that the provision in the Army appropriation act approved May 12, 1917, amending section 87 of the public printing act of January 12, 1895 (28 Stat. 622), and section 2 of the act of June 30, 1906 (34 Stat. 762), operates to remove, in time of war, the restric- tion against the procurement of printing from commercial concerns contained in the act of 1895 and the restriction contained in the act of 1906 against the use of any appropriations for printing other than those made specifically and solely for printing and binding, so that in time of war the War Department may procure from commercial or other printing establishments necessary printing for the militar}^ forces and pay therefor from " available appropriations." Held further, that the said amendment of May 12, 1917, does not make available the War Department's allotment at the Government Printing Office for the procurement of printing by the department under contracts with commercial printing establishments. Ops. J. A. G. 5-113, May 28, 1917. PRISONERS OF WAR: Right to food supplies and furniture taken from captured vessel. The former commanding officer of an enemy ship in the status of a captured vessel of war requested that certain food supplies and certain furniture and kitchen utensils be shipped to the members of the crew confined at a military post. Held, that the proper application of paragraph 64 of the Rules of Land Warfare, reading: " Prisoners are only entitled to what is ordi- narily used in the captor's country, but due allowances should, if pos- sible, be made for differences of habits, and captured supplies should be used if they are available," is that captured supplies should be used by the Government for the subsistence and care of prisoners and not that such captured supplies should be turned over to the prisoners. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AKMY. 21 Held further, that since the furniture and kitchen utensils pertain to the ship itself, and are not private property of the prisoners, the Government is under no obligation to deliver them to the captive crew. Ops. J. A. G. 99-290, May 15, 1917. PRISONERS OF WAR: Right to make and sell toys for benefit of Ger- man Red Cross. Upon a question whether prisoners of war might be permitted to make and sell toys for the benefit of the German Ked Cross. Held, that there is nothing in any of the conventions to which the United States is a party which would impose upon the United States a duty to permit prisoners to aid any institutions connected with or serving an enemy of the United States in any capacity ; and that the existence of any such right on the part of prisoners is negatived by that part of article 6 of the Rules of Land Warfare. Hague Conven- tion No. 4, of October 18. 1907, reading: " * * * the wages of the prisoners shall go toward improving their condition and the bal- ance shall be paid to them on their release after deducting the cost of their maintenance." thus plainly contemplating that all earnings of prisoners shall be retained in the captor country until the termina- tion of war. Ops. J. A. G. 99-290, May 15, 1917. PRIVATE PROPERTY : Claims for loss of, in military service. By the act of March 4. 1915 ^38 Stat. 1077), it was provided that the act of March 3, 1885, relating to the settlement of claims of officers and enlisted men of the Army for the loss of private property destroyed in the military service " shall hereafter extend to cover loss or damage to the regulation allowance of baggage of officers and enlisted men sustained in shipment under orders to the extent of such loss or damage over and above the amount recoverable from the car- rier furnishing the transportation." The question was presented whether this provision applies to all property which may be shipped as change-of -station allowance of baggage (including, for example, civilian clothing of the claimant officer and wearing apparel of mem- bers of his family) or whether its application is limited to such articles as might otherwise be certified to the auditor by the Secre- tary of War under the original law of 1885. Held, that since the provisions of the act of 1885 are, by the act of March 4, 1915, extended to the loss or damage to private property in shipment, the limitations of the former act are extended, including the provision that " the liability of the Government under this act shall be limited to such articles of personal property as the Secretary of War, in his discretion, shall decide to be reasonable, useful, neces- sary, and proper for such officer or soldier while in quarters engaged in the public service in line of duty" ; that it is only because of this limitation that the Secretary of War is required to make any cer- tificate for the auditor in case of the loss of property of officers and enlisted men, and that therefore in the preparation of the certificates, in cases of loss of baggage, there should be listed only such articles as can be properly certified under the act of March 3, 1885. Ops. J. A. G. 18-461, Apr. 23, 1917. 22 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. RESERVE OFFICERS: Not to be assigned as assistants to juniors. Upon the question whether a reserve officer of the grade of major could be assigned to active service as an assistant to an officer of the Regular Army of the grade of captain. Held, that since it is provided in section 38 of the national defense act that while reserve officers are on active service they shall, " by virtue of their commissions as reserve officers, exercise command appropriate to their grade and rank in the organizations to which thev may be assigned. * * * : Provided, That officers so ordered to active service shall take temporary rank among themselves, and in their grades in the organizations to which assigned, according to the dates of orders placing them on active service : * * * " the ques- tion must be answered in the negative. Ops. J. A. G. 6-301, Apr. 18, 1917. STATUTE OF LIMITATIONS: Trials for desertion. On the question raised whether the 39th Article of War (new), which became operative March 1, 1917, under the provisions of the act of August 29, 1916 (39 Stat. 670), is applicable to a desertion committed prior to that date. Held, that the article applies to past offenses with respect to which the old statute of limitation (103d Article of War) had not run at the time of its repeal ; that under the usual rule statutes of limitation apply to past offenses (Bishop on Statutory Crimes, 3d ed., sees. 263, •_M>;>)', and by some authorities even where an existing statute had completely run at the time the new statute became operative; and that the proviso to the 39th Article of War, that it "shall not have the effect to authorize the trial or punishment for any crime or of- fense barred by the provisions of existing law," was inserted to limit the application of the article to such past offenses as have not, at the time the new statute becomes operative, been "barred by the provisions of existing law." Held further, that section 5 of the said act of August 29, 1916, prescribing "that all offenses committed, and all penalties, forfeit- ures, crimes, or liabilities incurred prior to the taking effect of this act * * * may be prosecuted, punished, and enforced in the same manner and with the same effect as if this act had not been passed," does not include such a liability as the liability to trial, but refers to liabilities such as to make good time lost, or to some other liability imposed by law and not embraced by the terms immediately pre- ceding it; that there is nothing in the language of the provision to show that it was intended to cover the liabilitv to trial, and that in view of the proviso to the 39th Article of War it must be held that it has no application thereto. Ops. J. A. G. 26-480, Apr. 26, 1917. WAR PRISONERS : Pay of officers. Under Article CVII, Hague Convention (Appendix 6, Field Service Regulations, United States Army, 1914, p. 192) officers taken prisoner are entitled to "receive the same rate of pay as officers of corresponding rank in the country where they are detained, the amount to be ultimately refunded by their own government." Held (1 ). that the term "officers," as here used, should be limited to "coirmissioned officers of the enemy army and navy who have DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 23 been taken prisoner in naval or military operations or by process of law"; (2) That as the rates of pay of officers of the Army and Navy as fixed by law are the same for officers of both services having the same relative rank as established in paragraph 12, Army Regula- tions, 1913, there is no objection to a fixed rate of pay for naval and military officers who are taken prisoner, based on the table of rela- tive rank as established in said regulations; and, (3) That the term "rank," as used in the convention, should be regarded as equivalent to "grade," and as so construed there can be no objection to adopting as a provisional basis of payment the base pay prescribed by law for officers of the corresponding grade of the Regular Army of the United States, without longevity increase or .allowances. Ops. J. A. G. 99-290, May 14, 1917. DECISIONS OF THE COMPTROLLER OF THE TREASURY. . ^NATIONAL GUARD: Additional pay of enlisted men as gunners. The question was presented for decision whether enlisted men of the Organized Militia or National Guard when brought into the service of the United States under the militia act of 1903, as amended, or when drafted into the Federal service under section 111 of the act of June 3, 1916, are entitled to receive additional pay for qualifications as first or second class gunners attained prior to their being brought into the service of the United States. He7d, that inasmuch as the requirements for qualifications as gun- ners are the same for the enlisted men in the militia or National Guard as for the enlisted men of the Regular Army, and as the laws relating to pay give the militia, when brought into the service of the United States, the same pay and allowances as are or may be provided b} T law for the Regular Army, they are entitled to the additional pay as gunners under their qualifications attained prior to their being brought into the Federal service, subject to the condi- tions imposed by paragraph 1344, Army Regulations, 1913. Comp. Treas. July 21, 1916. PAY AND ALLOWANCES: Retired officers and enlisted men commis- sioned in the National Guard. The following questions were presented for decision : (a) Whether a retired officer of the Regular Army, appointed as an officer of the National Guard and detailed as property and dis- bursing officer, can receive the pay as property and disbursing officer provided for by section 67, act of June 3, 1916, and the National Guard pay provided by section 109, act of June 3, 1916, in addition to his retired pay of the Regular Army. (A) Whether a retired enlisted man of the Regular Army, ap- pointed as an officer of the National Guard and detailed as proper:' and disbursing officer, can receive the pay as property and disbursing officer provided by section 67 of the act of June 3, 1916, and the National Guard pay provided by section 109 of the act cited, in addition to his pay as an enlisted man, retired, of the Regular Army. 24 DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF AEMY. Section 74 of the national-defense act of June 3, 1916, speci- fying the class from which National Guard officers may be selected, includes retired officers of the Regular Army, but does not include retired enlisted men except as they may become eligible by enlist- ing in the National Guard. Held, as to (a), that the effect of the statutory provision for the appointment of retired officers of the Regular Army as officers in the National Guard is to give a retired officer so appointed the pay provided for in sections 67 and 109 of the national-defense act in addition to his retired pay in the Army; and, as to (b), that, inas- much as the statute does not provide for the entry of retired enlisted men into the National Guard, previous decisions are applicable (20 Comp. Dec, 49, and 23 Id., 444), which are to the effect that the pay of a retired enlisted man of the Army while in the Federal service as a member of the Organized Militia or National Guard should be discontinued ; in other words, that there is no prohibition against the commissioning of a retired enlisted man in the National Guard, after his enlistment therein, and then appointing him prop- erty and disbursing officer and paying him therefor from the amount appropriated from Federal funds, but during such time he will not be entitled to continue to draw his retired pay as an en- listed man of the Army. Accordingly, question (a) answered in the affirmative and question (b) in the negative. Comp. Treas. May 21, 1917. RETIRED OFFICERS: Pay on being transferred to the active list. A retired officer of the Army in the grade of first lieutenant was transferred to the active list March 22, 1917, " with the rank of cap- tain of Infantry from July 1, 1916," under the provisions of the act approved March 4, 1915 (38 Stat. 1068), which authorizes the trans- fer of retired officers to the place on the active list which they would have had had they not been retired. The officer duly accepted his commission as captain, and thereupon the question was presented whether he was entitled to the difference in pay between the grades of first lieutenant and captain commencing July 1, 1916, the time from which his rank as captain dated under the order transferring him to the active list. Held, that the date when the officer accepted his commission as captain, and thereby became invested with the office, was the date when the pay as captain commenced, and not before, since the rate of pay is attached to the office and not to the rank which the officer has. Comp. Treas. May 3, 1917. RETIRED OFFICERS: Pay under assignment to active duty in time of war. Section 24 of the national-defense act, approved June 3, 1916, con- tains the provision : " That in time of war retired officers of the Army will be em- ployed on active duty, in the discretion of the President, and when so employed they shall receive the full pay and allowances of their grade." Held, that this provision supersedes previous statutes governing the pay of retired officer assigned to active duty in time of war and DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 25 that under such provision all retired officers of the Army placed on active duty in time of war are entitled to the full pay and allowances of their grades ; but it has reference only to such officers as are specif- ically assigned to active duty of a strictly military character under said provision, and does not apply to those detailed as instructors in educational institutions. 23 Comp. Treas. 577; id. 605. DECISIONS OF THE COURTS. CONTRACTS: Construction of. A meat-packing company contracted with the Navy Department to furnish to the navy yard at Puget Sound, Wash., or to vessels docking thereat, during the fiscal year ending June 30, 1908, certain meats, the quantity to be furnished being "165,000 pounds, more or less," according to the requirements of the service. The contract con- tained this provision : " The quantities called for above are only estimated, and the right is reserved to exact more than the amount of any article included in the above class at the contract price or to accept less than the full amount thereof, as the needs of the public service may require." After the contract was entered into the President decided to send the Atlantic Fleet around the world, and the contractor was re- quired, over his protest, to furnish at the contract price meat to ves- sels of that fleet touching at the Puget Sound Navy Yard. The quantity thus furnished to the Atlantic Fleet was 200,983 pounds, which cost the contractor $21,767.80, and for which the contractor received from the Government $17,531.71, the price of meat having risen subsequent to the date of the contract. The contractor brought suit, insisting that its contract only required it to furnish meats to the vessels of the Pacific Fleet which might dock at the Puget Sound Navy Yard during the fiscal year, and that it could not be required to furnish meats at contract rates to the vessels of the Atlantic Fleet docking at that station, and that the contractor was therefore en- titled to recover from the Government the market price of all meats furnished by it to the vessels of the Atlantic Fleet, less the amount paid based on the contract price. Held, that the claimant could not recover, as there was nothing in the contract indicating that the agreement referred only to the re- quirements of the Pacific Fleet, and as the quantities of meat to be furnished by the contractor depended upon the determination of the Chief of the Bureau of Supplies and Accounts of the Navy Depart- ment, whose decision as to the quantities of meat to be furnished was, by the express terms of the contract, final, and that unless the con- tractor had been required to furnish a totally unreasonable amount, or unless bad faith was shown, the contractor could not complain, the case being governed by the principle laid down in Brawlcy v. United States (96 U. S., 168, 172), where the meaning of the words " more or less " is discussed thus : "If, however, the qualifying words are supplemented by other stipulations or- conditions which give them a broader scope or a more extensive significance, then the contract is to be governed by 26 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. such added stipulations or conditions. As, if it be agreed to furnish so many bushels of wheat, more or less, according to what the party receiving it shall require for the use of his mill, then the contract is not governed by the quantity named, nor by that quantity with slight and unimportant variations, but by what the receiving party shall require for the use of his mill; and that variation from the quantity named will depend upon his discretion and requirements so long as he acts in good faith.'' Carstens Packing Co. v. The United States, decided by the Court of Claims May 28,' 1917. HORSES : Claims for loss of, in military service. In a recent case {Frtcnk M. Andrews v. The United States, de- cided Apr. 30, 1917) the Court of Claims disposed of a number of claims of officers of the Army for loss of horses in the military serv- ice, such suits having been brought under the act of March 3, 1885 (23 Stat. 350), which provides for the reimbursement of officers and enlisted men for the loss of private property in the military service under conditions therein specified. (Previous decisions of the Court of Claims were in suits brought under other statutes, re- lating to horses lost in time of war. See Bui. No. 8, W. D. 1916, p. 13, and Bui. No. 15, W. D. 1917, p. 15.) The Comptroller of the Treasury finallv held in a decision dated October 20, 1913 (20 Comp. Dec. 238), that the act of March 3, 1885, did not apply to horses. In the recent decision in the Andrews case, the Court of Claims held that the act of 1885 does authorize reimbursement to officers for horses lost in the military service, in time of peace, under the cir- cumstances mentioned in the act. The court defined some of the limitations of the act as follows: " It does not follow from what has been said that every horse privately owned which dies while its owner is in the military service can be paid for. Congress did not intend by the provisions of the act of 1885 to make the Government an insurer against loss or de- struction of a soldier's private property. The officer or enlisted man must be in the military service of the United States and the loss of his private property must likewise have been in the military service, not merely while in the military service but by reason of some exigency or necessity of the military service and not incident to a horse out of as well as in that service. An analysis of the stat- ute in this respect is most succinctly stated by Assistant Comptroller Bowers (3 Comp. Dec. 636): 'The loss must have been caused by some exigency or necessity of the military service, such as naturally would be attributed to and would flow from such service. To establish a case under this act the property must have been lost or destroyed in the military service; not merely while it was in use in that serv- ice, but because it was in that service. Being in that service must have been the proximate cause of the loss. The loss must not have been caused by the natural wear and tear or deterioration of the articles in ordinary use in the service. Inherent defects in articles, on account of which they are unable to stand the ordinary strain .of the service, will prevent recovery.' " Congress by the remedial legislation in issue was providing re- imbursement for property lost by reason of the peculiar hazards to which it was exposed while in military service, and by so doing did DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 27 not intend to cover the whole field of accidental loss or destruction in no way connected with the dangers incident to military service; simply because the soldier had carried his private mount into the military service to be used by him in military activities as his mili- tary duties required such a use does not of itself render the defend- ants liable for its death if the same ensued from any cause not di- rectly connected with or incident to military service. * * * While the line of demarcation may in some instances be difficult of ascer- tainment, still the intendment of the statute is open and apparent. The term k in the military service ' has a settled and universally ac- cepted legal meaning and would not appear in the act if it was not de- signed to limit liability for the loss and destruction of private prop- erty occurring by reason of and in the actual performance of military duty." In view of these limitations certain claims were disposed of as follows : {//) Where an officer's horse thai had been put in a quartermaster's pasture while the officer was away from the post on leave, and it was discovered with a serious fracture of its foreleg, necessitating its be- ing shot, held, that the officer could not recover, as there was nothing in the record to connect the injury with the military service. (b) Where an officer's horse was in charge of the Quartermaster's Department and being led by an attendant through the streets of Seattle, Wash., to be placed on board a transport for shipment to the Philippine Islands and was so injured when it slipped and fell on the asphalt pavement that it had to be shot, held, that the claimant could not recover, as the horse's death was purely accidental, there being- nothing in the record to connect the loss with the requirements of the act of 1885. (een ridden by the officer and "came in rather warm.'' The same evening the horse became ill. The next day he developed congestion of the lungs and died as the result. Held, that the officer could not re- cover, as the horse obviously died from illness not incident to the military service. Other cases were dismissed because the claimants had not filed a claim with the auditor within two years after the loss occurred, as required by the act. XEASES: Payment of rent by Government. The Government leased premises for a post office, and during the life of the lease the premises were sold under a mortgage foreclosure. Under the terms of the lease the annual rental was payable in quar- terly installments on the first days of October. January, April, and July. The new owner took title November 23 and claimed the rental for the whole of that quarter, payable January 1. The demand was refused and the Government apportioned the rental between the old and the new owners, the latter being paid only from the date 28 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. when he took title to the premises, November 23, 1912. In an action by the new owner in the Court of Claims, Held, that he was entitled to the rent for the whole quarter under the Avell-settled common law rule that in cases like this the appor- tionment of rent is not allowable, as the rent does not accrue from day to day. but only accrues at the time it becomes due under the terms of the lease and is indivisible. Musselman v. United States, decided by the Court of Claims Mav 28, 1917. PAY AND ALLOWANCES: Longevity pay of members of Medical Reserve Corps. In the case of Yeamans v. United States, decided by the Court of Claims Ma} ? 