can properly be construed to include officers temporarily promoted and it follows that the President can discharge such officers under the provisions of that section.

7. This conclusion is strengthened by the fact that as an incident to his power to appoint, the President has power to discharge military officers (4 Op. Atty. Gen. 1-603; 6 Op. Atty. Gen. 4; 8 Op. Atty. Gen. 233-288; 15 Op. Atty. Gen. 421; Blake v. United States, 103 U. S. 236, 26 L. Ed. 462), and "In the absence of constitutional or statutory provisions the President can, by virtue of his general power of appointment, remove an officer even though he was appointed by and with the consent of the Senate" (Shurtleff v. United States, 189 U. S. 311, 23 Sup. Ct. 535, 47 L. Ed. 828). This office in considering this power held:

"The power to dismiss, which, as being an incident to the power to appoint public officers, had been regarded since 1789 as vested in the President by the Constitution, was, for the first time in 1866 (by the act of July 13 of that year, reenacted in the second clause of the present ninety-ninth (118) Article of War [Comp. St. 1916, § 2308a] and in section 1229, R. S. [Comp. St. 1916, § 2001]) expressly divested by Congress in so far as respects its exercise in time of peace. By the statute law it is now authorized only in time of war. C. 13323, Sept. 18, 1902; 13654, Nov. 13, 1902; Dig. Op. J. A. G. 1912, p. 819.

8. There being no limitation upon the inherent power of the President to dismiss or discharge an officer in time of war, has an officer of the Regular Army who has been temporarily promoted and is discharged from his temporary commission a right to a court-martial under section 1230, R. S. (Comp. St. 1916, § 2003)?

9. If the word "dismiss" used in section 1230, R. S., is given its usual definition, any officer discharged from the National Army, the National Guard, or temporary appointments or promotions, could demand a court-martial unless this section has been repealed by implication or is applicable only to the Regular Army. It is manifest that Congress did not intend that the President's power under section 9 of the Selective Service Act to remove the numerous officers provided for therein should be hampered by such officers demanding a court-martial under section 1230, R. S. It is impossible to reconcile the powers of the President under section 9, Selective Service Act, supra, and section 1230, R. S. It must therefore follow that section 1230, R. S., is repealed by implication. Repeals by implication are not favored, and having regard to the policy of the law as it relates to the commissions of the officers in the Regular Army, it can, and should properly, be held that section 1230, R. S., is applicable only when an officer of the Regular Army is dismissed from his Regular Army commission. An officer of the Regular Army holding a temporary promotion or appointment and discharged therefrom reverts to his status as an officer in the Regular Army and he is not in any sense dismissed therefrom.

10. I am of the opinion that an officer of the Regular Army who has been given a temporary promotion in the Regular Army under section 8 of the Selective Draft Act of May 18, 1917 (40 Stat. 76.

can be discharged from this office by the President under section 9 of the same Act and that when so discharged he is not entitled to a court-martial under section 1230, R. S.

[Signed] S. T. Ansell, Acting Judge Advocate General.

30. TRANSFER FROM NATIONAL ARMY TO ENLISTED RESERVE CORPS 6th Ind.

War Department, J. A. G. O., April 23, 1918.—To the
Adjutant General.

1. The Adjutant General refers to this office for remark the request of the Acting Quartermaster General for a decision as to the legality. of the transfer of enlisted men of the National Army to the Enlisted Reserve Corps, inactive list, to enable them to accept employment in a war industry or to continue their studies in medical or military institutions, attention being directed to the provisions of the Act of June 3, 1916, creating the Enlisted Reserve Corps which provides for the organization thereof by actual enlistments and not by the transfer of enlisted men from another branch of the military service.

It appears that about 3,000 or more enlisted men have been transferred to the Enlisted Reserve Corps, inactive list, for the purpose of continuing medical, dental and veterinary studies or for the purpose of engaging in an industry necessary to the prosecution of the war.

2. The Enlisted Reserve Corps is a component part of the Army of the United States and under the Act of June 3, 1916, with the exceptions of the draft authorized under sections 79 and 111, Id. (Comp. St. 1916, §§ 3044q, 3045), all the component parts of the Army of the United States were maintained by volunteer enlistments for terms fixed therein.

