as well as the military viewpoint, of permitting change of status; and you urge that, because officers of the National Guard are needed for duty in staff corps or departments, such a change should be permitted. without compelling officers of the National Guard to return to a civilian status before they can be commissioned in the Reserve Corps. 2. It is provided in section 37 of the National Defense Act (Comp. St. 1916, § 1881a) that the Officers' Reserve Corps "shall be organized under such rules and regulations as the President may prescribe not inconsistent with the provisions of this act," and in the same section the purpose for which the Officers' Reserve Corps is to be organized is declared to be that of "securing a reserve of officers available for service as temporary officers in the Regular Army as provided for in this act and in section 8 of the Act, approved April 25, 1914, as officers of the Quartermaster Corps, and other staff corps and departments, as officers for recruit rendezvous and depots, and as officers of volunteers. * * * " In construing this section this office said under the date of August 30, 1916, to which reference has been made: "Since the purpose for which the Officers' Reserve Corps is organized is to provide a reserve of officers, it is a logical conclusion that such a reserve should not be composed of officers already available as such for the military service of the United States. Conformably to this view the President has, by regulation, eliminated from consideration for appointment in the Officers' Reserve Corps those officers of the National Guard and of the Regular Army already available for the military uses of the United States by providing in the first sentence of section III of regulations made pursuant to the authority contained in section 37 of the National Defense Act, quoted supra, that— "No applicant will be examined who is an officer of the Regular Army on the active list, or the National Guard, or who is not a citizen of the United States' (G. O. 32, W. D., July 28, 1916). * * * "This regulation, made under ample authority of statute, is in my opinion effective to exclude from appointment in the Officers' Reserve Corps officers either of the National Guard or of the Organized Militia not yet transformed into National Guard, the apparent intent being to exclude from the Officers' Reserve Corps those already bound to the service of the United States through commissions in one of its available forces." 3. However, since the date of the opinion just quoted, the members of the National Guard have been drafted into the Federal service, and the question is therefore clearly presented whether the President has authority to transfer members of the National Guard to the Officers' Reserve Corps, thus avoiding the indirect and circuitous method of requiring a member of the National Guard or the organized militia to resign his commission therein before he is eligible for appointment to the Ordnance Reserve Corps or any other department of the Army of the United States. 4. It is provided in section 2 of the Selective Draft Act, Bulletin No. 32, Act of May 18, 1917, that: "All persons drafted into the service of the United States and all officers accepting commissions in the forces herein provided for shall, from the date of said draft or acceptance, be subject to the laws and regulations governing the Regular Army, except as to promotions, so far as such laws and regulations are applicable to persons whose permanent retention in the military service on the active or retired list is not contemplated by existing law, and those drafted shall be required to serve for the period of the existing emergency, unless sooner discharged." 40 Stat. 77. And the Army, as at present authorized, consists of (1) the Regular Army, (2) the Volunteer Army, (3) the Officers Reserve Corps, (4) the Enlisted Reserve Corps, (5) the National Guard while in the service of the United States and (6) the National Army. This office in an opinion dated September 17, 1917 (J. A. G. O. 6-200), discussed the relation of the different elements or forces composing the Army of the United States, and said: "This Department must see the Army of the United States as a whole. By the declaration of war, the President is directed to employ the entire naval and military forces of the United States and all the resources of this government to carry on the war. There is, speaking in the fundaments of law and fact, but one army in this country-the Army of the United States. It consists, it is true, of a half-score of components. It consists of all those components specified and enumerated in Section 1 of the National Defense Act of June 3, 1916, and in addition, all those other components enumerated in the National Army Act of May 18, 1917-the Organic Acts providing the Army of the United States with which we are to fight this war. There is no one element of this Army that is more truly of the army, either in law or fact, than another. All elements are a necessary part of the Army and all are objects of highest concern. Staff administration is no less important than line training. The Army is a special empire in which the bureaus of this Department (see section 2, National Defense Act, June 3, 1916), the man on the fighting line, the line, the