7, 1917, the plaintiff, while serving as a contract surgeon of the Army, had been appointed a member of the Medical Reserve Corps in accordance with section 7 of the act of April 23, 1908 (35 Stat. 66), and he claimed that he was entitled to longevity increase upon his services as contract surgeon. Section 9 of the act of April 23, 1908, provided : " That officers of the Medical Reserve Corps, when called upon active duty in the service of the United States, as provided in sec- tion 8 of the act. shall be subject to the laws, regulations, and orders for the government of the Regular Army, and during the period of such service shall be entitled to the pay and allowances of first lieutenants of the Medical Corps with increase for length of service now allowed by law, said increase to be computed only for time of active duty." Held, that this legislation was prospective in its character and operation and does not contemplate the computation of former serv- ice in fixing the longevity pay of the officers rendering service in the Medical Reserve Corps; that the plain meaning of the language quoted is that officers of the Medical Reserve Corps shall only re- ceive longevity pay while they are on active duty in the active serv- ice of the United States in the Medical Reserve Corps, and that no service performed elsewhere, even though performed in other branches of the military service, can be computed in determining the longevity pay provided for in this statute. BULLETIN 42. OPINIONS OF THE JUDGE ADVOCATE GENERAL. ALLOTMENT OF PAY : Purchase of liberty bonds. On the question raised as to the legality of waiving the provisions of paragraph 1347, Army Regulations, restricting allotment privi- leges as to soldiers serving within the United States, so as to permit allotments to banking institutions for the purchase of liberty bonds. Held, that, as the statute pursuant to which the regulation was made (sec. 16, act of Mar. 2, 1899, 30 Stat. 981), authorizes the Sec- retary of War " to permit enlisted men of the United States Army to make allotments of their pay, under such regulations as he may pre- scribe, for the support of their families or relatives, for their own savings, and for other purposes, during such time as they may be absent on distant duty, or under other circa instances warranting such action" the language being broad enough to authorize allotments of pay for "the purposes proposed, there can be no legal objections to the issue of instructions authorizing such allotments to be made, and that such instructions will operate as a modification of the regulations so as to permit of the allotments for the purposes in view. Ops. J. A. G. 72-260, June 13, 1917. AVIATION OFFICERS: Travel orders. On the question whether the action of the Secretary of War in authorizing the Chief Signal Officer " to issue orders to officers in the aviation section, Signal Corps, under his immediate command, direct- ing journeys on duty in connection Avith the aviation service of the Army," extends to officers of the aviation section, Signal Officers' Reserve Corps, under the command of the Chief Signal Officer, trav- eling on duty in connection with the aviation service of the Army. Held, that the authority conferred has reference to the provisions in the Army appropriation act, approved May 12, 1917, providing: " That mileage to officers in the aviation section, Signal Corps, travel- ing on duty in connection with aviation service shall be paid from the appropriation for the work in connection with which the travel is performed ;" and that the provision of this act was evidently intended to apply to all travel and duty in connection with the aviation service whether performed by regular or reserve officers of the aviation sec- tion, Signal Corps ; and that the authority in question should be con- strued as extending to officers of the aviation section, Signal Officers' Reserve Corps, when traveling on duty in connection with the avia- tion service of the Army. Ops. J. A. G. 94-210, June 13, 1917. BONDS OF DISBURSING OFFICERS: Reserve officers. On the question raised as to the proposed action of the Chief of Ordnance in requiring reserve officers assigned to duty as disbursing officers to execute official bonds in limited amounts for the protection of the United States, 29 30 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. Held, that there can be no legal objection to the proposed action; that it is well settled that heads of departments, although there be no statutory provision directing such action, may require bonds from officers for the protection of the United States; and that where pub- lic property is intrusted to individuals, although there is no law re- quiring a bond, the head of a department may properly require one, citing Dig. Ops. J. A. G. 1912, 198. Ops. J. A. G. 12-110, June 15, 1917. CONTINUOUS-SERVICE PAY : Delay in reenlistment. In the case of a sergeant detailed as instructor of the National Guard who was discharged as such to accept a commission in the Na- tional Guard and within three mouths after his discharge applied for information as to whether he could "reenlist and be redetailed as sergeant-instructor," adding, "if authority is granted I will make proper application for reenlistment ;" and owing to delay in delivery of the letter advising him that he could reenlist and be redetailed as requested his reenlistment was not accomplished within the period of three months, Held, on the authority of the decision of the Comptroller of the Treasury, dated June 16, 1914 (W. D. Bui. 33, p. 10), to the effect that where a soldier made application for reenlistment before the expira- tion of the three months' period, "but on account of delays apparently for the convenience of the Government and without his fault," the enlistment was not accomplished within the prescribed period, the soldier " was entitled to have his reenlistment take effect before the expiration of said three months' period and was entitled to the benefit of his prior service in computing his pay for continuous service:" that the case in reference comes within the reasons of this decision of the comptroller inasmuch as the soldier in his request for informa- tion stated that if the authority was granted he would " make proper application for reenlistment ;" and that his letter making such request should be regarded as his application for reenlistment, and as bring- ing him within the decision of the comptroller of June 10, 1911. ■supra; and, therefore, that the soldier should be viewed as having reenlisted within three months after the date of his muster out so as to entitle him to the full benefits of continuous service. Ops. J. A. G. 72-220, June 1, 1917. DENTAL CORPS: Appointments. With referent e to the requirement of the act of March 3, 1911 (30 Stat. 1051), prescribing that appointees to the Dental Corps must be "graduates of a standard dental college," and the opinion of the Judge Advocate General of September 25, 1910, that certain institu- tions which were disqualified to confer degrees by reason of noncom- pliance with the laws of the State as to filing evidence as to their equipment, faculty, and other facilities for instruction, should not be recognized as standard colleges, additional facts were submitted showing that the particular college, since.the prior decision, had com- plied with the requirements of the State law on the subject and been recognized by the proper State authorities as an institution having a standard course and as qualified to confer degrees in dental surgery, it further appearing that the college is one of the oldest dental schools in the world; that the failure to comply with the require- DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 31 nients of the State law was due to inadvertence; and that the equip- ment of the college respecting property, faculty, and other facilities for instruction, during the period preceding its recent qualification under the State law was substantially identical with its existing equip- ment in these respects. Held, that if the department is satisfied that these representations respecting the equipment of the institution during the period preced- ing its recent recognition by the State authorities is correct, the grad- uates of that institution-who were graduated during such period may be recognized as graduates of a standard dental college within the meaning of the act of March 3, 1911. Ops. J. A. G. 6-227.8, May 24, 1917. DESERTION IN TIME OF WAR: Expenses of trial; Place of trial. Desertion in time of war being a capital offense punishable by death, or such other punishment as a court-martial may direct, and the use of depositions in such a case not being authorized except on the part of the defense, . Held* that since trials for desertion in time of war will ordinarily entail greater expense than trials for desertion in time of peace, com- manding officers and all others concerned should be more than ever vigilant to see that charges for desertion in time of war are rigidly investigated and full and complete reports made with reference thereto for the information of department commanders. Held further, that department commanders should be instructed to take into consideration the expense involved in procuring the per- sonal attendance of witnesses, in addition to any items of expense here- tofore considered, in determining whether alleged deserters in time of war shall be tried where they may be returned to military control, at the place where their commands may be serving, or whether they shall be sent to the United States Disciplinary Barracks, Fort Leav- enworth, Kans.. or to the Pacific branch thereof at Alcatraz, Cal., for trial. Ops. J. A. G. 26-800, June 20, 1917. FIELD CLERKS : Hunting leave. In view of the department's ruling that Army field clerks and field clerks, Quartermaster Corps, are entitled to the benefits of the leave laws applicable to commissioned officers of the Army, the ques- tion was presented whether such clerks are entitled to the hunting privilege provided by Army Regulations 65 and 66. Held, that inasmuch as the leave allowance of officers is limited by statute, the so-called hunting privilege provided by the regula- tions can only be justified on the ground that it produces results of a military value, and that as the reasons underlying the granting of such leave to officers who are professional soldiers do not apply to field clerks, such clerks can not legally be granted leave to hunt under the said regulations in addition to their statutory leave. Ops. J. A. G. 2-126, June 8, 1917. FIELD CLERKS: Purchase of subsistence supplies from Quartermaster Corps. The question was presented whether acting Army field clerks are entitled to the privilege of purchasing food supplies from the Quar- termaster's Department. The term " acting Army field clerk " is 32 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. applied to the temporary headquarter's clerks employed during the continuance of the existing emergency. Held, that the statutes and regulations which authorize the sale of subsistence supplies to " officers and enlisted men " may properly be given a liberal application so as to include Army field clerks provided for by the act of August 29, 1916 (39 Stat. 625), inasmuch as Army field clerks are officers with a regular military status, although not commissioned officers; but as to the clerks temporarily employed and designated " acting Army field clerks,'' these are merely civilian em- ployees and have no status as officers within the purview of the stat- utes relating to the sale of subsistence supplies to officers and enlisted men of the Army. Such acting Army field clerks may purchase sub- sistence supplies from the Quartermaster's Department only as civil- ians, under Army Regulations 1245. Ops. J. A. G. 80-131, June 14, 1917. INSANE OF ARMY: Appropriation for care. On the question submitted as to whether the Surgeon General is authorized to make arrangements with private institutions for the tare of insane still in the military service under the appropriations " Medical and Hospital Department," containing an item " for medi- cal care and treatment not otherwise provided for, including care and subsistence in private hospitals, of officers and enlisted men, when entitled thereto by law, regulation, or contract," it being stated that the Government Hospital for the Insane is " taxed to its utmost capacity;" that the patients contemplated to be treated in private hospitals are those who will suffer temporary mental aberrations due to the incidents of trench warfare; that under proper conditions, if treated in psychopathic institutions where they can have the bene- fit of the special provisions therein made for the mentally deranged, they will be wholly restored to normal and to a duty status after a brief period of treatment ; and that it is the purpose to send to the Government Hospital for the Insane those whose insanity turns out to be of a more permanent nature, • Held, that the appropriation referred to is broad enough to au- thorize arrangements for the treatment of insane officers and enlisted men of the Army who, because of the limited facilities of the Gov- ernment Hospital for the Insane, can not properly be treated there ; and that there is no legal objection to making arrangements as pro- posed for the treatment in private institutions of those temporarily deranged because of the conditions of service, such action being based on the inadequate facilities of the Government Hospital for the Insane to care for these patients. Ops. J. A. G. 44-200, June 6, 1917. DECISIONS OF THE COMPTROLLER OE THE TREASURY. CIVILIAN EMPLOYEES: Five and 10 per cent increase in compensation. The provision for a 5 and 10 per cent increase of pay to civilian employees of the Military Establishment, during the fiscal year 1918, reads : " That during the fiscal year nineteen hundred and eighteen, all civilian employees in the Military Establishment, including on the DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 33 lump-sum rolls only those persons who are carried thereon at the close of the fiscal year ending June thirtieth, nineteen hundred and seventeen, shall receive increased compensation at the rate of 10 per centum per annum to such employees who receive salaries or wages in such establishment at a rate per annum of less than $1,200, and increased compensation at a rate of five per centum per annum to such employees who receive salaries or wages in such establishment at a rate of not more than $1,800 per annum and not less than $1,200 per annum." With reference to a similar provision affecting the Naval Estab- lishment, the following questions relating to per diem employees were presented : (a) Shall extra pay earned by overtime work be disregarded in computing 5 and 10 per cent increase of compensation, the increase being determined by crediting each eligible emplo3 r ee with 5 or 10 per cent, as the case may be, of his regular per diem rate for each day worked ? (b) If the increase of compensation is to be based upon the total pay received, including overtime work, shall the amount of pay re- ceived by any employee during a pay period be considered as bearing the same proportion to his annual pay as the number of days worked in such pay period bears to the number of working days per year? Held as follows : " Under the provision of this law the rate and not the amount of compensation is made the determining factor as to whether or at what rate the increase is to be paid, and a per annum rate is made the basis. "A salary at the rate of $1,200 per annum is equivalent to $100 per month and $3.33^ per day, and a salary at the rate of $1,800 per annum is equivalent to $150 per month and $5 per day. Therefore, in determining a per diem employee's right to the increase it is these per diem rates that are to be considered and not the amount of an- nual compensation that he may receive at the rate paid to him. " The number of days he may work during the year and the overtime work do not affect the question. " If a per diem employee of the class referred to in the above- quoted law receives compensation at a rate less than $3.33^ per day, he will be entitled to the 10 per cent increase; for instance, if his rate of compensation is $3.30 per day, he will be entitled to an increase of 33 cents for each day's work performed, regardless of whether he may work 365 days or only 200 days during the year; likewise, if his rate of compensation is not less than $3.33^ per day and not more than $5 per day, he will be entitled to the 5 per cent increase ; and if his rate of compensation is more than $5 per day he will not be entitled to any increase, even though the total compensa- tion received by him during the year does not exceed $1,800. " The increase will be allowed on overtime work as well as on regular work, provided the rate paid for overtime work on an eight-hour basis is not more than $5 per day." "Comp. Treas. May 26, 1917. In another case the question was presented whether pieceworkers are entitled to the benefits of the said act, and, if so, upon what basis the percentage of increase should be computed. 151738—20 3 34 DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. Held, that pieceworkers are to be classed as being paid wages and that the provision for increased compensation is applicable to them upon the following basis: " Payment is made for piecework after the doing of it, but the value of the labor in the doing of it is ascertained approximately and the compensation fixed for it before the doing of it. In fixing the compensation for the labor, certain elements must have been considered, and they become the basis of the compensation, among them being the quantity the average employee could do in a given period. On this basis a rate of compensation per day may be ascertained. "It is understood that eight hours constitute a workday for these employees. If so, the amount of compensation earned during said period at the established piece rates is the rate of pay for the day. This rate forms the basis of computing the percentage increases. If it is less than $3.33^, the increase will be at the rate of 10 per cent ; if it is not less than $3.33^ and not more than $5, the increase will be at the rate of 5 per cent; and if it is more than $5, no per- centage increase will be paid." Comp. Treas. May 28, 1917. LEASE OF LANDS : Payment of rent in advance. A lease of a tract of land by the Signal Corps for aviation pur- poses provided for payment of the rent in advance. The question was raised whether advance payment was not in violation of section 3618, Revised Statutes, which prohibits the advance of public money " in any case whatever." In 12 Comp. Dec. 782, it was held, in sub- stance, that in the matter of naked lands leased to the Government, where the leased lands have been placed in the possession of the Gov- ernment by the lessor, the Government has obtained all it contracts for under the lease, and hence a payment of rental at such time is not a payment in violation of section 3648, Revised Statutes. Upon reconsideration of this question, Held, that in the case of naked lands leased by the Government it would seem that the purpose and spirit, if not the plain letter, of the law are against payment of the rent in advance, and that therefore the decision in 12 Comp. Dec, 782, is modified so that here- after " payment of rent in advance by the month, year, or quarter for naked lands leased to the Government will not be recognized by the accounting officers." Comp. Treas. May 23, 1917. NATIONAL GUARD : Pay of enlisted men refusing to take Federal oath. Where an enlisted man of the Organized Militia called out in the national defense refused to take the Federal enlistment oath pre- scribed in the act of June 3, 1916, or to be formally mustered into the Federal service, but who was treated in all respects as a member of the organization in that service and was required to perform all the duties of a soldier from the date of his enlistment to the date of his muster out, Held, that he was entitled to pay as a member of the organization during the period referred to. Comp. Treas. May 12, 1917. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 35 PAY OF ENLISTED MEN: Foreign-service increase. The question was presented whether in the case of enlisted men the '20 per cent increase for foreign service provided for by the act of June 30, 1902 (32 Stat. 512). is to be computed on the monthly in- crease of pay authorized by the act of May 18, 1017. The a< t of 1902 authorizes the payment to enlisted men of 20 per cent increase for foreign service, such increase to be "over and above the rates of pay proper as fixed by law for time of peace' 1 ''; and the act of May is. 1917, provides that the monthly increases therein authorized are to continue only until the termination of the emergenc;/. Held, that as the rates of pay " as fixed by law for time of peace " do not include monthly increases provided for by the act of May 18. 1917. which are war increases, such monthly increases can not enter into the computation of the 20 per cent increase provided for foreign service. Comp. Treas. May 29, 1917. PRIVATE PROPERTY : Claim for loss in military service. In connection with a recent claim of an officer of the Army for the loss of private property in the military service the Comptroller of the Treasury placed upon the act of March 3, 1885 (23 Stat. 350), a construction which materially restricts the operation of the act in comparison with the practice under decisions heretofore in effect. The act provides for the settlement under conditions therein pre- scribed for the loss, " except in time of war or hostilities with In- dians," of private property of officers and enlisted men under the following- circumstances : " First. When such loss or destruction was without fault or negli- gence on the part of the claimant. " Second. Where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment. " Third. Where it appears that the loss or destruction of the pri- vate property of the claimant was in consequence of his having given his attention to the saving of the property belonging to the United States which was in danger at the same time and under simi- lar circumstances." Held, by the comptroller, that when a claim of an officer or en- listed man of the Army for the value of his private property lost or destroyed in the military service is presented within two years from the occurrence of the loss or destruction, and it appears that the loss or destruction was not " sustained in time of war or hostili- ties with Indians," and " was without fault or negligence on the part of the claimant," said act of March 3, 1885, provides for payment under two and only two circumstances, namely : 1. " Where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of an officer authorized to give such order or direct shipment. 2. " Where it appears that the loss or destruction of the private property of the claimant was in consequence of his having given his attention to the saving of the property belonging to the United States which Avas in danger at the same time and under similar cir- cumstances." 