The Selective Service Act, May 18, 1917 (40 Stat. 76), continues all enlistments in the Army of the United States then in force for the period of the emergency and authorizes the President to raise by selective draft the several forces therein mentioned. One of these forces is the so-called National Army. The term of service of its enlisted personnel is the period of the existing emergency and they are subject to the laws and regulations governing the Army of the United States in so far as such laws and regulations are applicable to persons whose permanent retention in the military service is not contemplated. Therefore, the question involves only the right of transferring an enlisted man from one component force to another.

3. In an opinion of this office dated September 17, 1917 (J. A. G. 6-200), in which the question of the transfer of officers and enlisted men from one component force of the Army of the United States to another was dealt with at length, it was held:

"In the light of what I have said, my response to the specific question must be that transfers of enlisted personnel from one force to another, in the sense of absolute incorporation in the force to which transferred, is permissible under the law; and, giving the reasoning the wider application it deserves, it seems to me to require the Department to abolish many of the distinctions which it conceives to exist between

and among such forces. I may be permitted to say here, with all deference, that I think the Secretary of War and the Chief of Staff might well review the department ruling recently made in respect of the appointment of staff officers in the National Army for duty other than with organizations of that army, a ruling accentuating distinctions, which in my judgment have no basis in law or fact. There is but one Army of the United States, and every organization, bureau, officer and man in the military service is a part of it."

4. While this opinion expressed some doubt as to the authority for transferring members of the Enlisted Reserve Corps to other forces composing the Army of the United States, it urged strong reasons for permitting such transfer but expressed no opinion on the converse of the proposition. Transferring enlisted men from the National Army to the Enlisted Reserve Corps will result in raising a part of that force by a different method from that authorized by the statute and doubtless would lead to perplexing complications. Furthermore, such transfers would not be simply from one force to another as contemplated in the opinion just quoted from, but would be from one force to an adjunct of another force which is peculiar to that force.

Section 55, National Defense Act, June 3, 1916, inter alia, provides: "There may be enlisted in the grade or grades hereinbefore specified, for a period of four years, under such rules as may be prescribed by the President, citizens of the United States, or persons who have declared their intentions to become citizens of the United States, subject to such physical, educational, and practical examination as may be prescribed in said rules. For men enlisting in said grade or grades certificates of enlistment in the Enlisted Reserve Corps shall be issued by the Adjutant General of the Army, but no such man shall be enlisted in said corps unless he shall be found physically, mentally, and morally qualified to hold such certificate and unless he shall be between the ages of eighteen and forty-five years. * * * And the Secretary of War is hereby authorized to issue to members of the Enlisted Reserve Corps and to persons who have participated in at least one encampment for the military instruction of citizens, conducted under the auspices of the War Department, distinctive rosettes or knots designed for wear with civilian clothing, and whenever a rosette or knot issued under the provisions of this section shall have been lost, destroyed, or rendered unfit for use without fault or neglect upon the part of the person to whom it is issued, the Secretary of War shall cause a new rosette or knot to be issued to such person without charge therefor. Any person who is not an enlisted man of the Enlisted Reserve Corps and shall not have participated in at least one encampment for the military instruction of citizens, conducted under the auspices of the War Department, and who shall wear such rosette or knot shall be guilty of misdemeanor punishable by a fine of not exceeding $300, or imprisonment not exceeding six months, or both." Comp. St. 1916, § 1892e.

No educational or practical examination is required of a man drafted into the National Army and if he should be transferred to the Enlisted Reserve Corps, he would escape these requirements, and yet become a member of that corps. No provision is made by the statute for the issuance by the Adjutant General of the certificate of enlistment to

any but those enlisted in the Enlisted Reserve Corps nor is any person not an enlisted man of the Enlisted Reserve Corps unless he has participated in at least one encampment for the military instruction of citizens, permitted to wear the rosette or knot provided by the Secretary of War for these reserves. The period of service of members of the Enlisted Reserve Corps is four years while that of the members of the National Army is for the period of the war. It will thus appear that if men are transferred from the National Army to the Enlisted Reserve Corps, it will become composed of two groups or classes enlisted or serving under totally different requirements and for different periods.