staff, tactical organizations and the agencies that supply them, are all essential constituents. All the components then enumerated in the two Acts above mentioned and all the various subdivisions of those components constitute the Army of the United States under the single command of the Constitutional commander-in-chief and all existing for a single purpose. "The fact that some of the forces constituting the Army are raised in one way and some in another concerns only the method of establishing the military relation without affecting the obligation of the individual as a soldier or the relation of the force to the Army itself or its subjection to the constitutional powers of the commander-in-chief. "Since the rights, duties and obligations of the men of all forces are substantially, if not absolutely, the same, it follows the men may be transferred from one force to another without the infringement of any legal right or principle, unless such transfer be inhibited by the statute, and I find no such inhibition. * * * "This is no time for small or timid things. Success in the realm of force is prejudiced by philosophic distinctions and legal niceties. As legal adviser to the Army and as an officer thereof, I discard, as the law permits me and military efficiency requires me to discard, the theory of separate and independent forces. Such a theory can be adhered to only with injury to fighting efficiency. Military elements besides the bravery and skill of officers and men are necessary to victory. Scientific organization and efficient administration of an army are indispensables. Battles can hardly be won with forces which are regarded as heterogeneous but only so because of customary conception or legal formulary. Administration should proceed boldly along broad lines to sustain our fighting forces with unity of organization and unity of administration as well as of purpose, if we are to succeed against an enemy who has demonstrated his thoroughness in that field." 5. However, in the opinion just quoted from this office distinguished, with respect to their eligibility for transfer, officers holding commissions with life tenure or tenure for fixed periods from those holding commissions for the period of the emergency, and stated in this connection: "I have discussed the enlisted personnel and have found nothing in their obligations and nothing in their status to militate against the view here adopted. Addressing myself to the official personnel I come to a similar conclusion except as to (1) the officer of the Regular Army and (2) the officer of the Officers' Reserve Corps. All other officers, whether they have been commissioned in the so-called National Guard component, or in the first additional force, which we call the National Army, or shall be commissioned in the second additional force of five hundred thousand men when drafted, or in any one of the other enumerated forces, have in all respects similar status and obligations. The officer of the Regular Army differs from the officers of the other forces in that his status is permanent and there are many distinguishing characteristics based upon that distinctive feature. Öfficers of the Regular Army constitute the only personnel in the Army of the United States that is permanent; all else is temporary. The statute clearly recognizes this distinction. Regular officers may not be transferred to the other forces, but they may be appointed thereto in the manner prescribed by statute and not otherwise. Officers of the other forces cannot become officers of the Regular Army, except by original appointment as the statute prescribes. There can be no such thing as transfers of regular officers to the other forces or of officers of the other forces to the Regular Army. So, too, the officer of the Reserve Corps is to be distinguished from officers of the other forces in that he has a fixed, limited tenure of office and a specified use. These incidents preclude homogeneity with the other forces. But the great majority of officers will, of course, belong to the forces other than the Regular Army and the Officers' Reserve Corps and these officers are in all respects on the same plane and their homology should be recognized. "There are in the eyes of the law but three kinds of commissioned officers; those of (1) Regular Army; (2) all forces, other than the Regular Army, enumerated in the Selective Service Law; (3) Officers' Reserve Corps. I see no reason why administration should not conform." 6. What was said by this office in the opinion quoted from is applicable to the question now before me; and, since a transfer of a National Guard officer to the Officers' Reserve Corps would change the tenure of his office without authority of law and without his consent, such transfers would not be legal. 7. In the opinion of this office there is no need for such transfers as proposed, since officers in the Ordinance Department may be created in the National Army and in the force composed of National Guard drafted into the service of the United States and officers of those forces transferred thereto, thus accomplishing in effect the result desired. [Signed] E. H. Crowder, Judge Advocate General. 