36 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. This construction is a return to an early construction of the act announced by the Second Comptroller of the Treasury under date of Xovember 8, 1893, and is based upon an examination by the comp- troller of the legislative history of the statute which was resorted to in view of the ambiguity of the statute, as evidenced "by the fact that the comptrollers who held office for 30 years after the law passed reached many different conclusions as to its meaning." Comp. Treas. May 7, 1917. TRANSPORTATION: Officers' baggage allowances. Where a captain of the Philippine Scouts was retired with the pay and allowances of a master signal electrician of the Army, as provided by section 26 of the national- defense act of June 3, 1916: Held, that he was entitled to the transportation, from his last duty station to his home, of the baggage allowance of a captain, as pro- vided by Army Regulations 1136 and 1137. Comp. Treas. June 6, 1917. BULLETIN 49. OPINIONS OF THE JUDGE ADVOCATE GENERAL. CAMPAIGN BADGES : Issue of, to members of training camps. A candidate for a commission while serving in the reserve officers' training camp applied for a campaign badge for service rendered during the Philippine insurrection. Upon the question whether members of training camps are in the military service in such man- ner as would justify the issuance of campaign badges, Held, that since members of training camps are enlisted in the service of the United States, though only for a term of three months, they are members of the military force of the United States, and that campaign badges, being authorized as a part of the uniform, could properly be issued to them as a part of the uniform which they are entitled to wear in the service of the United States. Ops. J. A. G. 46-321, June 30, 1917. CLAIMS FOR PRIVATE PROPERTY : Commencement of war. Upon the question raised as to the " date of commencement of the present war*' with reference to the action which should be taken on claims of officers and enlisted men for property destroyed in the military service under the act of Congress approved March 3, 1885, providing that the act " shall not apply to losses sustained in time of war or hostilities with Indians," Held, that the date of the commencement of the present war should be regarded as the date of approval of the joint resolution of Con- gress of April 6, 1917 (Pub. No. 1, 65th Cong.), formally declaring a state of war as existing between the United States and the Imperial German Government. Ops. J. A. G. 18^61, June 30, 1917. CONTRACTORS: Relief on the ground of hardship. The question was submitted as to whether or not the decision of the comptroller, dated May 24, 1917, construing the contract of F. H. Leggett & Co. for the delivery of flour to the Marine Barracks, Port Royal, S. C, is applicable to similar contracts of the Quarter- master Corps for fuel, forage, etc. The decision of the comptroller, after citing the provisions of the contract requiring the contractor to furnish, at the stipulated price, such quantities of flour "as may he required" during the period specified, and showing that the esti- mated quantity was based simply on "normal conditions," and that it was contemplated that the "quantity stated will be increased or di- minished as the necessities * * * may demand," held that the fact that the market price of flour has materially advanced, and that the quantity of flour required to meet the needs of the service is largely in excess of that required under normal peace conditions, do not furnish any legal basis for relieving the contractor of his obliga- tion to furnish all the flour required at that post. The decision of the comptroller is in line with the decision of the Court of Claims in 37 38 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. the case of Carstens Packing Co. v. United /States, decided May 28, 1917, a digest of which decision appears on page 17 of Bulletin 34, dated June 8, 1917 (ante p. 25). Upon the question submitted. Held, that the decision of the comptroller and the decision of the Court of Claims in the cases referred to above should be applied by disbursing officers to contracts of the Quartermaster Corps for fuel, forage, etc., where the terms are substantially the same and the circumstances are similar; and that if the facts and circum- stances of the particular case appear to make these decisions inap- plicable, the matter should be submitted to the department for con- sideration. Ops. J. A. G. 76-700, July 13, 1917. ENLISTMENTS: Continued in force during war. Upon questions (a) whether soldiers could legally be discharged by reason of expiration of term of enlistment subsequent to the passage of the act of May 18, 1917, and (b) whether that act was effective to continue in force enlistments in the National Guard. Held, that question (a) must be answered in the negative since the provision container! in section 7 of the act of May 18, 1917, reading : "All enlistments, including those in the Regular Army Reserve, which are in force on the date of the approval of this act and which would terminate during the emergency, shall continue in force dur- ing the emergency unless sooner discharged; but nothing- herein contained shall be construed to shorten the period of any existing enlistment." is an inhibition against discharges unless ordered by the Secretary of War under his general power to grant discharges in the interest of the Government, and since the soldier's enlistment is prolonged for the period of the emergency by the provision quoted, a dis- charge for the purpose of immediate enlistment would involve ad- ministrative labor and a multiplication of records without any resultant benefit to the Government. Held further as to question (5), that since the provision quoted is applicable to " all enlistments," it is applicable to enlistments in the National Guard, they being* enlistments in the National Guard of the United States as well as the National Guard of a State ; and the question is answered in the affirmative. Ops. J. A. G. 28-240, June 2, 18, 1917. NATIONAL GUARD: De facto property and disbursing officer. In the case of an administrative staff officer who, not being an officer of the National Guard, was ineligible for appointment as property and disbursing- officer under section 67, national-defense act of June 3, 1916, upon his application for action by way of con- firmation of his official act as property and disbursing officer, Held, that no confirmation in his case would be required; that the acts of the officer as the de facto incumbent of the office must be re- garded as valid (29 Cyc. 1389, etc.; 8th A. and E. Encvc of Law. 806) and that as there was no de jupe claimant to the office for the time under consideration, the officer would be entitled to retain the salary paid to him while the de facto incumbent of the office. Ops. J. A. G. 58-213, June 28, 1917. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 39 NATIONAL GUARD: Final statements. In the case of an enlisted man of the Texas engineers who, without a discharge from that organization but prior to the muster into the Federal service of that organization, enlisted in the National Guard of another State, and after his arrival in Texas was apprehended, tried, and sentenced for fraudulent enlistment, and subsequently was released on probation and furnished transportation to his home in Texas; on the question as to the date from which final statements should be made out for the Texas organization, Held, that the date he was apprehended and taken into military custody — November 16, 1916 — should be the date from which he should be given final statements with respect to his service in the Texas organization. Ops. J. A. G. 72-200, July 10, 1917. NATIONAL GUARD: Reenlistments of noncommissioned officers. In the case of a corporal of a National Guard organization who, with others, was mustered out of the Federal service April 13, 1917, because of refusal to subscribe to the oath prescribed by the national- defense act of June 3, 1916, and who applied June 5, 1917, for reen- listment, and upon signing the dual oath was restored to duty; on the question whether he should be carried as and receive the pay of a corporal or a private, it being stated that the company has its full complement of noncommissioned officers, appointed since the muster out of a portion of the company, Held, that he is to be regarded as having reenlisted June 5, 1917, and that, as there is no vacancy in his company as corporal, he must be carried as and receive the pav of a private. Ops. 6-151.1, June 23, 1917. OFFICERS : Transfer under provisions of section 25 of the national-de- fense act. Upon the question whether an officer transferred to another arm under the provisions of section 25 of the national-defense act subse- quent to May 15, 1917, would be given a place on the lineal list of that arm determined by his relative rank on the passage of the bill June 3, 1916, or determined by his relative rank at the date of his actual transfer, Held, that the purpose of the fifth proviso of section 25 of the national-defense act, reading: " That for the purpose of lessening as much as possible inequalities of promotion due to the increase in the number of officers of the line of the Army under the provisions of this act, any vacancies created or caused by this act in commissioned grades below that of lieutenant colonel in any arm of said line may, in the discretion of the Presi- dent and under such regulations as he may prescribe in furtherance of the purpose stated in this proviso, be filled by the promotion or transfer without promotion of officers of other branches of the line of the Army; * * * " is limited to lessening inequalities of promotion due to the increase in the number of officers of the line of the Army under the provisions of the national-defense act; that the only inequalities of promotion which could result from the addition of officers would be inequali- 40 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. ties between arms, and not inequalities between individuals within either of the arms; that the purpose of the statute, therefore, is to authorize transfer from the arm receiving the smaller increase to the arm receiving the larger increase, thus increasing the promotion in one arm and at the same time decreasing it in the other, and so producing an equality or a nearer approach thereto. Therefore, the statute does not address itself to equalizing or benefiting the persons transferred. Equity dictates, however, that the regulations made by the President for such transfer shall be equity to officers trans- ferred. This has been done by prescribing that the officer transferred shall retain his relative rank at the date of the transfer. The in- creases authorized by the national-defense act were by the act itself divided into increments, and it is but a logical conclusion that each increment should constitute a separate and distinct addition to the Regular Army, except when two or more are added at the same time as has been those on May 15, 1917. When the first increment was added, certain vacancies which were thereby caused or created on July 1, 1916, were reserved for officers who were to be transferred when their eligibility should be determined. There was, therefore, nothing in the way of assigning to those officers when transferred constructive dates of transfer corresponding with the vacancies Avhieh existed on the dates constructively adopted and were reserved for those officers. All vacancies to which transfers might be made which were created or caused by the first increment have now been filled, and there are therefore no vacancies created or caused by that increment to which the transfer of an officer can relate back in fixing a constructive date of transfer. Therefore, officers now transferred to another arm under the proviso quoted must take the relative rank which they had when the vacancies to which they are transferred occurred, there being no authority of law for disturbing, in order to benefit officers transferred to vacancies created by other increments, the relative rank established bv the completion of the first increment. A disturbance of the rela- tive rank established by the completion of the first increment would not lessen the inequalities of promotion due to the increase in the number of officers of the line of the Army as defined above, and therefore would not come within the purpose or authority of the national-defense act. Ops. J. A. G. 82-200, May 23, 1917. RATION SAVINGS: Expenditure of. A detachment of soldiers kept a cow for the production of milk for the detachment mess, and the question was presented whether it was legal to purchase feed for the cow from the ration savings in view of the requirement of paragraph 1220, Army Regulations, that " such savings shall be used solely for the purchase of articles of food." Held, that the purpose of the regulation being simply to require that funds appropriated by Congress for the subsistence of soldiers shall be used for no other purpose, either directly or indirectly, the expenditure of ration savings for feed for the cow under the circum- stances would not be in violation of the regulation, such expenditure resulting in the procurement of milk for the soldiers. Ops. J. A. G. 40-211, June 30, 1917. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 41 RESERVE OFFICERS' TRAINING CORPS: Commutation of subsistence. Upon the question as to whether in ease the exigencies of the serv- ice require the relief of the professor of military science and tactics at an institution at which one or more units of the senior division of the Reserve Officers' Training Corps have been established, leaving on duty only enlisted men detailed under section 46 of the national- defense act, in the absence of a commissioned officer can the " mili- tary training prescribed by the Secretary of War " under section 50 of the national defense act of June 3, 1916, be so carried on as to entitle the members of the senior division at the institution, who have complied with all requirements so far as they are concerned to be paid the commutation of subsistence provided by said section 50. Held, that the presence of an officer of the Army, active or retired, a^ professor of military science and tactics is a condition for the maintenance of a unit of the training corps under instruction at the particular institution; and that, in the absence of such instruction, the " military training prescribed by the Secretary of War," as con- templated by the national defense act, can not be carried on so as to entitle the members of the senior division of such training corps to be paid the commutation of subsistence provided by section 50 of 1 Ops. J. A. G. 56-100, July 2, 1917. VETERINARY SURGEONS: Age qualifications for appointment. The question was presented whether the provision of the act of May 12, 1917 (Army appropriation act), amending section 24 of the national-defense act, so as to provide new age limits for appointments to the grade of second lieutenant, affected the eligibility for appoint- ment as assistant veterinarians under section 16 of the national- defense act. Held, that, since the provision of section 16 of the national-defense act governing the eligibility of persons for appointment as assistant veterinarians is not dependent upon or affected by the provisions governing the eligibility for appointment as second lieutenant found in section 24 of that act, the amendment of section 24 by the act of May 12, 1917, does not affect the provision relative to appointments as assistant veterinarians found in section 16 of the national defense Ops. J. A. G. 64-261, June 23, 1917. DECISIONS OF THE COMPTROLLER OF THE TREASURY. CIVILIAN EMPLOYEES: Compensation. With reference to the provisions in the various annual appropri- ation acts for the fiscal years 1918 for 5 and 10 per cent increases in compensation of civilian employees, Held, that persons employed by the Government from day to day, or to do a particular job, or whose compensation is not fixed by law or regulation, but by agreement at the time when the services are engaged, are not entitled to the percentage increases of compensa- tion under the statutes referred to, such persons not being employees of the United States within the meaning of such statutes. Comp. Treas. June 28, 1917. 42 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. CIVILIAN EMPLOYEES: Medical and hospital treatment. Section 9 of the injured-employees' compensation act of Septem- ber 7. 1916 (39 Stat. 743), provides: " That immediately after an injury sustained by an employee while in the performance of his duty, whether or not disability has arisen, and for a reasonable time thereafter, the United States shall furnish to such employee reasonable medical, surgical, and hospital services and supplies unless he refuses to accept them. Such services and supplies shall be furnished by the United States medical officers and hospitals, but where this is not practicable shall be furnished by pri- vate physicians and hospitals designated or approved by the com- mission and paid for from the employees' compensation fund. If necessary for the securing of proper medical, surgical, and hospital treatment, the employee, in the discretion of the commission, may be furnished transportation at the expense of the employees' compen- sation fund." Held, that under this act United States hospitals and facilities are free to injured employees of any department of the Government, and that the appropriations for the various executive departments or other Government establishments or services may not lawfully be reimbursed from the compensation fund provided for injured Gov- ernment employees for the cost of medical or hospital treatment of such employees unless such treatment was furnished by private physicians or hospitals at the cost of the executive department, es- tablishment, or service seeking reimbursement. Comp. Treas. June 27, 1917. CIVILIAN" EMPLOYEES: Pay while attending- reserve officers' training camps. Held, that an employee of the United States on leave of absence and attending an officers' training camp as a candidate for a com- mission in the Officers' Reserve Corps of the Army may not lawfully receive his regular compensation as a civilian employee for such period in addition to pay as such candidate when the annual rate of the combined compensation so received exceeds $2,000, in view of the act of August 29, 1916 (39 Stat. 582), amending section 6, act of May 10, 1916; and further, that he can not elect to refuse his military pay in order to accept the pay of his civil position. Comp. Treas. June 25, 1917. EIELD CLERKS: Compensation. The question was presented whether Army field clerks and field clerks. Quartermaster Corps, are entitled to the benefits of the pro- vision in the Army appropriation act, approved May 12, 1917, for 5 and 10 per cent increases in the compensation of " all civilian em- ployees in the Military Establishment." Held, that Army field clerks and field clerks, Quartermaster Corps, not being regarded as civilian employees, they are not entitled to the benefits of the statute mentioned. Comp. Treas. June 14 and 27, 1917. OFFICERS' RESERVE CORPS: Mileage. Upon the question whether officers of the Officers' Reserve Corps of the Army are entitled to mileage for travel in joining their first duty station under War Department orders, DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 43 Held, that the provision in section 38, national defense act of June 3, 1916, that members of the Officers' Reserve Corps " shall be entitled to the pay and allowances of the corresponding grades in the Begular Army * * * from the date upon which they shall be required by the terms of their orders to obey the same," clearly entitles such officers to mileage for the travel performed, mileage being an allow- ance. Convp. Treas. June 6, 1917. RETIRED OFFICERS: Longevity increases for active duty. The act of May 12, 1917 (Pub. No. 11, p. 10) , provides : "That hereafter any retired officer of the Army who has been detailed to active duty, and who has since his retirement served on active detail, shall be entitled to increases of longevity pay to be computed as provided by existing statute for the computation of longevity pay, for the time of his service before retirement and on active detail since his retirement." Held, that under this legislation, which is to be read in connection with the last proviso of section 24, national defense act of June 3, 1916, retired officers coming within its operation are entitled to increases of longevity pay, on account of active service rendered since retirement, not only while on such active duty but also after they have been relieved from such duty. Held further, that the act in question deals also with allowance of longevity credit for all active service rendered by such officers >ince retirement, including any such service rendered before the passage of the act of May 12, 1917. Conip. Treas. June 7, 1917. TRAVEL PAY: Enlisted man discharged with view to acceptance of com- mission. An enlisted man of the National Guard was discharged with a view to his acceptance of a commission, but he failed to qualify physically for the commission. Upon the question whether he was entitled to travel pay as a discharged enlisted man, Held, that the soldier's discharge as an enlisted man to enable him to accept a commission, which he failed to obtain by reason of physi- cal disqualification, was a discharge from the service within the law authorizing travel pay to enlisted men upon their discharge from the service; but contra if he had succeeded in being immediately mustered in in the same regiment as an officer — in such event he would not have been "discharged from the service " within the mean- ing of the travel-pay law, but would have been continued in the service in a higher grade. Comp. Treas. July 25, 1917. TRAVEL PAY: Enlisted men on discharge. An enlisted man was arrested and tried by the civil authorities on a charge of burglary. His trial resulted in conviction, but the sen- tence was supended and the soldier returned to the military authori- ties. About a month thereafter he was discharged by order of the department commander because " convicted by a civil court of the crime of burglary." The question was presented whether he was entitled to travel pay upon his discharge. Section 126, national defense act of June 3, 1916, declares that enlisted men when dis- 44 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. charged from the service, "except by way of punishment for an offense," shall be entitled to the travel allowances therein provided. Held, that upon the discharge of a soldier he is entitled to travel pay unless his discharge was (a) by way of punishment for an of- fense, (b) by way of favor or for his own convenience, or (c) he was withdrawn from the military service by the civil authorities, and that in the instant case the soldier must be regarded as having by his own conduct created the conditions which caused his separation from the military service under ( Stat. 110), authorizing the payment of a sum equal to three months' pay to any honorably discharged soldier upon his reenlistment within three months after his discharge : Hi /c/, That the three months' gratuity authorized by the act of May 11, 1908, upon the reenlistment of an honorably discharged sol- dier is not a bounty within the prohibition of the act of May 18, 1917. and that the former act was not repealed bv the latter. Ops. J. A. G. 72-030. Sept. 26, 1917. PAY AND ALLOWANCES II, A 2 : Subsistence of officers on Army trans- ports. There is no authority of law for the allowance of free subsistence to officers stationed on Army transports. Ops. J. A. G. 94-100, Oct. 15. 