To permit such transfers of men from active duty in the forces of the National Army to the Enlisted Reserve Corps, inactive list, appears to be violative of the spirit of the statute which seeks to secure immediate active military service, and does not at all contemplate reserve or inactive service by any men enlisted or drafted under its provisions. In fact, Congress has deemed it necessary to pass the Act of March 16, 1918 (Pub. 105-65th Congress), in order to authorize enlisted men to be released from active service to follow industrial pursuits. That Act provides for furloughing men with or without pay. If an emergency arises requiring more men in the Enlisted Reserve Corps than actually have enlisted therein, a sufficient number of men to meet this requirement could be discharged from the National Army upon the condition that they immediately re-enlist in the Enlisted Reserve Corps and thus obviate violating the provisions of the statute or giving an unwarranted construction thereto.

The object of section 55 of the National Defense Act is clearly and definitely set forth in the first part of that section as follows:

"For the purpose of securing an additional reserve of enlisted men for military service with the Engineer, Signal, and Quartermaster Corps and the Ordnance and Medical Departments of the Regular Army, an Enlisted Reserve Corps, to consist of such number of enlisted men of such grade or grades as may be designated by the President from time to time, is hereby authorized, such authorization to be effective on and after the first day of July, nineteen hundred and sixteen."

The rule of construction is that the law maker has a definite purpose in every enactment. This intention affords a key to the sense and scope of minor provisions. Obviously it was the purpose of this section to build up a reserve force of enlisted men, not by transferring those already in the service to this particular corps, but by obtaining new enlistments. Transferring already enlisted men from the National Army would secure no additional reserve of enlisted men and would fail to carry out the plainly expressed purpose of this section of the National Defense Act.

5. It is my opinion that enlisted men of the National Army cannot be transferred to the Enlisted Reserve Corps, inactive list, to enable them to accept employment in a war industry or to continue their studies in medical or military institutions.

[Signed] James J. Mayes, Acting Judge Advocate General.

MIL.L.-47

31. FORFEITURE OF PAY AS AFFECTING Allotments UNDER WAR RISK INSURANCE

(A)

(Decision of the Comptroller of the Treasury, April 23, 1918.) My decision is requested of a question relative to the forfeiture of pay per sentences of courts-martial, presented by the Quartermaster General of the Army, as follows:

"Various cases in which soldiers have been absent without leave during the period over which a court-martial forfeiture is applied or where the unexecuted portion of sentence has been remitted have given rise to a serious difference of opinion and of practice with reference to the amount of forfeiture which could be collected. * * *

"Does a forfeiture of a fractional part of a soldier's pay per month accrue over a period of time during which the soldier is absent without leave or otherwise in a no-pay status?

"Example (1). Private A, serving in first enlistment period, last paid to Sept. 30, 1917, was sentenced Oct. 20, 1917, to forfeit twothirds of his pay per month for three months; was absent without leave October 5 to 15, November 11 to 16, and December 24 to 29, 1917. In settlement of pay rolls for October, November and December should collection be made on each pay roll of two-thirds of a full month's pay, thereby effecting a collection of forfeiture of pay during the periods of absence, when no pay accrued; or should collection be made of two-thirds of the soldier's accrued pay during each of the months named, and on the pay roll for January, 1918, two-thirds of his pay for twenty days, thereby completing three full months' forfeiture?

"Example (2). Private M, serving in first enlistment period, last paid to Oct. 31, 1917, sentenced Nov. 15 to forfeit two-thirds of his pay for one month. Soldier absent without leave Nov. 1 to 10 and indebted to the United States $5 for transportation. On what date does the court-martial forfeiture commence to run and what amount is properly collectible from November pay, attention being invited to so much of paragraph 13702, Army Regulations, as provides that 'the forfeiture will not begin until such stoppages have been satisfied'?

"Example (3). Private N, serving in first enlistment period, last paid to Oct. 31, 1917, has in force compulsory allotment of one-half his pay, Liberty Loan allotment of $5, and insurance premium of $3.25. Sentenced Nov. 20, 1917, to forfeit two-thirds of his pay for one month. Does the forfeiture attack the entire month's pay; and, if not, what amount is attacked and what amount collectible on the November roll, attention being invited to the fact that the amount of the compulsory allotment is already withheld from the soldier by process of law ?"

The views of the Judge Advocate General of the Army relative to this matter given the War Department March 22, 1918, are as follows: "It is recommended that the Comptroller's decision be requested, but incidently the views of this office will be indicated briefly. Paragraph 13701⁄2, Army Regulations, declares that a sentence imposing forfeiture of a part of the pay for a month or number of months 'means