10. DISCHARGE OF DRAFTED MINOR December 27, 1917. From: The Office of the Judge Advocate General. Subject: Status of conscripted men who registered when under age. 1. This office is in receipt of your letter of the 7th in which you state applications are being received from the parents of soldiers over eighteen and under twenty-one who registered and were subsequently drafted. You say it has been generally held that men so circumstanced should be discharged. You specifically state: "It would seem that a man, who, knowing his true age, and being of sufficient age to enlist in the military service, voluntarily registers and is subsequently drafted should be obliged to serve. A different case would be presented if it appeared that the man registered under mistaken belief that he was of the age which would require his registration and subsequently discovered that he was over or under such age." The question as I view it is whether men who are now claimed by their parents or by themselves to be under twenty-one years of age, but who, in fact, registered and gave their ages as twenty-one years, and thus brought themselves within the draft act, may now be discharged from the military status imposed upon them by the draft, upon application by the parent by way of a writ of habeas corpus or otherwise. 2. The law involved is not the law of voluntary enlistment or muster as contained in the Revised Statutes and the National Defense Act, but the law to be applied is that found in section 2 of the Selective Service Act of May 18, 1917 (40 Stat. 77). It is there provided in effect that all male citizens between twenty-one and thirty years of age are liable to registration and draft; and it is further provided in section 4 of said act that any and all questions of exemption and eligibility shall be determined by boards provided for in said act and appointed by the President under such regulations as he shall prescribe. 3. Clearly, in any view of the law the decision of such boards upon questions of eligibility, including age, is final and beyond judicial inquiry, except in the well known cases of fraud, etc., which operate to the disadvantage of the soldier himself. The decision of such boards is final and unimpeachable in collateral attack. In this connection your attention is invited to the recently decided case of United States ex rel. Koopowitz v. Finley, 245 Fed. 871 (decided in the U. S. District Court for the Southern District of New York, Nov. 3, 1917). There the relator, a citizen of Russia, had never declared his intention to become a citizen of the United States. He was drafted for military service and ordered to report and for failure to report was arrested by the military authorities and charged with desertion. He never made any claim for exemption on the ground of alienage in the manner prescribed by the Presidential regulations. He did, however, state that he had made certain informal claims of exemption and that he failed to make them more formal because of assurances given him by members of the local board that because of his alienage he need not trouble himself further. These claims were denied by members of the local board. It is to the clear statement of the law relating to the decision of such boards that your attention is specifically invited. I quote you the following from the opinion of Mayer, Judge: "Is a person who failed to claim exemption on the ground that he was a nondeclarant alien, and who now asserts (without contradiction) that he is such an alien, properly in the custody of the military authorities? "The remaining question is whether the local board wholly lacked jurisdiction. It is contended because nondeclarant aliens are exempted from the draft that no obligation was placed upon relator affirmatively to present his claim for exemption, and this is but another way of stating that by virtue of the act itself relator was automatically exempted. "It must be conceded at the outset that Congress had the power to subject all persons to the draft whether citizens or aliens. "The question, then, is whether, from the structure of the act, it was the intention of Congress that only those who claimed exemption should in proper cases be exempted or whether those entitled to exemption could disregard the procedure provided for by the act and the regulations and show aliunde, as here, that they fell within one of the statutory exempt classes. * * * "The whole plan of the act is undoubtedly to require that those who claim exemption shall affirmatively present their claim to the appropriate body so that that body can determine as a fact whether the person falls within the exempted classes. When, therefore, no such claim is presented and the proceedings of the local and the district boards are regular in every respect, the court can not go outside of the proceedings of the boards to determine independently something which the act required should be determined by these boards." 4. In the case to which you refer there is no opportunity for fraud except when committed by the man himself and, of course, he could there take no advantage. Even if it were otherwise and the decisions of such boards were not final, judicial inquiry would of necessity reach the same conclusion; for the reason that questions of age gave no privilege to an alleged minor whose contract of enlistment is good as far as he is concerned. This is true because age is not of |