1917. Naval officers in charge of naval gun crews on United States Army transports are not entitled to their subsistence at Government ex- pense. Ops. J. A. G. 94-124.1, Oct. 8, 1917. PUBLIC PROPERTY I : Illegal sale. Where an officer sold an old storehouse on a Government reserva- tion under instructions from the War Department, but without the inspection and survey required by section 1241, Revised Statutes: Held, That the sale was illegal, and, as the money had not been de- posited in the Treasury, the officer should be directed to refund the same to the purchaser and, after submitting the property to inspec- tion, to sell it in accordance with the method prescribed by para- graph 680, Army Regulations. Ops. J. A. G. 80-132, Sept. 26, 1917. 62 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. RANK II: Effect of service in National Guard for purpose of determining rank. The National Guard as an organization never becomes federalized. Its members become a Federal force only when drafted into the Army of the United States, and its officers become officers of the United States only when, upon the draft, they become appointed officers of the Army of the United States. Therefore service as a commissioned officer of the National Guard as such, either out of the service of the United States or in the service of the United States, for constitu- tional purposes, can not be counted in determining rank within sec- tion 1219, Eevised Statutes. In determining rank of officers of the Army of the United States. Eevised Statutes, section 1219, and the one hundred and nineteenth article of war must be construed together. The one hundred and nineteenth article of war has to do with arranging all officers in the service of the United States into classes and specifying the order of precedence of these classes. Revised Statutes, section 1219, finds its field of operation only in determining rank inter sese between officers of the same grade and date of appointment within a single one of the several classes enumerated in the one hundred and nineteenth article of war. Ops. J. A. G. 82-200, Oct. 17, 20, 22, 1917. MEMORANDUM FOR THE ADJUTANT GENERAL. 82-200. October 17, 1917. Subject: Whether service as a commissioned officer in the National Guard in the service of the United States, or otherwise, may be counted as service as a commissioned officer of the United States for the purpose of determining rank of officer of the Army of the same grade and date of appointment. 1. This question has been before this office several times, but has never been comprehensively considered. There seems to be a diver- sity of view within the department itself to which certain opinions and expressions of this office have contributed. I have before me at the present time the question of the relative rank of four brigadier generals now on duty with the Twenty-eighth Division, and in con- sidering that case it is deemed opportune for this office now to en- deavor to give final expression to its views. Fair examination of the question will show that it is neither obscure nor difficult. 2. At the base of the matter we find the following statutes : "Art. 119. Bank and precedence among Regulars, Militia, and Vol- unteers. — That in time of war or public danger, when two or more officers of the same grade are on duty in the same field, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade. In the absence of such assignment by the President, officers of the same grade shall rank and have precedence in the fol- lowing order, without regard to date of rank or commission as between officers of different classes, namely : First, officers of the Regular Army and officers of the Marine Corps detached for service with the Army DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 63 by order of the President ; second, officers of forces drafted or called into the service of the United States ; and, third, officers of the volun- teer forces: Provided, That officers of the Regular Army holding commissions in forces drafted or called into the service of the United States or in the volunteer forces shall rank and have precedence under said commissions as if they were commissions in the Regular Army ; the rank of officers of the Regular Army under commissions in the National Guard as such shall not, for the purpose of this article, be held to antedate the acceptance of such officers into the service of the United States under said commissions." Section 1219, Revised Statutes: " In fixing relative rank between officers of the same grade and date of appointment and commission the time which each may have actualty served as a commissioned officer of the United States, whether continuously or at different periods, shall be taken into account. And in computing such time no distinction shall be made between service as a commissioned officer in the Regular Army and service since the nineteenth day of April, eighteen hundred and sixty-one, in the volunteer forces whether under appointment of commission from the President or from the governor of a State." It is to be observed that section 1219, Revised Statutes, applies to officers of the Army, without express regard to classes; and that the one hundred and nineteenth article has to do with arranging all officers in the service of the United States into classes and specifying the order of precedence of these classes. Obviously, an officer of the senior class will rank any officer of the same grade in a junior class, regardless of respective dates of appointment or other incidents of office. In the determination of rank as between officers of the same grade and date of appointment of the different classes enumerated in the one hundred and nineteenth article, section 1219, Revised Stat- utes, can have no application whatever, and, construing the two statutes together as they must be construed, the latter finds its field of operation only in determining rank inter sese between officers of the same grade and date of appointment within a single one of the several classes enumerated in the article. Inasmuch as, as a practical present-day matter, we are no longer concerned with volun- teers, nor with the National Guard called into the service of the United States, in which capacity none such are now serving, the question specifically applied is, whether such commissioned service in the National Guard shall be counted in determining rank where grade and date of appointment are the same between (1) Regular officers (and Marines attached), and (2) all other officers of the Army, which term includes (a) officers of organizations composed of erstwhile members of the National Guard, (b) officers of the so- called National Army, a term applied to all other additional forces, and (c) reserve officers, who fall within the same class. 3. But, preparing to apply the rule of the statute to the present inquiry, what is actual service as a commissioned officer of the United States ? In the first place, it must be observed that the service is required to be service as a commissioned officer of the United States. The service must be as such commissioned officer, perhaps not neces- sarily as a de jure but certainly as a de facto officer of the United States. The office must be an office of the United States, established 64 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. in all respects by the laws of the United States, and the appointment must be made in the manner provided by the Constitution and laws of the United States. The method of appointment of officers of the United States is found prescribed in section 2, article 2 of the Constitution, which in relevant portion is as follows: " He (the President) shall nominate and by and with the advice and consent of the Senate shall appoint * * * all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law, but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." All officers of the United States must be appointed in accordance with the above provision of fundamental law. National Guard officers are not so appointed. They are appointed by and under State sovereignty. Furthermore, by the context, the section clearly has reference to service in the Army of the United States. Service in the National Guard, whether when called into the Federal service or otherwise, can not be the service defined which the statute requires. The officers of the National Guard are not officers of the United States, and the National Guard itself, whether within or without the service of the United States, is no part of the Army of the United States. 4. Whatever be the degree of Federal control over the National Guard, when it is not in the service of the United States or when it is, that institution is primarily a State institution; its officers are State military officials, appointed by the governor and subject largely to his and other local control. The sharp legal and historical dis- tinction between National Guard of the several States, an alter nomen for the militia of the several States, and the Army of the United States is fundamental, and can not be broken down or obscured by legislation, and the existing legislation has no such effect. To be sure, the National Guard under the national-defense act is something other than the National Guard as it had existed under the Dick bill and as it- had existed prior to the Dick bill. It can not be said, however, that it is, or can be, divested of its fundamental militia status. True, under existing legislation there is superimposed upon the militia status of the individual another obligation, namely, the obligation to serve in the Army of the United States Avhen the individual militia- man is drafted therein. But, obviously, that obligation adds nothing whatever to the national power which Congress, under its authority to raise and support armies, could otherwise have asserted over mem- bers of the Organized Militia, regardless of such personal obliga- tions. Members of the Organized Militia are subject to be drafted into the Army of the United States, as are all other citizens of the United States, and the personal obligation upon their part adds naught to that national power. The militia status of the National Guard remains unaffected up to the point where the individual members thereof are by draft placed into the Army of the United States. Whether the National Guard, therefore, be not in the service of the United States, or whether it be called into the service of the United States as such for the constitu- DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 65 tional purpose " to execute the laws of the Union, suppress insurrec- tion, and repel invasion," it is still a State force, and its relation to the Federal Government is that of a State military force subject, under the Constitution, to be requisitioned as such for limited Fed- eral purposes. The organization never becomes federalized. Its members become a Federal force only when drafted into the Army of the United States, and its officers become officers of the United States only when upon the draft they become appointed officers of the Army of the United States. 5. The national defense act never loses sight of this distinction. The constitutional power of Congress to call the militia into the Fed- eral service is invoked, for instance, by section 101 of the bill, which contemplates the call of the National Guard as such; that is, as Organized Militia for the specified constitutional purposes. When in the active service of the United States under such a call the militia serves as militia of the several States. But an entirely different con- stitutional power is invoked by section 111 of the national-defense act. That section provides for the draft of the members of the militia into the Army of the United States for general war purposes. There the constitutional power of Congress to raise and support armies is invoked, and in such a case the members of the National Guard are drafted not as members of the National Guard or militia, nor do they serve as militia, but as members of the Army of the United States. There is no such thing, then, as drafting the National Guard into the Federal service as such; only its members as indi- vidual citizens are drafted. The National Guard, with its officers, its organizations, and its organizational relations, is not drafted. That this is so the act clearly recognizes. It provides for the draft of " any or all members " of the National Guard and of the National Guard Reserve. It refers to the members of the National Guard as " persons so drafted." It requires that the persons so drafted " shall be embodied in organizations corresponding as far as practical to those of the Regular Army, or that they be otherwise assigned as the President may direct." It provides for the commissioning, by the President, of the officers of said organizations; and, most potent of all, provides that " all persons so drafted shall from the date of their draft stand discharged from the militia." There is absolutely no con- nection, in the eyes of the law, between the status which an individual occupies as a member of the National Guard and the status which he occupies after he has been drafted into the service of the United States, and there is no connection between those two status. The service of an officer in the former capacity is not service as a commis- sioned officer of the United States, nor is k service in the Army of the United States. The service of an officer in the latter capacity is, of course, service as a commissioned officer in the Army of the United States. Nor is this distinction obliterated by the fact that section 1 of the national-defense act includes as one of the component elements of the Army of the United States " the National Guard while in the service of the United States." The National Guard called for consti- tional purposes into the service of the United States is obviously not a part of the Army, the entire act preserves the distinction, and the phrase quoted can have reference only to the members of the National Guard drafted into the Army. 151738—20 5 66 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. It is obvious, therefore, that service as a commissioned officer of the National Guard when not in the service of the United States, or when called into the service of the United States for constitutional pur- poses, can not constitute the service which section 1219 of the Re- vised Statutes contemplates. 6. But there is a suggestion that the one hundred and nineteenth article of war, wherein it establishes an order of class precedence placing the militiaman in the service of the United States ahead of the volunteer, operates as a repeal of section 1219, Revised Statutes. But, as hereinbefore adverted to, the evident purpose of the one hundred and nineteenth article of war was to arrange the order of precedence of the several classes of the commissioned officers of the forces in the service of the United States, and not to determine the rank and precedence as among the officers of the different classes. Whatever inference may be had from ranking the National Guard called into the service of the United States ahead of the volunteer as a class, that inference can not go so far as to operate as a repeal of section 1219, Revised Statutes. The sections can stand together. Indeed, considering their different purposes, there is ho conflict be- tween them. They are not even in pari materia, and there can not be found the slightest authority among all the principles of statutory construction for holding that section 1219, Revised Statutes, was in the least impaired by the change of precedence in class in the one hundred and nineteenth article of war. If those who framed the new one hundred and nineteenth article had intended to accomplish what some think they did accomplish by that article, they should have amended section 1219 of the Revised Statutes. 7. I know there was an expression in a recent opinion by this office upon the same subject which tends to confuse the distinction between an officer of the National Guard who had been drafted as an indi- vidual into the Army of the United States and thereupon appointed by the President as an officer, and his status as an officer of the Na- tional Guard called into the Federal service as such, but that expres- sion was inadvertent, and the attention of the office was not especially directed to it. And, further, in an opinion by this office dated No- vember 16, 1916, it was said that service as a commissioned officer of the National Guard called into the service of the United States was commissioned service within the meaning of said section 1219. Re- vised Statutes, but for the reasons hereinbefore advanced, in my judgment that opinion of this office was clearly wrong and proceeded upon erroneous reasons. The reasoning there employed was that the term " volunteer forces " as used therein had reference to all forces in the actual service of the United States other than the Regular Army. But this reasoning is beside the point, as the statute itself requires service as a commissioned officer of the United States, and the distinction made in the concluding sentence of the section is for the purpose of establishing a parity for the purpose between service in the Regular Army and in the Volunteers, and not for the purpose of including within the service defined by the statute any service not rendered as a commissioned officer of the United States. But that reasoning is otherwise erroneous. The term " volunteer forces " as there used could not have included service in the Organized Militia called in the service of the United States, for the statutes as they existed at that time, and as they still exist, make a specific distinction DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 67 between the "volunteer forces" and the militia called into the serv ice of the United States. See the old one hundred and twenty-fourth article of war (as well as the present one hundred and nineteenth article of war). That article established the order of precedence of the several classes as Regulars, Volunteers, and the Militia, called into the service of the United States in the order named. So the law remained until the article was amended in 1910, so as to exchange the position of the Volunteers and the Organized Militia in the serv- ice of the United States and place the Organized Militia so it would have rank and precedence as a class over the Volunteers; and, of course, the one hundred and nineteenth article of war does no more than preserve that precedence. While the order of precedence as between classes was changed, section 1219 of the Revised Statutes, establishing rank within classes, remained amended. 8. As another reason this office said: " The National Guard in the service of the United States during the last few months has served in the same capacity as would any volunteer forces under the same circumstances, and the benefits of training incident thereto have presumably been equal to those which would have obtained in a volunteer force of the strictly legal char- acter." But there the opinion distinctly enters the field of legislation. Besides, that reasoning involves a fact which may be open to dispute. Moreover, as a legal concept, the distinction between the volunteer and the National Guardsman called into the service of the United States for constitutional purposes can not be thus dismissed. The volunteer was a part of the Army of the United States; the National Guardsman under those circumstances is not. The volunteer was sub- ject to the performance of military duty the world over; the National Guardsman only within the territorial limits of the United States. The primary purpose of the one was to fight the battles of this country wherever the war might be waged ; the primary function of the other is to preserve the peace and repel invasion. True it is that when engaged in the same theater the officer called into the service for constitutional purposes and the officer who has been appointed in the drafted forces now rank together, and both rank the volunteer in the same theater, and both rank behind the regular. But when the officer of the National Guard called into the service of the United States figures in the classification, the military forces are operating at home. When thus operating there could in fact be cogent reasons for ranking the National Guardsman as a class ahead of the volunteers. The law requires that in such circumstances the National Guardsman shall be called out first. While thus engaged in defense of the home soil, placed there by virtue of his position as a National Guardsman, in advance of the volunteer, whose primary purpose is not ordinarily for such local defense, his order of precedence ahead of the volunteer may for those reasons alone be justified. It does not follow, however, that when the officer of the National Guard is divested of his status as a National Guardsman and is no longer serving as such, but is appointed to and serving in the Army of the United States, that he should be permitted to count the service which was not rendered in the establishment to which he has been appointed.* I am reminded also that National Guard officers drafted into the Army of the United States have been held by the comptroller to be entitled to count their 68 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. service in the National Guard for purposes of computing longevity pay, but that is beside the question. Rank here is a mere matter of the statute, to be determined under the statute and not by general considerations of service and compensation therefor. 9. For the reasons herein advanced I am convinced that an officer of the Army of the United States may not count his commissioned service in the National Guard when called into the service of the United States for constitutional purposes in order to establish his rank as over other officers of the same grade and date of appointment who have had former commissioned service as an officer in the Army of the United States. RANK II: Method of determining. Under the thirty-eighth section of the national-defense act of June 3, 1916, and the one hundred and nineteenth article of war, captains in the Regular Army assigned to active duty as junior military aviators and automatically thereby obtaining the rank of major out- rank and have precedence over officers of the same grade in any forces drafted or called into the service of the United States, such as the Officers' Reserve Corps. Ops. J. A. G. 82-200, Oct. 12, 1917. STATE LAWS: Applicability of, to Federal operations. In connection with certain construction work on a military reser- vation by a contractor, the State authorities called upon the con- structing quartermaster to make a deposit with the State treasurer of 1^ per cent of the pay of the workmen engaged in hazardous work — upon scaffolding and the like — in accordance with the re- quirements of the State law. Held, That the State authorities were without jurisdiction to re- quire the deposit demanded, for the reason that the operations of the Federal Government are entirely beyond the power of State regulation ; and for the further reason that the work in question was carried on within a military reservation over which the State had ceded its jurisdiction. Ops. J. A. G. 76-050, Sept. 5, 1917. UNIFORM I : Right of reserve officers to wear. A reserve officer not called into active duty is not authorized to wear the uniform of the United States Army. Ops. J. A. G. 96-140, Oct. 30, 1917. UNIFORM I: Right of Home Guards to wear. Home Guards may not, without authority therefor from the Sec- retary of War, wear any uniform which bears a prohibited similarity to the uniform of the United States; but the Secretary of War has power to grant such authority on condition that the uniform bear some mark or insignia distinguishing it from the uniform pre- scribed for the United States Army. Ops. J. A. G. 58-980, Oct. 17, 1917. WAR I, C: War powers of Executive. The Executive has power in time of war, when reasonable necessity ftxisita t.hftrp.for. to take the necessary means to prevent the flying DIGEST OF OPINIONS JUDGE ADVOCATE GENEKAL OF ARMY. 69 of aircraft during war, except such as is permitted by the War Department. Ops. J. A. G. 6^228.1, Oct. 11, 1917. NOTES ON ADMINISTRATION OF MILITARY JUSTICE. SENTENCES: Dishonorable discharge. Iii a recent case the court imposed a sentence of dishonorable dis- charge, total forfeitures, and confinement at hard labor for two years (mitigated to one year by the reviewing authority) upon a soldier convicted of having "a rusty pistol for inspection" and failing "to clean his pistol" after having been "directed" and "having received a lawful order" to do so. The Judge Advocate General, in recom- mending that the unexecuted portion of the sentence be remitted and that the soldier be restored to duty upon his written application therefor or be allowed to reenlist if he so desires, made the following comment : "In time of war, when the Nation is straining every nerve to build up a large and efficient Army and is even resorting to a selective draft for the purpose of procuring men, it seems incongruous and inconsistent to impose a sentence of dishonorable discharge for such an offense as is shown to have been committed in this case. To re- quire the Government to guard and subsist this man for a year while he performs no service, in face of the fact that his offense could have been more effectively punished by disciplinary measures not involv- ing dishonorable discharge, is to impose an unnecessary burden upon the Government and possibly to subject some other citizen to com- pulsory military service in his stead." TRIAL: Evidence; Improper questions. hi several recent cases each of the judge advocates, in begin- ning the examination of witnesses, propounded a general question practically involving a verbatim reading of the charges and specifica- tions and concluding with a request that the witness state to the court what he knows about the case. Such practice is loose and ob- jectionable, as encouraging irrelevant and hearsay testimony, and should be discontinued, as it constitutes a leading of the witness. He is thus instructed as to the particulars about which he is to testify and the charge he is expected to substantiate. A witness should properly be examined on specific interrogatories and not be called upon to make a general statement of what he knows about the matter under investigation in answer to a single general question. (Dig. Ops. J. A. G. 1912, 531, note 2.) CHARGES OF OFFENSES. The review in this office of records of trial by general court-martial discloses a quite general practice of bringing charges for offenses committed prior to March 1, 1917, under the new Articles of War, which became effective on that date. Especially is this true with respect to charges of desertion. Section 5 of the act of August 29, 1916, containing the new Articles of War, provides for the continuance in force of the old articles for the prosecution of offenses committed prior to March 1, 1917. 70 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. While the error referred to above is not fatal to the validity of the trial, the practice of laying charges under the new articles for offenses committed prior to their taking effect is irregular and should be dis- continued. For all offenses committed prior to March 1, 1917, the charges should be brought under the old articles. DECISIONS OF COURTS. SELECTIVE DRAFT ACT : Constitutionality. Maurice Sugar and others were indicted for conspiracy to aid and procure persons to violate the act of May 18, 1917. On motion to quash the indictment, the court held that the act does not violate the thirteenth amendment forbidding involuntary servitude; that it does not violate the fourteenth amendment forbidding abridgment of privileges or immunities of citizens; that it does not violate the fifth amendment, or the constitutional inhibition of the delegation of legislative or judicial powers to an executive officer; that the provi- sion for the raising of an army by draft is a proper exercise of the power of Congress to raise and support armies; that the drafting of the National Guard does not call forth the State militia as such; and that the act is constitutional. United States v. Sugar, U. S. Dis. Ct. E. D. Mich. July 10, 1917, 243 Fed. 423. John Story was imprisoned under commitment for unlawfully failing to register for military duty as required by the act of May 18, 1917, and made application for a writ of habeas corpus. In denying the writ the court held the act constitutional, overruling the contention that its provisions violate the thirteenth amendment. It also specifically met the argument that the petitioner had the right to remain in the realm and could not be drafted for service overseas by saying: "But our organic law does not so shackle the gigantic energies of the great Republic. After the enumeration of the powers of Congress, among them, as we have seen, ' the power to raise and sup- port armies,' in clause 18 of article 1, section 8, it provides the power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof.' Here is the great reservoir of power to save the national existence. " It is said that there is no express power to send armies beyond the sea. True; but there is no express power to enact the criminal laws of the United States: none to convey the oublic domain, to build transcontinental railroad nor to construct the Isthmian Canal; nor to create the Interstate Commerce Commission; nor to declare the Monroe Doctrine; nor to make the Louisiana Purchase; nor to buy Alaska; or to take over Porto Rico and the Philippines. This has all been done under the great power to promote the general welfare, just as the selective army will be created under the law here assailed ' to provide for the common defense.' And beyond and above all is the inherent power of every nation, however organized, to utilize its every man and its every energy to defend its liberty and to de- DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 71 feat the migration to its soil of mighty nations of ferocious war- riors, whose barbarous inhumanity for three years has surpassed all others since the death of Attila, the Scourge of God." Story v. Perkms, U. S. Dist. Ct. S. D. Ga., 243 Fed., 997. SELECTIVE DRAFT ACT: Constitutionality; Finality of decisions of local boards. John Angelus, a citizen of Austria, claimed exemption before a local board on account of alienage and filed an affidavit in support thereof. The local board denied his claim, and the district board affirmed the action of the local board. Angelus brought a bill in equity to restrain the local board from certifying his name to the military authorities for military service. The district court dis- missed the bill for lack of jurisdiction, saying: " I think Congress had no intention that the courts should inter- fere with this drafting proposition. It is a military measure in time of war, and it would be most subversive of military control and the proper disposition of this extremely difficult neAv problem if the courts should interfere in this situation. If Congress had intended that the courts should review the action of the local and district boards, it would have so provided, and unless an appellate court says to the contrary I am of the opinion that a district court of the United States should resolve any doubt in favor of the Gov- ernment; any other view might tend seriously to embarrass the work of raising an army with its manifold difficulties and its tremendous detail. If those who believe they are entitled to exemption were able to apply to the courts, it would be a most disturbing situa- tion and directly contrary to my understanding of the intent of Congress. Congress intended this to be an executive measure, to be carried out by the executive branch of the Government without interference of the courts." Upon appeal the Circuit Court of Appeals affirmed the order of the district court, holding that, under the power to raise and sup- port armies, Congress has the right to raise armies by conscription, and that it did not by the terms of the act unconstitutionally dele- gate its powers to the President. As to the proper jurisdiction of the local and district boards, the court said : " But it is said that the act is unconstitutional in that it deprives the complainant of his liberty without due process of law, contrary to the fifth amendment of the Constitution, which declares that no person shall be deprived of life, liberty, or property without due process of law. The Supreme Court has, however, held that a judicial trial does not prevent in every case. Murray's Lessee v. Hoboken Land <& Improvement Co., 18 How., 272, 280, 1855. And in United States v. Ju Toy, 198 U. S., 253, 263, 1905, the court, speaking through Mr. Justice Holmes respecting the Chinese ex- clusion act, under which the decision of the Department of Labor is final as to the exclusion, said : ' If for the purpose of argument we assume that the fifth amendment applies to him and that to deny entrance to a citizen is to deprive him of liberty, we never- theless are of the opinion that with regard to him due process of law does not require a judicial trial.' That the decision of the question whether a person of Chinese descent was born in the United States and therefore entitled to enter the country, or whether he 72 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY was born in China and under the exclusion act not entitled to enter, may be intrusted to an executive officer whose decision is final and that it is due process of law, is established law. We see no reason why the same doctrine is not equally applicable to the case in hand. And we therefore hold that the complainant is not deprived of due process of law bybeing compelled to submit to the final decision of the local and district boards the question whether he is a subject of Austria-Hungary and whether he has not declared his intention to become a citizen of the United States. ******* " If the complainant is, as he alleges, a subject of Austria-Hungary and has never declared his intention to become a citizen of the United States, as he also alleges, it is perfectly clear that he is not subject to the draft. Whether his allegations in this respect are true must, however, be determined in the manner prescribed by the act. " It appears from the allegations of the complaint that the com- plainant filed an affidavit claiming exemption by reason of the fact that he was an alien and that the local board denied his application and that he appealed to the district board, which affirmed the local board. It thus appears that the complainant was heard, and it is nowhere alleged that he was denied a full hearing or that the board rejected or refused to consider any evidence that he was entitled to present. In the absence of such a showing we have no doubt that the decision of the board is final and can not be interfered with by the courts. " We do not, however, agree with the statement of the district judge heretofore quoted that there can be no interference of the courts in the action of these boards. We think a decision of the boards is final only »vhere the board has proceeded in due form and where the party in- volved is given a fair opportunity to be heard and to present his evi- dence. But if an opportunity to be heard should be denied, there can be no doubt as to the right of the aggrieved party to come into the courts for the protection of his rights. And we do not believe that the district judge meant to say that a decision must be regarded as final under such circumstances. " The law courts have a general superintending control by certi- orara over all inferior tribunals acting in a judicial or quasi judicial character. And jurisdiction is not entirely taken away by the words of a statute which declares that the judgment of the inferior tribunal shall be final. " There can be no doubt, therefore, that under the conscription act, where a board has denied a full and fair hearing to an indi- vidual claiming exemption from military service, he might, if re- strained of his liberty, sue out a writ of habeas corpus and obtain his liberty. " But whatever remedy the complainant may have or not have there can be no doubt that he is not entitled to the relief he asks in his bill of complaint. * * * " While disagreeing, therefore, with the opinion expressed by the district judge that the courts can not interfere with the action of the boards and holding as we do that the civil courts can afford relief from orders made by such boards in any case where it is DIGEST OF OPINIONS JUDGE ADVOCATE GENEBAL OF ARMY. 73 shown that their proceedings have been without or in excess of their jurisdiction or have been so manifestly unfair as to prevent a fair investigation, or that there has been a manifest abuse of the discretion with which they are invested under the act, we never- theless approve the conclusion he reached that the bill should be dismissed." Angelus v. Sullivan, U. S. C. C. A. 2d Circ. October, 1917, 45 Wash. L. Rep. 691. SELECTIVE DRAFT ACT: Exemptions. Held, That a person who enlisted in the Regular Army for seven years in the year 1914 and purchased his release and was honorably discharged in April, 1916, was not exempt from the draft ; that the act of May 18, 1917, specifies the exempted classes in clear and un- ambiguous language, and ought not to be enlarged by judicial con- struction. The petition for the writ of habeas corpus was accord- ingly dismissed. Re Jack Cohen, decided Oct, 17, 1917, by U. S. District Court for District of Mass. Blackington enlisted in the National Guard. Although he was oelow the minimum height and was suffering from a depressed fracture of the skull, he was certified by the medical examiner as being above height and fit for military service. This certification was made by the medical examiner through personal malice against Blackington. Blackington was drafted into the Federal service as a member of the National Guard and was passed by the regular medical examiners. Held, That although Blackington actually was and is unfit for military service, he has no ground for complaint. The petition for writ of habeas corpus was therefore dismissed and the writ discharged. Re Carl Blackington, decided Oct, 17, 1917, by U. S. District Court, District of Mass. PERIOD OF ENLISTMENT: National defense act; Effect of unauthorized furlough. Roach enlisted on April 24, 1914, in the Alabama National Guard for the period of three years. On June 29, 1916, he took the oath prescribed by section 70 of the national defense act. On July 1, 1916, the company of which Roach was a member was mustered into the service of the United States. On April 24, 1917, Roach requested to be furloughed to the National Guard Reserve, but his papers were not propery made out. He continued to do duty until June 22, 1917, when his company commander again sent a request that Roach be furloughed to the Reserve. While awaiting action on the request the company commander permitted him to surrender all Government property, gave him transportation to his home, and directed him to go there and await receipt of papers evidencing his furlough. On July 26, 1917, Roach's request for furlough to the Reserve was re- turned from headquarters disapproved. Shortly thereafter, and prior to August 5, 1917, Roach was informed that his request for furlough had been denied and was ordered to report back to his company for service. This he declined to do, and had an alterca- tion with the officer who ordered him to return to his company. He 74 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. was placed in the Montgomery County jail under arrest pending his trial by military authorities on the charge of striking a superior officer. He secured a writ of habeas corpus. The return of the sheriff to the writ showed that he was holding Roach under the circumstances above stated. Held, That under the provisions of the national defense act an enlisted man is not automatically furloughed to the Reserve upon the expiration of his enlistment; that the acts of the company cap- tain without the approval of the War Department could not operate as a discharge of Roach or as a furlough to the Reserve: and that Roach be remanded to the custody of the United States military authorities and his petition for discharge on habeas corpus be denied and dismissed. Ex pwte Roach, U. S. Dist. Ct. N. D. Ala. Aug. 14, 1917, 244 Fed. 625. SELECTIVE DRAFT ACT: Draft of alien minor enlisted in National Guard; jurisdiction of civil courts. Hackenberg, a native of Austria, who came to the United States in June, 1914, enlisted in June, 1915, in the National Guard of Ohio, declaring himself to be 21 years of age. On July 2, 1916, he took the Federal enlistment oath prescribed by section 70 of the national defense act, after his company and regiment had responded to the mobilization order of the President for service on the Mexican bor- der. He was mustered out of the Federal service on March 2, 1917. On July 10, 1917, he was called into Federal service, pursuant to the second paragraph of the selective draft act of May 18, 1917, and reported for duty. On July 30 he was placed under arrest, and on August 3 the charge of violating the fifty-fourth article of war by fraudulently enlisting was placed against him. Hackenberg was 18 years of age when he enlisted ; his widowed mother, who was in Austria at the time, knew nothing thereof, and is dependent upon him for support. On his behalf one Dostal made application for a writ of habeas corpus. Respondent's answer and the testimony given at the hearing developed the above facts. The court, in dismissing the petition, held as shown in the following head notes : "As national defense act, June 3, 1916, permits the enlisting of a minor over the age of 18 without the written consent of his parent or guardian, where one over 18 and under 21, who had enlisted prior to the passage of that act, subsequently took the Federal enlistment oath prescribed by section 70 thereof, the defects in his original enlistment were immaterial, and any right of the parent or guardian to reclaim his cutody or control was extinguished. " An alien, offering to enlist and accepted as a soldier, can not avoid' his contract of enlistment, and thereby escape liability for service or to punishment, especially as Comp. St. 1916, sec 1888, providing that no person who is not a citizen, or who has not made a legal declaration of his intention to become a citizen, shall be enlisted for a first enlistment, is limited to enlistments in time of peace. " There is nothing in the treaty between the United States and the Government of Austro-Hungary invalidating an enlistment by a na- tive of Austria. " National defense act, section 58 (Comp. St. 1916, sec. 3044) pro- vides that the National Guard shall consist of the regularly enlisted DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. 75 militia, etc. Section 70 provides that enlisted men in the National Guard, whose enlistment contracts contain an obligation to defend the Constitution of the United States and obey the orders of the President, shall be recognized as members thereof, and that others shall not be so recognized until they have signed the enlistment con- tract and taken the oath therein provided. Section 111 (Comp. St. 1916, sec. 3045) and selective draft law, May 18, 1917, authorize the President to draft all members of the National Guard into the mili- tary service of the United States. Held, that an order of the Presi- dent, calling a company and regiment of the National Guard into the Federal service, made a member of such company and regiment, whose original enlistment contract contained the obligation pre- scribed by section 70, and who, when previously called into the Fed- eral service, had taken the additional oath prescribed by that section, a soldier of the United States Army subject to military trial or punishment, though he had not consented to be mustered into the military forces of the United States under such order. " Where a minor enlists without the written consent of his parent or guardian an application by the parent or guardian for his release must be made with reasonable diligence after acquiring knowledge of the enlistment, and before an offense has been committed by the minor, and after an offense has been committed, and especially after he has been placed under arrest and charges have been preferred against him, it is too late for the parent or guardian to oust the juris- diction of the military authorities by an application for a writ of habeas corpus. " That an enlisted soldier has a mother, of whom he is the only support, does not make void his contract of enlistment. " One who enlisted in the National Guard, was accepted, took the prescribed oath, and later took the Federal enlistment oath, as prescribed by national defense act, June 3, 1916, c. 134, sec. 70, 39 Stat. 201 (Comp. St. 1916, sec. 3044i), and received pay and clothing over a long period from the State and Nation, is a soldier, subject to the jurisdiction of a military tribunal for any offense committed against military law, though he was under 21 when he enlisted, and enlisted without the written consent of his parent ov guardian, and though he was an alien, who had not made the declaration of his intention to become a citizen, and though he had a mother dependent upon him for support. "If a military tribunal has jurisdiction to try a person charged with an offense against military law, the civil courts can not inter- fere bv writ of habeas corpus." Ex parte Dostal, Dist. Ct. N. D. Ohio, Aug. 15, 1917, 243 Fed. 664. STATUS OF NAVAL OFFICER FOR PURPOSES OF COMPUTING PAY. "Under act March 3, 1899, c. 413, sec. 13, 30 Stat. 1007 (Comp. St. 1916, sec. 2818), providing that ' all officers, including warrant officers who have been or may be appointed to the Navy from civil life shall on the day of appointment be credited, for computing their pay, with five years' service,' which entitles the appointee to an increased rate of pay, an enlisted man who while in the service took the examination for a higher position, and having passed, and two days before his ap- pointment, and when it was practically assured, obtained his dis- charge from the service, can not be rated as an appointee from civil 76 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. life in the sense of the statute, but his appointment must be consid- ered as a promotion in the service. " Where, however, such officer was rated as an appointee from civil life, which he was according to the strict letter of the law, for a num- ber of years, and vouchers for the increased pay were approved, he is entitled to retain such pay up to the time when his rating was cor- rected." United States v. U. S. Fidelity <& Guaranty Co., U. S. Dist. Ct. E. D. N. Y., July 26, 1917, 244 Fed. 310. MILITIA: National Guard; Veteran Corps of Artillery. " Under Military Law (Consol. Laws, N. Y. c. 36), section 235, pro- viding that no person belonging to the active militia of the State shall be arrested on any civil process while going to, remaining at, or returning from any place at which he may be required to attend for military duty, and section 5, defining the ' active militia ' as consisting of the military forces known as the National Guard and the Naval Militia, the Veteran Corps of Artillery of the State of New York is neither a part of the National Guard nor of the Naval Militia, and a colonel commandant thereof, who had given a bond for the jail limits after his arrest on a body execution, was not entitled to a discharge from custody on the ground of his exemption from arrest, where he was not attending upon military duty, merely because the organiza- tion had engaged in certain preparedness work." Andrews v. Gardiner, 166 N. Y. Supp. 933. BULLETIN 72. OPINIONS OF THE JUDGE ADVOCATE GENERAL. APPROPRIATIONS: Civilian labor for police duty. It was not contemplated in any appropriation made for either the Medical Department or the Quartermaster's Corps to pay for civilian labor to do police duty at a base hospital. Such duty should be done by the enlisted personnel. ' Ops. J. A. G. 230.14. Nov. 12, 1917. APPROPRIATIONS XXIV: Expense of enforcing regulation under sec- tions 12 and 13 of the draft act. The expense of conducting investigations and procuring evidence against bootleggers, drug users, and prostitutes for violations of the regulations under the draft act can not be paid from the appropria- tion for " Contingencies of the Army." Such expense should be borne bv the Department of Justice. Ops. J. A. G. 250.11, Nov. 26, 1917. APPROPRIATIONS: Heat and light for Y. M. C. A. buildings. The appropriation for furnishing heat and light for buildings erected at private cost under the act of May 31, 1902, is not available for the installation of heating and lighting fixtures in Y. M. C. A. buildings, but only to provide the consumable supplies necessary for heating and lighting same. Ops. J. A. G. 412.1, Nov. 2, 1917. APPROPRIATIONS : Heat and light for Y. W. C. A. hostess houses. The appropriation for furnishing heat and light for buildings erected at private cost under the act of May 31, 1902, is not available for furnishing heat or light for hostess houses of the Y. W. C. A. Ops. J. A. G. 680.32, Nov. 24, 1917. ARMY I: Composition and organization. There is no legal reason why enlisted men of the Regular Army, National Guard, National Army, or other divisions of the Army may not be regarded as interchangeable or why they should not all be carried on the same muster roll. Ops. J. A. G. 220.33, Nov. 1, 1917. ARMY I G-.d: Medical Department Dental O. R. C. While the Dental Corps is included in the Medical Department for administrative purposes, it has independent functions, and since the act of October 6, 1917 (Public 86, 65th Cong.), makes the per- sonnel of that corps the same as that of the Medical Corps, except as to number per thousand, the Dental Corps is such a corps as should form the basis of an organization in the Officers' Reserve Corps. Subsection 2 of section 1 of Special Regulations 43, War 77 78 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OP ARMY. Department, 1917, may properly be amended so as to authorize the commissioning of officers in the Dental Reserve Corps of the Medical Department with the same grades and percentages within the grades as are permitted by law for the Medical Officers' Reserve Corps. Ops. J. A. G. 211.25, Nov. 9, 1917. ARMY: Organization — Supply sergeants. Provisions for supply sergeants for any organization except Engi- neers, unless the term " supply sergeant " is qualified by other lan- guage, must be construed to have reference to supply sergeants of the class provided for companies, troops, and batteries, and not to battalion supply sergeants. Ops. J. A. G. 322.56, Nov. 15, 1917. ARMY FIELD CLERKS: Service prerequisite to allowances. Under the Army appropriation act of August 29, 1916, Army field clerks after 12 years' service, 3 years of which shall have been on detached duty away from permanent station or on duty beyond the continental limits of the United States, or both, are entitled to- certain allowances. In computing the 12 years' service, service as an enlisted man can not be counted. Service as headquarters clerk prior to the passage of the act and as an Army field clerk thereafter should be counted. Ops. J. A. G. 211.1, Nov. 12, 1917. ARTICLES OF WAR LIX, C, I: Jurisdiction of civil courts. The civil authorities do not have the legal right to hold in arrest for misdemeanors persons in the military service, and it is their duty, upon request, to surrender such persons without trial to the military authorities. The Government is entitled to the services of its soldiers, and local courts should not be permitted to deprive the Government of such services. Courts-martial should be availed of exclusively for the trial of soldiers Avho offend against local or Federal liquor laws. Ops. J. A. G. 250.11, Nov. 11, 1917. ARTICLES OF WAR LXXXIII C: Limitations of sentences by summary courts. The forfeiture of pay imposed by a summary court under the Fourteenth Article of War may be extended over a greater period than three months, provided that the amount forfeited does not exceed the amount of the soldier's pay for the three months imme- diately succeeding the sentence. As a matter of policy, it is unwise to protract undulv the period of forfeiture. Ops. J. A. G. 250.41, Nov. 17, 1917. CIVILIAN EMPLOYEES XI A: Resignation without due notice. A civilian draftsman in the office of the Chief of Ordnance can not be required to continue in service against his will. But where he resigns and leaves without reasonable notice the record may show the fact, in order that the Civil Service Commission may apply its rule permitting a refusal to examine or certify an applicant who, within one year next preceding the date of his application, has resigned without due notice, to the embarrassment of the service. Ops. J. A. G. 230.81, Nov. 8, 1917. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 79 CLAIMS XII: Discipline IV, B — Fees for taking depositions. Where the law of the place where a deposition is taken does not fix any fees therefor, the civil officer before whom a deposition is taken for use before a court-martial is entitled to reasonable compensation for his services. Ops. J. A. G. 250.464, Nov. 15, 1917. CLAIMS IV, XII, P: Damage incident to operation of Army. Army appropriation act of May 12, 1917, provides for the payment of claims for damages to and loss of private property incident to the training, practice, and operations of the Army. Claims for damages incident to the operation of the Army are claims for damages which have been occasioned by an act done in connection with some move- ment or activity of the Army, and not in connection with mere main- tenance. Hence, damages caused by a Government motor truck not used in connection with movement of troops, or by a laundry wagon of a post laundry, can not be paid out of this appropriation. Ops. J. A. G. 153, Nov. 10, 1917; 152, Nov. 15, 1917. CONTRACTS XV : By officer or employee with Government. Under present statutory provisions (sec. 41 of Criminal Code; sec. 3 of act of Aug. 10, 1917) and Army Regulations (par. 521), an offi- cer or employee in the military service is prohibited from acting as an officer or agent of the Government in making any contract or placing any order with a firm or corporation in which he may have a pecuniary interest, and from inducing or advising any authorized officer to make a contract or place an order with such firm or corpora- tion. Otherwise, there is no objection to an officer or employee in the military service entering into contractual relations with the Govern- ment or owning an interest in a firm or corporation which enters into contracts with the Government. Ops. J. A. G. 161.44, Nov. 6, 7, 1917. CONTRACTS III: Emergency purchases. All purchases of military supplies are now emergency purchases and are made without advertising. Paragraph 554, Army Regula- tions, requires a report of all such purchases exceeding $100 to be made to the Secretary of War, but there is no statutory provision, at present applicable, which requires such a report, for, so far as section 3709, Revised Statutes, applies, the Secretary of War has approved such purchases in advance by his order of April 12, 1917, and the act of June 12, 1906, has no operation when all purchases are emergency purchases. Ops. J. A. G. 400.123, Nov. 26, 1917. DESERTION III, C: Apprehension and delivery of deserters. Civilian officers authorized by law to arrest offenders have power to apprehend and deliver deserters to the military authorities. When they have once arrested a deserter they may deliver him to any desig- nated point, regardless of State or other jurisdictional lines. Ops. J. A. G. 251.211, Nov. 16, 1917. DESERTION VIII : Articles of War CIII — Limitations of action. Paragraph 125, Army Regulations, and paragraph 44, Compila- tion of General Orders, 1915, are in conflict with the thirty-ninth 80 DIGEST OP OPINIONS JUDGE ADVOCATE GENERAL OP ARMY. article of war, paragraph 148, subdivision d, Manual for Courts- Martial, 1917, regarding the statute of limitations affecting desertion. The latter are controlling. The statute begins to run on the date of the commission of the offense and continues to run until the date of arraignment of the accused. Its running is suspended during the period of any absence of the accused from the jurisdiction of the United States and any period during which by reason of some mani- fest impediment the accused was not amenable to military justice. Ops. J. A. G. 251.25, Nov. 6, 1917. DESERTION V, D: Reward — Reimbursement from deserter. There is no statute requiring that the amount of the reward and other expenses incurred for the apprehension of a deserter be charged against the deserter. The requirement of paragraph 127, Army Regulations, may be waived or modified in the discretion of the Secretary of War. Ops. J. A. G. 251.211, Nov. 1, 1917. DISCIPLINE III, XIV, H: Convening authority of courts-martial — Presi- dent as confirming authority. Where the commanding officer of a tactical division serving within the territorial limits of a department is the accuser or prosecutor, the duty of ordering the court-martial devolves upon the War De- partment, since such tactical divisions have been withdrawn from the control of department commanders. And where an officer below the rank of brigadier general, belonging to such division, is sentenced to dismissal, the proceedings must go to the President for con- firmation. Ops. J. A. G. 250.42 Nov. 21, 1917. DISCIPLINE IX: Procedure of courts-martial — Effect of irregularities. The thirtieth article of war provides that when the court requires the legal advice of the judge advocate, it shall be obtained in open court in the presence of accused. Article 37 provides that errors of procedure shall not invalidate a sentence unless the proceedings show, in the opinion of the reviewing authority, that the rights of the accused have been substantially prejudiced. Failure to have accused present at a session where legal advice of the judge advocate was obtained is not material unless the substantial rights of the accused have been injured. Ops. J. A. G. 250.45, Nov. 10, 1917. EIGHT-HOUR LAW VI: Extraordinary emergency. The employment by the Government of laborers and mechanics in excess of eight hours per day, except in cases of extraordinary emergency, is prohibited. Everything necessary to be done to assem- ble, care for, clothe, shelter, feed, arm, and train the soldiers of the National Army is of immediate and imperative necessity. And in the employment of labor to carry forward any or all of these pur- poses, and in declaring in connection therewith the existence of an extraordinary emergency, a very wide discretion must be lodged in those officers charged with the performance of these duties. When such extraordinary emergency is declared, report should be made promptly to the Secretary of War. (A. R. 731.) Ops. J. A. G. 230.4423, Nov. 16, 1917. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL, OF ARMY. 81 ENLISTMENT II, C : Involuntary — Discharge of drafted men. A district board has no authority to reopen the case of a man who has been inducted into the military service ; but the local board may reopen his case upon permission or direction of the adjutant general of the State. If upon reopening the local board decides that the man should have been exempted, it will so notify the adjutant general, who will in turn notify the commanding officer at the mobilization camp. If a local board has, through error, sent a man to a mobiliza- tion camp pending his appeal, and he has been inducted into the military service, and thereafter he presents a certificate of exemption from the district board, he may be discharged by the division com- mander. Other than above stated, a commanding officer or division commander has no authority to discharge a man on the ground that he should have been exempted by the local board. Ops. J. A. G. 324.72, Nov. 22, 1917. ENLISTMENT II: Involuntary — Method of correcting rulings of local boards erroneously holding men for service. The decisions of local boards upon claims for exemptions, includ- ing those based upon alienage, are conclusive. Where a man has been erroneously certified for service through error of law or noncul- pable ignorance of the registrant, his case may be reopened by the local board upon request of the adjutant general of the State, either on his own motion or on motion of the military authorities or of the local board. Compiled rulings of Provost Marshal General, No. 12, M. Ops. J. A. G. 014.311, Nov. 2, 1917. ENLISTMENT II: Selective-draft act — Registration of slackers. A person who willfully refuses to present himself for registration or to submit thereto, as provided in the selective- draft act, should be immediately registered and thereafter prosecuted for his misde- meanor. It would defeat the purpose of the act were the involuntary registration postponed until after service of the sentence imposed for the commission of the misdemeanor. Ops. J. A. G. 324.71, Nov. 10, 1917. ENLISTMENT II: Involuntary — Procedure before local boards under selective-draft act. Local boards have no power under present presidential regula- tions to compel the attendance of witnesses, for the regulations do not contemplate the taking of oral testimony, but require the presen- tation of evidence bv affidavit. Ops. J. A. G. 013".26, Nov. 5, 1917. ENLISTMENT II, A: Involuntary — Induction into service. A drafted man was on October 6 assigned to a specified company, on October 13 was reported physically fit, on October 25 was re- jected as physically unfit, and in the evening of October 25 died. Held, that his induction into the military service was complete be- fore October 25, and that the rejection on October 25 did not, under the circumstances, operate as a discharge. Ops. J. A. G. 220.46, Nov. 20, 1917. 151738—20 6 82 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. ENLISTMENT I, B, 3 : Statutory requirements — Eligibility of women. The statutes governing enlistment in the Army do not authorize the enlistment of women. Consequently women may not be enlisted in the Ordnance Department. Ops. J. A. G. 342, Nov. 14, 1917. ENLISTMENT I, B, 3: Statutory requirements — Eligibility for Medical Enlisted Reserve Corps. Only citizens of the United States or persons who have declared their intentions to become citizens of the United States are eligible for enlistments in the Medical Enlisted Reserve Corps. Japanese and Chinese subjects and citizens of the Philippine Islands are, therefore, ineligible. Ops. J. A. G. 342.18, Nov. 24, 1917. FIELD SERVICE: Army Nurse Corps — Commutation of quarters and sub- sistence. Field service is a term of which the military mind has a fairly accurate conception, although it is not easily defined. Going to the professional books and the field-service regulations and the drill regulations, the term will be found to have reference not only to actual service in campaign or in action, but as well to an instructional service, which, though instructional, consists of the practice of those exercises and duties which are incident to campaign or action, of the application of tactical principles to assumed situations with respect to an imaginary, outlined, or represented enemy or a particular objective. As applied to the Nurse Corps, it means nothing more than the discharge of duties usually and ordinarily connected with and discharged by a nurse in a base hospital, which, as its name im- plies, is a hospital organized for actual and practical service with an army in the field. Accordingly, nurses in service at the base hos- pital of a cantonment or camp of the National Army are in field service and are not entitled to commutation of quarters, of heat or light, or of subsistence. Ops. J. A. G. 246.84, Nov. 7, 1917, citing Ops. J. A. G. 6-124.4, July 6, 1914, and 24 Comp. Dec. 106. GOVERNMENT AGENCIES, II, C: Limitations on business of post ex- changes. Post exchanges can not act as agents for private laundries, for a soldier's pay can not be stopped to satisfy a claim of a private person or business concern. There is no legal objection to the post exchange hiring the laundry done by a private laundry, thus becoming the real customer of the laundry, and in turn charging the men just and reasonable rates for having their washing done. Ops. J. A. G. 486.3, Nov. 8, 1917. INCOME TAX: Commutation of quarters, heat, and light. Money received as commutation for quarters, heat, and light is income within the meaning of the income-tax law. Ops. J. A. G. 012.22, Nov. 19, 1917. INTOXICANTS: Selective-draft act — Regulations under sections 12 and 13. The regulations of the President under section 12 of the selective- draft act prohibiting intoxicating liquors within prescribed distances DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 83 of military camps do not apply to permanent Regular Army posts. The regulations of the Secretary of War under section 13, prohibit- ing the keeping or setting up houses of ill fame, brothels, or bawdy- houses within prescribed distances of military camps do apply to Regular Army posts. Ops. J. A. G. 220.46, Nov. 7, 9, 1917. LINE OF DUTY II A, 1 b. The presumption is that injuries received while a soldier is in ihe military service of thp United States occur in the line of duty unless they were received while he was absent on furlough or was in a con- dition inconsistent with the performance of ordinary military duty ; or unless they were received in consequence of willful neglect or immoral conduct of the injured. Therefore, where the evidence showed only that a soldier of good habits, on post guarding a rail- way bridge, was found about midnight lying unconscious about 30 feet out on the bridge, severely injured, and that he died therefrom, a finding that he met his death as the result of his own misconduct can not be sustained. So, a man absent on a five-hour pass, who in returning attempted to cross the track of a railway company by climbing between two cars blocking the crossing, and who was in- jured by the sudden starting of the train, was properly found to have been injured in the line of duty. So, a man absent from post on a 10-hour pass, who was run down by a railway train while walk- ing along a railway trestle where soldiers frequently walked, was injured in line of duty where the evidence showed he was sober and that no proper warning of the approach of the train was given by lights or by bell or whistle. Ops. J. A. G. 220.46, Nov. 7, 9, 1917. MARINE CORPS : Detailed in Signal Corps. A member of the Marine Corps detached for service with the Army is not, under the national defense act. eligible for detail in or attachment to the aviation section of the Signal Corps, and therefore can not receive the rating of junior military aviator. Ops. J. A. G. 045.3, Nov. 20, 1917. MILITARY INSTRUCTION II, B: Section 50, national-defense act. Sections 43 and 50 of the national-defense act contemplated stand- ard courses of theoretical and practical military training for units of the Reserve Officers' Training Corps at educational institutions of at least three hours per week per academic year, section 50 fixing the completion of two years' academic service by a member of the senior division of the Reserve Officers' Training Corps as a condi- tion precedent to the right to be furnished commutation of subsistence during further instruction. Senate joint resolution 169, public 35, Sixty-fourth Congress, first session, required that in the interpreta- tion of said section 50, men who had received a course of military training substantially equivalent to that prescribed by the regulations be given credit therefor. The proper interpretation of said section 50 as affected by said public 35 is that the requirement of two years' academic service can not be satisfied by double work for one academic year. (Ops. J. A. G. 350.3, Nov. 13, 1917.) But it is not required that the military training should all be acquired at the same institu- 84 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL, OF ARMY. tion. Consequently, a student may be entitled to advanced standing in military science where lie has received military instruction sub- stantially equivalent to that prescribed by the above-mentioned sec- tions of the national defense act. Ops. J. A. G. 354.17, Nov. 24, 1917. MILITIA: Draft of National Guard officers. An officer in the National Guard of Wisconsin called into the Fed- eral service July 15, 1917, was ordered to report for duty and await orders, and did report for duty on July 21, 1917. By error of the military authorities he was not mustered into the service or assigned to the performance of any duties. Held, that he should be considered to have been accepted into the service of the United States as a mem- ber of the Organized Militia on July 21, 1917, and to have been drafted into the service of the United States on August 5. 1917. Ops. J. A. G. 241.1, Nov. 24, 1917. NATIONAL ANTHEM : Misuse of. There is no Federal legislation regulating the playing of the na- tional anthem, but some States have statutes forbidding playing it as part of a medlev. Ops. J. A. G. 007.11, Nov. 12, 1917. OFFICE IV, A 2 : Acceptance of other office. There is no Federal statute forbidding an officer in the National Army from holding civil office. The prohibition of section 1222, Re- vised Statutes, applies only to officers of the Regular Army on the active list. As to others than officers of the Regular Army, the mat- ter is one for State regulation. Ops. J. A. G. 324.24, Nov. 21, 1917. OFFICE III, A: De facto officer — Rights of. The commission of a first lieutenant, Medical Reserve Corps, ex- pired June 3, 1917, but the officer continued in service without a new commission and received pay and mileage as an officer until August 31, 1917. On September 9 he accepted a commission as captain, Medical Officers' Reserve Corps. Held, that from June 3 to Sep- tember 9 he was a de facto officer and was entitled to keep the pay already received, but was entitled to receive no more pay except for the period beginning September 9, when he became a de jure officer. Ops. J. A. G. 324.23, Nov. 14, 1917. OFFICE IV, E 2 : Dismissal of temporary and provisional officers. The President has complete power to discharge any temporary officer of the Regular Army holding appointment under section 1 of the act of May 18, 1917. Commanding generals may appoint military boards to pass upon the capacity and fitness of such officer, whose findings may be laid before the President for such action as he sees fit. (Sees. 1 and 9 of act of May 18, 1917; subpar. 2 of par. 7, G. O. 76, C. S.) But the President may discharge provisional officers appointed under section 23 of the national defense act of June 3, 1916, only after due investigation, such as is provided for in paragraph 7, G. O. 76, C. S. Ops. J. A. G. 324.4, Nov. 17, 1917. DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 85 OFFICE I, III A, 8a (4) : Persons required to take oath of office. Where positions are specifically provided for and specifically ap- propriated for by act of Congress, the holders of such position'must take the oath of office prescribed by section 1757, Revised Statutes. No modified oath can be substituted therefor. But where positions are not so provided for, and the holders thereof are merely desig- nated or appointed by the head of a department to perform the services and are paid out of a general appropriation for the expenses of such department, the taking of such oath can not be required. Ops. J. A. G. 230.211, Nov. 19, 1917. OFFICE III, B: Promotions in Medical Corps. Section 10 of the national-defense act provides that persons here- after commissioned in the Medical Corps shall be promoted to the grade of captain after five years' service in the Medical Corps and upon passing the examinations prescribed by the President for pro- motion. Public 86, Sixty-fifth Congress, provides that during the present emergency first lieutenants in the Medical Corps of the Regular Army and of the National Guard shall be eligible to pro- motion as captain upon such examination as may be prescribed by the Secretary of War. Construing these provisions together with section 111 of national defense act, it is held that all vacancies in the Medical Corps must be filled by permanent or temporary promotions, according to the character of the vacancy, of officers in the Medical Corps below the grade in which the vacancy exists, in order of senior- ity, subject to the required examinations. Temporary appointments can be resorted to only when possibilities of promotions by seniority have been exhausted. Ops. J. A. G. 210.2, Nov. 16, 1917. OFFICE III : Right of commanding officer — Effect of detail. Assignments to commands and to statutory offices are governed strictly by law and regulations, but officers assigned to a command are subject to the will of the commanding officer and may properly be required to perform any duties he may direct them to perform (A. R. 746). And a division commander may detail one staff officer to perform the duties of another. Accordingly he may detail the inspector general of the division to duty as Acting Chief of Staff and detail a field officer, on duty with a regiment of the division, as acting inspector of the division. Such field officer is not thereby made an officer of the Inspector General's Department and can not perforin any duties which are specifically required by statute to be performed* by an officer of the Inspector General's Department. Ops. J. A. G. 322.081, Nov. 8, 1917. OFFICERS' RESERVE CORPS: Eligibility of members for boards of ex- amination for rating of aviator. Members of the Signal Officers' Reserve Corps promoted, ap- pointed, detailed, or attached to the Aviation Section of the Signal Corps are, if they have the required experience, " officers of expe- rience of the Aviation Section of the Signal Corps " qualified to be members of boards authorized to examine and certify to the qualifi- cations of persons seeking the rating of aviators under section 6 of the act of June 24, 1917. Ops. J. A. G. 334.1, Nov. 21, 1917. 86 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. PAY AND ALLOWANCES I, C 8; III, B 4: Allotments and satisfaction of private claims against enlisted men. A soldier can not legally be deprived of any part of his pay for the satisfaction of a private claim, even for the support of his de- pendent parents. But he can make a voluntary allotment for such purpose. If he allots a portion of his pay for the support of his dependent parents, the Government will, under certain circumstances, make an additional allowance to the parents pursuant to the war risk insurance act of October 6, 1917. Ops. J. A. G. 243, Nov. 3, 1917. PAY AND ALLOWANCES II, A la: Commutation for heat and light. An officer on duty in the field with his regiment is not entitled to have heat and light furnished for public quarters occupied elsewhere by his family. " Ops. J. A. G. 215.2, Nov. 8, 1917. PAY AND ALLOWANCES I, A: De facto officers. An officer of the Medical Reserve Corps who refused to accept a commission in the Medical Officers' Reserve Corps is not entitled to receive any pay for services as an officer after June 3, 1917, for since that date such officer has been at best but a de facto officer. Pay which a de facto officer has received he may keep, but he has no legal claim for any pay not yet received. Ops. J. A. G. 324.23, Nov. 15, 1917. PAY AND ALLOWANCES I, C : Gunner's pay. Under section 1343, Army Regulations, 1917, a Coast Artillery man rated as a gunner and entitled to pay as such loses such rating and right to such pav on being transferred to the Field Artillery. Ops. J. A. G. 242.142, Nov. 21, 1917. PAY AND ALLOWANCES I, B 6 : Longevity pay. The act of June 18, 1878 (20 Stat. 150), providing for credit of full time of service for longevity pay has reference to service as tin officer or enlisted man in the full military sense. Service in a training camp under an enlistment having for its sole purpose training for entrance into the Army of the United States as an officer and not binding the enlisted man to any service unless accepted as an officer can not be counted thereunder. Ops. J. A. G. 241.12, Nov. 12, 1917. PAY AND ALLOWANCES I, C : Marksman's pay, machine-gun battalion. Under Army Regulation 1345 and paragraph 89, Small Arms Fir- ing Manual as amended, an enlisted man, qualified as a marksman in the machine-gun company of an Infantry regiment, who has been transferred to a company in a machine-gun battalion, is entitled to the pay of a marksman, for he is still a member of an organization armed with the rifle. Ops. J. A. G. 242.142, Nov. 2, 1917. PAY AND ALLOWANCES I, C 5 : Retirement II, A — Enlistment I, D. The Army appropriation act of May 12, 1917 (Bulletin 30, p. 45, Pub- No. 11. 65th Cong, p. 39), provides for the restoration of status DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 87 in the Regular Army of an enlisted man who shall be discharged to accept a commission in the Officers' Reserve Corps, in the National Guard, or militia organization, or in any volunteer force, and who shall enlist within three months after the termination of his connec- tion as an officer with that corps, etc. Held, that an enlisted man who is discharged from the Regular Army to accept a temporary com- mission in the Regular Army would not be entitled upon reenlistment to occupy his previous status in the Regular Army. Ops. J. A. G. 342.06, Nov. 17, 1917. PAY AND ALLOWANCES I, C: Sharpshooter's pay— Aero squadron. The Tables of Organization for 1917 show an aero squadron to be an organization armed with a rifle, but these tables have no retro- active effect. A qualification as a sharpshooter continues for one year if no opportunity for requalification is presented within that year (A. R. 1345). Therefore an infantryman who qualified as a sharp- shooter on July 13, 1915, and was on March 1, 1916, transferred to an aerial squadron, was not after March 1, 1916, entitled to pay as a sharpshooter, for from March 1, 1916, to July 13, 1916, an aero squad- ron was not an organization armed with a rifle. Ops. J. A. G. 242.142, Nov. 15, 1917. PAY AND ALLOWANCES II, A 2a : Transportation of officer's horse. Private mounts of an officer may, upon change of station, be trans- ported at public expense only when they are to be used by him at his new station in the public service. Ops. J. A. G. 94-011, Oct. 31, 1917. PAY AND ALLOWANCES II, A 3 : Travel allowance to drafted men. A drafted man discharged by competent authority is entitled to travel allowance to the place of acceptance for service. But men sent to camps under the draft act are not entitled to travel allow- ance to the place of reporting to the local board for military service. Ops. J. A. G. 513.3, Nov. 22, 1917. PAY AND ALLOWANCES II, A 2 : Travel pay of reserve officers. A reserve officer making an inspection of the records and accounts of the National Guard is entitled to mileage, but is not entitled to be reimbursed for actual expenses. Section 67 of the national defense act appropriates funds for the actual and necessary expenses incurred by officers and enlisted men of the Regular Army when traveling on duty in connection with the National Guard, but such funds are not available to pay expenses of reserve officers. Ops. J. A. G. 245.6, Nov. 10, 1917. BANK II, III : Lineal rank, how determined. On May 15, 1917, several majors in different departments in the Quartermaster's Corps were promoted to be lieutenant colonels. The promotions were made according to seniority in the several depart- ments to which the officers, respectively, belonged before the con- solidation under the act of August 24, 1912 (37 Stat. 591), as re- quired by section 3 of said act. The vacancies to which they were promoted were original vacancies. Held, that their lineal rank is not determined by section 1219, Revised Statutes, for the reason 88 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. that their advancement was by promotion and not by appointment, and that section applies to appointments and not to promotions. Ops. J. A. G. 210.725-15, Nov. 19, 1917. RANK D: Bank of noncommissioned officers. A noncommissioned officer of the Regular Army is senior to a noncommissioned officer of the same grade in other forces irrespective of date of warrant The reason is that members of the permanent Military Establishment are assumed to be more experienced than those in the other forces which are more or less temporary. Ops. J. A. G. 220.721, Nov. 20, 1917. RETIREMENT II, A 4 : Computing war service for. The act of March 2, 1907, provides that in computing the 30 years' service for retirement of enlisted men, all service in the Army, Navy, and Marine Corps shall be credited. The act of March 3, 1899, gov- erning service for retirement in the Navy, provides that active war service during the Civil or Spanish-American War shall be counted as double time. Held, that in computing the 30 years' service for retirement of an enlisted man in the Army, time actually served by him in the Navy should be computed by Navy standards and war service therein should be counted as double time. Ops. J. A. G. 220.85, Nov. 5, 1917. SELECTIVE-DRAFT ACT : Organization of regiments. Under the third paragraph of section 1 of the selective-draft act, the President has authority to provide that Cavalry regiments or- ganized provisionally as Field Artillery may retain their existing noncommissioned personnel until absorbed, but no special authority can be given to a single organization to do so. Ops. J. A. G. 322.05, Nov. 17, 1917. WAR: Censorship of mail in Canal Zone. Under section 13 of the act of August 24, 1912, to provide for the government of the Canal Zone (37 Stat. 560, 569) the Governor of the Panama Canal in time of war has power, under authority given by the President, to censor all mail. The espionage act of June 15, 1917, did not repeal said section 13 of said chapter 390. Ops. J. A. G. 000.73, Nov. 5, 1917. OFFICERS: Promotions to fill temporary vacancies in the Regular Army. [First indorsement.] 82-121. War Department, J. A. G. O., September 4, 1917.— To The Ad- jutant General. 1. By informal indorsement you have referred to this office a request for an opinion as to the proper construction to be given that part of section 8 of the act of May 18, 1917, considered in connection with section 114 of the national defense act, governing the subject of promotions to fill temporary vacancies in the Regular Army which occur by reason of the appointment of regular officers to higher grades in the National Army. Section 8 of the act of May 18, 1917, reads in part as follows: DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 89 " Vacancies in all grades in the Regular Army resulting from the appointment of officers thereof to higher grades in the forces other than the Regular Army herein provided for shall be filled by tem- porary promotions and appointments in the manner prescribed for filling temporary vacancies by section one hundred and fourteen of the national defense act approved June third, nineteen hundred and sixteen; and officers appointed under the provisions of this act to higher grades in the forces other than the Regular Army herein provided for shall not vacate their permanent commission nor be prejudiced in their relative or lineal standing in the Regular Army.'" Section 114 of the national defense act provides as follows : " In time of war the temporary vacancies created in any grade not above that of colonel among the commissioned personnel of any arm, staff corps, or department of the Regular Army, through appoint- ments of officers thereof to higher rank in organizations composed of members taken from the National Guard, shall be filled by tem- porary promotions according to seniority in rank from officers hold- ing commissions in the next lower grade in said arm, staff corps, or department, and all vacancies created in any grade by such tem- porary promotions shall be in like manner filled from, and thus create temporary vacancies in, the next lower grade, and the vacan- cies that shall remain thereafter in said arm, staff corps, or depart- ment and that can not be filled by temporary promotions, as pre- scribed in this section, may be filled by the temporary appointment of officers of such number and grade or grades as shall maintain said arm, corps, or department at the full commissioned strength author- ized bv law." 2. In construing the foregoing provisions of the statute it is necessary to determine the force and effect to be given to that clause wherein it is stated that officers of the Regular Army, appointed to higher grades in forces other than the Regular Army, " shall not vacate their permanent commissions or be prejudiced in their rela- tive or lineal standing in the Regular Army"; and also to that clause wherein it is stated that temporary vacancies created in any grade not above that of colonel among the commissioned personnel of any arm, staff corps, or department of the Regular Army through appointment of officers thereof to higher rank in forces other than the Regular Army — " shall be filled by temporary promotions ac- cording to seniority in rank from officers holding commissions in the next lower grade in said arm, staff corps, or department." 3. It is impossible to read this statute without grasping as its true significance the fact that it was intended to enable the War Depart- ment to raise and properly officer large armies such as those in process of formation at the present time. To accomplish this purpose au- thority is extended to commission officers of the Regular Army tem- porarily in such other forces as may be raised, and its purpose to protect officers so commissioned in their permanent commissions and to prevent them from being prejudiced in their relative or lineal standing in the Regular Army is unmistakable. Beyond this it was not required, however, that the department waste its time and effort in dealing with questions of rank and precedence such as would be involved if an effort were made to prevent minor variations in rela- tive or lineal standing as between officers who choose to remain in the 90 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL, OF ARMY. Regular Army and to serve under their commissions therein, and those who choose to accept higher commissions in forces other than the Regular Army. If such a course of procedure were to be adopted by the War Department, it is perfectly evident that so many changes and disturbances among the commissioned personnel of the several forces would be required to preserve the relative and lineal standing of officers of the Regular Army that confusion would inevitably fol- low, efficiency would be impaired, and the usefulness of armies subor- dinated to the adjustment of rank and precedence. 4. From what has just been stated it appears to be desirable to adopt a construction, if such can be consistently done within the fair meaning and intendment of the statute, which will promote the high- est efficiency of the service. Assuming, as we must, that this was the purpose of the act, it is difficult to believe that Congress could have intended, by the language used, not only to protect regular officers in their permanent commissions but to protect them as well from being prejudiced, even temporarily, in their relative or lineal standing by preventing such of them as accept commissions in forces other than the Regular Army from being temporarily ranked by officers of lower permanent rank in the Regular Army, but who are advanced therein by temporary promotions. On the other hand, it accords with this assumed purpose of the law to hold that Congress intended merely to protect officers of the Regular Army in their permanent commis- sions therein and, as an incident of such protection, to prevent them from being prejudiced in their relative or lineal standing as mem- bers of the permanent establishment onty. If it be contended that this view might result in temporarily giving a junior who had been advanced by temporary promotion in the Regular Army higher rank than his senior who has accepted a commission in forces other than the Regular Army, the answer is that this is a risk the senior assumed when he accepted a higher commission in such other forces, a risk which the statute did not protect against and which the War Depart- ment, as pointed out above, could not well assume to avoid without endangering the ultimate success of the great effort upon which it is now embarked. 5. Wnen an officer of the Regular Army leaves his place in the permanent establishment to accept temporarily a higher rank in another army, it must, I think, be assumed that his commission in the Regular Army is temporarily in abeyance. While serving under a different commission in some other army, he does not and can not function under his commission in the Regular Army. He is not, therefore, within the meaning of the statute, an officer' " holding a commission in the next lower grade " of his arm, staff corps, or de- partment, for, as just shown, he has ceased to function therein and is temporarily as much absent therefrom as though he really formed no part of such arm, staff corps, or department. The statute can properly be given full force and effect by construing the language just quoted to mean that promotions to temporary vacancies caused through the appointment of officers of the Regular Army to higher rank in forces other than the Regular Army shall be filled by tempo- rary promotions according to seniority of the officers who remain in the Regular Army and are, at the time of such vacancies, serving under their commission therein. Officers not serving under their commissions in the Regular Army would thus be temporarily passed DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 91 over and, instead of being promoted temporarily to higher vacancies in their own arm, staff corps, or department, they would be left to serve under the higher commissions which they are temporarily hold- ing in some other army. Such is the clear intendment of the statute and such, I think, must have been the purpose of Congress in enact- ing it. 6. It is impossible to foresee and discuss every contingency that ma} 7 arise in the administration of this law under the construction which I have just indicated will be the proper one to adopt; but it is believed that the difficulties under this plan will be few in com- parison with those that would inevitably arise under the alternative construction suggested and that none of those that do arise will prove to be insuperable. It may be proper, however, in addition to what has been stated, to refer to the matter of permanent promotions in the Regular Army. When an officer becomes entitled to a perma- nent promotion in the Regular Army he must, of course, accept the same. If he is serving as a colonel, let us say, in the National Army and becomes a permanent colonel in the Regular Army, he should ordinarily be continued in service in the National Army. This could involve no impairment of his rank, since his commission as a colonel in the National Army would antedate his commission as a permanent colonel in the Regular Army. If, however, an officer is serving as a temporary colonel in the Regular Army and is promoted to be a permanent colonel therein, it may well be that his commission as a permanent colonel will be subsequent to that held by other tempo- rary colonels who are his juniors in his arm, staff corps, or depart- ment. It is my view that the statute intended to protect officers of the Regular Army against a contingency of this kind when it pro- vided that they should not be " prejudiced in their relative or lineal standing in the Regular Army." I think it would be a fair construc- tion of this language to hold that Congress intended that no officer of the Regular Army, serving under a commission therein, shall be required to serve with lower rank than that held by a junior in his arm. staff corps, or department and who is also serving under a com- mission therein. This situation can be obviated by giving the officer who receives the permanent promotion a constructive date of rank as of the date of the temporary commission which he vacates to accept his permanent commission. This may be found necessary to maintain him in his proper relative or lineal standing in the Regular Army. Cases of this kind will, it is believed, be few in number and can be taken care of by administrative action without difficulty. This construction of the statute and the suggested administrative action thereunder would amply protect officers of the Regular Army in so far as Congress intended to extend protection, and would leave the question of relative rank as between officers serving under com- missions in some other army, where Congress. I think, intended to leave it to the fortunes of war and the incidents of service. 7. It is. therefore, the opinion of this office that promotions to vacancies in the Regular Army caused by the appointment of officers thereof to higher grades in forces other than the Regular Army should be filled by promotion, according to seniority, of officers who, at the date of such vacancies are serving under commissions in the next lower grade of the arm, staff corps, or department in which the vacancies occur. 92 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. OFFICERS: Effect of acceptance of commissions in one of the component forces of the Army of the United States upon a commission held in an- other force of said Army. [Memorandum for The Adjutant General.] August 30, 1917. 64-311. Subject: Effect of acceptance of commissions in one of the component forces of the Army of the United States upon a commission held in another force of said Army. 1. In your letter of August 22, 1917, you ask my opinion — " as to whether or not the acceptance of a commission in one of the armies of the United States operates to vacate a commission held in one of the other armies where such commission is not protected by statute, such as one held in the Regular Army." In the first place, it is pertinent to invite your attention to the fact that there is but one Army of the United States in the general sense — " the Army of the United States," which consists of the Regular Army, the Volunteer Army, the Officers' Reserve Corps, the Enlisted Reserve Corps, the National Guard drafted into the service of the United States, and the additional forces provided for in the National Army act (the National Army act of May 18, 1917, and sec. 1. national defense act). Whoever holds a commission in any of these component forces is an officer in the Army of the United States. 2. The statutes expressly provide that officers of the Regular Army (which includes both active and retired officers) may accept commis- sions in the National Guard without vacating their commissions in the Regular Army (sec. 100, national defense act) , and all the volun- teer acts have carried, and do still carry, the same provision. See the volunteer act of 1898 (30 Stat. 360, 363) ; the volunteer act of March 2, 1899 (30 Stat. 977, 980) ; section 1, act of May 28, 1898 (30 Stat. 421) ; and the existing volunteer act of April 25, 1914 (38 Stat. 346, 350). The present National Army act, which provides an additional force — the so-called National Army — supplanting the time-honored Volunteer Army, also provides that — " Officers appointed under the provisions of this act to higher grades in the forces, other than the Regular Army, herein provided for shall not vacate their permanent commission nor be prejudiced in their rela- tive or lineal standing in the Regular Army." Thus it is that Congress has gone to great pains to authorize the ap- pointment of Regular officers to the National Guard drafted into the Army of the United States, to the National Army, and to the Volun- teer Army whenever such there shall be, and to protect under such circumstances their Regular commissions. In my opinion, the protec- tion furnished ends with the statute ; and if an officer of the National Guard component, or the National Army, or of the Reserve Corps, ac- cepts a commission in any other component force, he thereby' vacates his former commission. 3. In my judgment, one may not hold two offices in the same military establishment without specific legislative authority there- for. This may be regarded as inferentially established by the fact that Congress has deemed it necessary to protect the commission of an officer in the regular service when appointed to any other force DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 93 in the Army of the United States. The incompatibility existing be- tween two offices in the same military establishment is obvious. It is settled that two offices are incompatible when a performance of the duties of the other or when the holding of two is contrary to the policy of the law. Crosthwaite v. U. S. (30 Ct. Cls. 300 f 22- Ops. Atty.. Gen. 237: 20 Ops. Atty. Gen. 427) ; Webster v. U. 1 125 Rental oi building in Manila for soldiers on leave 121 Contingencies of the Army — Expense of returning soldier absent without leave 98 Not available for suppression of vice 77 Contingencies, headquarters of military dept. — Purchase of envelopes for headquarters of military departments 12 Damages and loss of private property — Claims for damages due to training cam]) work 40 Damages caused by motor truck not used in movement of troops 79 Medical and hospital department — < "ivilian labor for police duty at hospital 77 Treatment of contractor's employees 48 Treatment of insane soldiers in private instil utionp 32 Printing and binding — Work done by commercial concerns in time of war 20. 1 :ll Quartermaster Corps — Civilian labor for police duty at hospitals 77 Heating and lighting fixtures in Y. M. C. A. buildings 77 Quartermaster Corps: Incidental expenses- Expenses < i reporters and witnesses 123 Telegrams sent by Civil Service Commission for Ordnance Dept 122 Transportation of the Army and its supplies — Repair ol railroad equipment damaged on Government tracks 120 Army: See also specific title. Composition and organization 53, 77 Drafted forces not part of Regular 121 Employment of, to aid civil authority 5 : Increase in enlisted personnel of Regular 110 Army Field Clerks. See Field clerks. Army Medical School: Rental of building for use of 120 Army Nurse Corps: Commutations of quarters and subsistence for 82, 128 Commutation of rations while on duty in France 118 Articles of War: Construction of Article of War 45 45 ( '(instruction of Article of War 48 54, 98 Offenses prior to March 1, 1917, tried under old 09 Assistants. See Names of offices concerned. Authorities. See Civil authorities: Courts-martial. Authority: Delegation of — Alaska Road Commission -. 127 Secretary of War to act on reports of surveys 15 To employ Army of United States to suppress violence 53 Automobiles. See Motor vehicles. Autopsy: Division surgeon has right to perform 129 Aviation Section. See Signal Corps: Signal Officers' Reserve Corps. INDEX. 135 Aviators: Junior military — rage. ( laptain assigned to active duty as 68 Rating of 130 Pay of flying cadets 103 Badges: See also Decorations of honor. Issue of campaign badges to members of training camps 37 Baggage: Transportation — Captain of Philippine Scouts retired as master signal electrician 36 Officer order to duty in held 103 Balloonists: Extra pay for aerial flights 5 Ham is: Competition with civilian musicians 53, L20 Detail of mess sergeants to < 'oast Artillery bands 11 Barracks. See Quarters. Hkverac.es. See Intoxicants. Bids. Set Contracts. Boards: Draft- Correction of rulings of, when men were erroneously certified 81 Finality of decisions of 71, 81 Not authorized to compel attendance of witnesses 81 Reopening of case after induction 81 Efficiency — Expenses of reporters and witnesses 123 Examining — Expenses of reporters and witnesses 123 Signal Corps Reserve Officers attached to Aviation Section 85 Bonds: Effect of failure of contractor to furnish 55 Reserve officers assigned as disbursing officers required to give 29 Bounties. See Pay and allowances — reenlistment. Buildings. See Leases; Public property. Cables: Censorship 117 Cadets. See Aviators; Coast Guard; United States Military Academy. Call into Federal Service. See National Guard. Campaign Badges. See Badges. Camps: Campaign badges for members of reserve officers' training 37 Civilian employee's pay while attending reserve officers' training 42 Claims for damages to private property due to work at training 46 Defined 58 Pay and allowances of men in 61 Regulations prohibiting intoxicants applicable to Porto Rico 57 Service can not be counted in computing longevity pay ' 86 War risk insurance for members of training 106 Canal Zone: Censorship of mail in 88 Transportation for troops on west side of 116 136 INDEX. Cantonments: Page. Options for renewal of leases from year to year 122 Captured Property: Supplies used for subsistence of prisoners of war 20 Cars. See Motor vehicles. Cavalry: Regiments organized provisionally as Field Artillery 88, 98 Censorship: Cable dispatches 117 Mail in Canal Zone 88 Chaplains: Eligibility of Christian Science readers 54 Qualifications for appointment as 114 Charges. See Claims; Contracts; specific names of crimes. China : Subjects may not enlist in Medical Enlisted Reserve Corps 82 Christian Science Church: Readers eligible to appointment as chaplains 54 Citizenship: Aliens lose American citizenship upon return to native country 115 Expatriation after enactment of draft act 115 Not necessary for enlistment in United States Army in time of war 57 Restoration to citizens enlisted in foreign armies 57 Civil Authorities: Application of State laws to Federal operations 68 Apprehension and delivery of deserters by 79 Delivery of soldier in time of war to 54 Employment of Army to aid 53 Expenses for returning soldier absent without leave 98 Jurisdiction over alien minor enlisted in National Guard 74 Jurisdiction over capital crimes in time of war 95 Procedure where soldier is necessary witness 99 Right to hold in arrest persons in military service 78 Civilian Employees: Medical and hospital treatment 42 Pay. See Pay. Resignation without due notice 78 Right to wear uniform 54 Civilians. See Aliens; Citizenship; Civil authorities; Civilian employees; Pay. Claims: Commutation of heat and light and quarters. See Quarters. Commutation of rations. See Rations. v Contracts. See Contracts. Damages caused by motor truck not used in movement of troops 79 Damages to private property due to training camp work 46 Losses — Household goods of officer destroyed by fire in shipment 51 Officers' mount while in military service 26, 127 Private property while in military service 21, 35 Stoppage of pay for damage to Government motor car 128 Subsistence. See Subsistence. Traveling expenses. See Mileage; Traveling expenses. Clergymen. See Chaplains. INDEX. 137 €lerks. See Civilian employees; Field clerks. Clothing: rape. Allowance for members of National Guard 18 Loss of civilian clothing of officer 21 Uniform. See Uniform. Coast Artillery Corps: Grade of mess sergeant in 11 Gunner loses rating when transferred to Field Artillery '. 86 Coast Guard: Cadets and cadet engineers not entitled to war-risk insurance 106 Colleges. See Educational institutions; Reserve Officers' Training Corps. Command: Commanding officer of base hospital may convene courts-martial 99 Jurisdiction of division commanders 55 Right of commanding officer 85 Commandeering. See Requisition. Commander in Chief of the Army. See President of the United States. Commissions. See Officers; Rank. Commutation of Heat and Light. See Quarters. Commutation of Quarters. See Quarters. Commutation of Rations. See Rations. Commutation of Subsistence. See Subsistence. Company Funds. .See Funds. Compensation. See Claims; Line of duty; Pay; Reward; Transportation; Traveling expenses. Compulsory Orders: For supplies 126 Condemnation. See Requisition. Conduct Unbecoming an Officer: Drunkenness at a military hop 107 Confinement: Crimes which justify sentence of 109 Sentence begins on date of order publishing case 118 Conscientious Objectors: Enlistment 56 Conscription. See Aliens; Draft. Contingent Funds. See Appropriations. Continuous Service Pay. See Pay and allowances. Contract Surgeons: Not entitled to war risk insurance 107 Contracts: Advance payment 121 Application of eight-hour law to contracts for supplies bought in open market 46, 56 Application of State laws to Federal operations 68 By officer or employee with Government 79 Cancellation — For relief of contractor not authorized 37, 119 Compulsory orders for supplies 126 Construction of, when containing provision for estimated quantities 25 Correction of error in bid 15 Cost plus — Percentage basis 15 Effect of failure of contractor to furnish bond 55 138 IXDEX. Contracts — Continued. rage. Eight-hour law not applicable to artillery equipment 124 Emergency purchases of military supplies 79 Labor. See Eight-hour law ; Pay. Leases. See Leases. Modification — For relief of contractor not authorized 37, 119 Settlement of claim for unliquidated damages 118 Unauthorized contracts by National Guard for horses and mules 117 Conviction. See Courts-martial; also specific name of offense. Corporals : Lance corporal is not a noncommissioned officer 53 Correspondence. See Censorship: Mail. Courts. See Civil authorities. Courts-martial: Convening authority when commanding officer is accuser 80 Confirming authority when officer is sentenced to dismissal 80 Effect of irregularities upon proceedings 80 Findings — Reviewing authority may disapprove 108 Jurisdiction — Auxiliary remount depots 1 "_'!» ( 'apital offenses in time of war 95 ( 'ivilians on Army transport 110 Offenses committed by National Guardsmen prior to draft 119 Offenses committed prior to enlistment 100 Prisoners of war 100 Members — Testimony of 95 Offenses prior to March 1, 1917, tried under old Articles of War 69 Place of trial determined by expense of securing witnesses 31 Records — Amendment of 94 Procedure where sentence is improper in form 109 Revision invalid when member of court not qualified 94 Revision invalidated by introduction of new evidence 108 Reviewing authority. See Reviewing authority. Sentences. See Sentences. Special — Power of commanding officer of base hospital to convene 99 Summary — Limitation of sentences by 78 Power of commanding officer of base hospital to convene 99 Reduction of noncommissioned officer by 46 Witnesses. See Witnesses. Cow: Expenditure of ration savings for feed for 40 Crimes. See Civil authorities; Confinement: Courts-martial; specific name of offense. Cross-Examination. See Accused. Custody. See Civil authorities; Confinement; Courts-martial. Damages. See Claims; Contracts. Death. See Deceased persons; Line of duty. INDEX. 131) Deceased Persons: Burial expenses — Page. Cadets of United States Military Academy 1 1 6 Decorations of Honor: See also Badges. President as commander in chief may authorize 57 De Facto Officers. See Pay and allowances. Defense. See Accused; Evidence; specific name of offense. Deferred Classification. See Draft. Demotion. See Rank. Dental Corps: Appointees from standard dental colleges 30 Basis of organization in Officers' Reserve Corps 77 Qualifications for appointment and promotion in 102 Dental Reserve Corps: Officers commissioned with grades and percentages of Medical Corps 77 Department Commanders. See Command; Courts-martial. Dependency: Aid to dependent families of enlisted men of National Guard and Regular Army H Depositions: Fees for taking 79 Use of. in desertion cases in time of war not authorized 52 Witnesses in military service 99 Desertion: Administrative determination that escaped garrison prisoner is deserter.. 129 Apprehension and delivery of deserters by civil authorities. 79 Arrest of deserters from National Guard in Federal service 5 Disposition of alleged deserter 132 Failure to respond to draft constitutes 56 Interpretation of Article of War 39 in trials for 22 Sentence for, when committed in time of peace 110 Statute of limitation affecting 22. 79 Trials held in place where least expensive for witnesses 31 Detail. See Duty; specific name of organization or duty. Disability: See also Discharge; Line of duty. Injuries not resulting from willful neglect or immoral conduct 83 Retirement of provisional second lieutenant 132 Disbursing Officers: Bonds may be required from reserve officers 29 Pay of de facto property and 38 Discharge: Dishonorable — When authorized 44, 69, 109 Dismissal of officers — Interpretation of Article of War 48 54, 98 President as confirming authority 80 Temporary and provisional 84, 101 Drafted alien not discharged to enlist in Army of own country 55 Drafted man upon certificate of exemption 81 Drafted minors 104 Effect of illegal discharge 127 Enlisted man of regular Army to accept temporary commission 87 140 INDEX. Discharge — Continued. Page. National Guard officers after draft 59, 99 National Guard Reserve — Enlistment in National Guard after 8 Pay affected. See Pay and allowances. Provisional second lieutenant prior to expiration of statutory period 9 Rank following discharge. See Rank. Rejection of drafted man as physically unfit subsequent to induction 81 Traveling expenses — Enlisted man discharged to accept commission 43 Regular Army reservist 94 Soldier convicted by civil court 43 Under proper name when service was under assumed name 16 Upon expiration of enlistment subsequent to May 18, 1917 38 Disciplinary Barracks: Vocational training at 117 Discipline. See Courts-martial; Prisoners; Rank; Sentences; name of specific offense . Disease. See Medical treatment. Disloyalty : Procedure for treatment of disloyal officers and enlisted men 132 Dismissal. See Discharge. Distinguished Service Medals: Authority of President to provide for *...". 57 Division Commanders: Jurisdiction of 55 Draft: See also Desertion: National Guard. Applicable to Porto Rico 115 Boards. See Boards. Claim for exemption by nondeclarant aliens 96 Declarant aliens subject to 97 Discharge of aliens subject to '. , 55 Discharge of drafted minors 104 Discharge of National Guard officers after 59 Drafted forces not part of Regular Army 121 Execution of affidavit to secure deferred classification for employee 104 Exemptions 73 Expatriation after enactment of draft act 115 Failure to respond to, constitutes desertion 56 Honorable discharge from Regular Army does not exempt from 73 Members of Home Guards 59 National Guard officers 84 Necessary expenses of National Guard after 58 Procedure for discharge upon certificate of exemption 81 Registration of slackers 81 Rejection as physically unfit subsequent to induction 81 State staff corps subject to 58 Voluntary enlistment in Regular Army and National Guard after 116 Drinking. See Intoxicants. Dry Zones. See Intoxicants. Duties. See Tariff. INDEX. 141 Duty: See also Service Active — Page. Longevity pay increases tor 43 Retired officers and enlisted men ordered to 24, 49, 122 Extra and special denned 47 Field— Allowances. See Quarters; Subsistence. Officer of Infantry as judge advocate with punitive expedition 6 Flying. See Aviators; Balloonists. Line of duty. Sec Line of duty. Police duty at base hospitals by enlisted men 77 Staff. See Staff duty. Educational Institutions: Reserve officers as instructors at 125 Eight-Hour Law: Application to contracts for supplies bought in open market 46, 50 Construction of Ohio River dam 124 Contracts for horse equipment and artillery supplies 124 Contracts for ordnance supplies 124 Extra pay for overtime work by mechanics employed by Government. ... 55 Suspension of in cases of emergency 80 Elevators: Installation in quartermaster depot 125 Employees: See also Civilian employees; Eight-hour law. Medical treatment for contractor's employees on cantonment construction. 48 ( 'i unpetition of enlisted men with civilians 53 Engineer Corps: Draftsmen not entitled to war-risk insurance 100 Field clerks not entitled to war-risk insurance 106 Grade of first-class privates for reservists called to active duty f) Enlisted Men: Absence. See Absence without leave. Aid to dependent families of men in National Guard and Regular Army. . 11 Competition with civilians in employment 53 Detail as mess sergeants 117 Discharge. See Discharge. Duty. See Duty. Heat and light allowance when assigned to public quarters 18 Insane. See Insane persons. Making good time lost by 16 Of all components interchangeable 77 Pay. See Pay and allowances. Rank. See Rank. Service which may be counted for retirement 104 Transfer from one force to another 126 Travel. See Traveling expenses. Enlisted Reserve Corps: Appointment of general officers for regiments of 113 Assigned to duty with Regular Army 113 Member called to active duty while fatally ill 100 Organization of railway engineer regiments 112, 113 Pay. See Pay and allowances. 142 INDEX. Enlistment: Aliens. See Aliens. Page. Conscientious objectors 50 Continuation during emergency not applicable to Marine Corps 131 Continuation of active service in National Guard after termination of 19 Continued in force during war 38 Discharge. See Discharge. Drafted men enlisted from date specified in notice 56 Drafted men not required to take oath of 129 Eligibility for Medical Enlisted Reserve Corps 82 Failure to respond to draft constitutes desertion 56 Field clerks in National Guard 10 Fraudulent — Date of final statements when sentenced for 39 E ff ect of 57 Jurisdiction of courts-martial over offenses committed prior to 100 Period — Effect of unauthorized furlough 73 Furlough to Reserve upon expiration of 73 Persons authorized to take enlistments 100 Qualification for enlistment in National Guard 113 Reenlistment — Continuous service pay upon application within three months for 30 Deserter not eligible for 57 During emergency 112 Enlisted man discharged to accept temporary commission 86 Repatriation of citizens enlisted in foreign armies 57 Rights of alien enemy enlisted in United States Army 57 Signal Corps, for musical purposes solely, unauthorized 57 Voluntary enlistment in Regular Army and National Guard after draft ... L16 Women may not enlist in Ordnance Department 82 Envelopes: Franking privilege for applications for family allowances and insurance. . . 99 Purchase of, for headquarters of military departments 12 Equipment: Contracts not governed by eight hour law 124 Issue. See names of organizations. Loss of officer's horse equipment 127 Errors. See Accused; Courts-martial. Evidence: Additional — Revision of record invalidated by introduction of 108 Comment upon, in open court by member 94 Improper questioning inadmissible 69 Use of depositions in desertion cases in time of war unauthorized 52 Witnesses. See Witnesses. Examinations. See Accused; Boards; Survey. Exchange. See Post exchange. Exemption From Military Service. See Draft. Feed: Rations savings may be expended for cow 40 Fees: For taking depositions , 79 Felonies. See Specific name of offense. INDEX. 143 Field Artillery: Page. Cavalry regiments may retain noncommissioned personnel 88 Cavalry regiments organized provisionally as 88, 98 Field Clerks: Army — Enlistment in National Guard 16 Entitled to war-risk insurance 106 Heat, light, and quarters for 103 Not civilian employees 42 Not entitled to increase in compensation of civilian employees 42 Right to draw pension while serving as 13 Service which may be counted for allowances 45, 78 Uniforms 127 Heat and light allowance for 17 Hunting privilege not a right 31 Purchase of subsistence supplies from Quartermaster's Department 31 Quartermaster Corps — Enlistment in National Guard 16 Entitled to war-risk insurance 106 Member of Officers' Reserve Corps ordered to active duty 113 Not civilian employees 42 Not entitled to increase in compensation of civilian employees 42 Uniforms 127 Vacancy in field clerkship fdled by temporary appointment 113 Final Statements: Date of, when sentenced for fraudulent enlistment 39 Flying. See. Aviators. Food. See Feed; Rations; Subsistence. Foreign Armies: Enlistments in United States for 126 Foreign Service. See Pay and allowances. Foreigners. See Aliens; Foreign armies. Forfeiture of Pay. See Pay and allowances. France: Examination and settlement of accounts in 126 Franking Privilege. See Envelopes. Fuel. See Heat and light; Quarters. Funds: See also Appropriations. Company — Distribution of, of disbanded organization 101 Distribution upon reorganization 101 Investment in liberty bonds 57 Furlough: Absence after notice of revocation of furlough is without leave 6 Effect of unauthorized 73 Garbage: Money received from sale of 104 German Red Cross. See Red Cross, German. Germany: War declared on April 6, 1917, by United States on 37 Gettysburg National Park: Regulations respecting vehicles suspected of carrying liquor 123 144 INDEX. Grade. Sec "Rank. Guards: Page. Civilian labor for police duty at base hospitals 77 Extra-duty pay for Philippine Scouts at Corregidor 123 Gunners: Additional pay for enlisted men of National Guard qualified as 23 Status after transfer from Coast Artillery to Field Artillery 86 Heat and Light: See also Quarters. Buildings of Knights of Columbus 132 Hostess houses of Young Women's Christian Association 77 Young Men 's Christian Association buildings 77 Home Guards: Members as individuals subject to draft 59 Not subject to draft as members of National Guard 59 Right to wear uniform 68 Status of 59 Horses: See also Mounts. Unauthorized contracts by National Guard officers for 117 Hospitals: See also Insane persons; Medical treatment. Commutation of rations for nurses on duty in France US Failure to join organization after discharge from 1 22 Pay of soldier while confined in 119 Police duty by enlisted men, not civilians 77 Power of commanding officer to convene courts-martial 99 Treatment of insane soldiers in private 32 Hostess Houses: Heat and light for 77 Houses. See Hostess houses; Knights of Columbus; Quarters; Young Men's Christian Association. Hunting Privilege: Field clerks not entitled to 31 Illness: See also Hospitals; Line of duty: Medical treatment. Enlisted reservist, fatally ill at time of call to service 100 Imprisonment. See Confinement. Income Tax. See Taxes. Induction. See Draft. Inoculation: Compulsory, legal in the Army 129 Insane Persons: Procedure for payment due insane soldiers 123 Treatment of insane soldiers in private institutions 32 Insignia of Merit: Distinguished service medals. See Distinguished service medals. Ribbons. See Ribbons. Insurance: War risk — Persons entitled to 106 Interpreters: Corps included in headquarters organization 115 Corps not organized as special and technical troops 115 INDEX. 145 Intoxicants: Page. Enforcement of regulations concerning - 58 Interpretation of President's regulations 58 Interpretation of the term "military camps" 47 Punishment for violation of liquor regulations 95 Regulations apply to camps in Porto Rico 57 Regulations not applicable to permanent Army posts 82 Revocation of licenses for violation of Federal regulations 58 Seizure within prohibited zones 57 Vehicles suspected of carrying liquor into Gettysburg National Park: .... 123 Zones of prohibition for sale of 130 Japan : Subjects may not enlist in Medical Enlisted Reserve Corps 82 Judge Advocates: Field officer with punitive expedition on duty with organization ..........