that had accrued at the time of his desertion. United States v. Landers, 92 U. S. 77, 23 L. Ed. 603. While absent without leave, a soldier forfeits his right to pay and allowances. But in neither case does the forfeiture extend beyond the date the soldier is returned to military control. His pay and allowances from that time begin to accrue, and he is entitled to be paid compensation for the future unless it be forfeited by court-martial or deducted under A. R. 127. The declaration in A. R. 129, that the soldier will receive no pay while awaiting trial for desertion does not mean that no pay accrues to him, but simply that he will not receive it while he is awaiting trial, the reason being that it is subject to forfeiture by court-martial, or may be deducted in payment of the expenses of his apprehension and delivery if he is found guilty of desertion (A. R. 127). In the paragraph next following (A. R. 130) it is specifically provided that the soldier is entitled to pay and allowances from the date of his return to military control; that is, his pay and allowances begin to accrue from that date and may, after his case is disposed of, be paid to him unless they be forfeited by a court-martial sentence, or required to pay the expenses of the soldier's apprehension, etc. See Manual for the Quartermaster Corps, paragraphs 1331 to 1337. [Signed] James J. Mayes, Acting Judge Advocate General. 33. ELIGIBILITY BY INDUCTED MEN FOR WAR RISK INSURANCE BENEFITS (A) May 1, 1918. From: The Office of the Judge Advocate General. To: The Bureau of War Risk Insurance, Legal Section. 1. In a communication dated April 26, 1918, from the Legal Section, Bureau of War Risk Insurance, to the Judge Advocate General, inquiry is made as to the status of so-called inducted men. It is stated that these men have been voluntarily inducted into the military service prior to the time when they would be regularly called in the draft; that they are paid from the time they receive their travel allowance. from their local boards; that they are transported to camp, held in quarantine for two weeks, during which time they are inoculated, and given complete outfits of clothes, but are not sworn in; that at the end of two weeks many of them are discharged for physical defects; and that during said two weeks many of them make application for War Risk Insurance. The opinion of this office is desired as to the validity of applications for insurance of such of these inducted men. as are discharged at the end of two weeks. 2. This office is informed by the office of the Provost Marshal General that men who have been inducted into the military service, pursuant to the Selective Service Regulations, prior to the time that their draft number is called, are treated in all respects by their local boards as other drafted men. They are first examined by the local boards, and after having passed satisfactory physical examination are classi fied by their local boards for unlimited military service, and are then permitted to be inducted into special branches of the service before their numbers in the draft are called. They are regarded as in the service from the date upon which their orders require them to entrain or report for military service. Consequently, these men are in active service within the meaning of the War Risk Insurance Act of October 6, 1917 (40 Stat. 398), from the date when they obey the order to report for military service. Insurance applications made by them. during the two weeks when they are in quarantine are valid and entitle them to insurance under article IV of said act. The fact that no oath has been taken by them is entirely immaterial. The law does not require or contemplate that any oath be taken by men drafted into the service or by men inducted into the service in the manner above described. [Signed] James J. Mayes, Acting Judge Advocate General. (B) 6th Ind. War Department, J. A. G. O., July 5, 1918.-To the Adjutant General. 1. There are referred to this office for opinion the following papers: Telegram from Major General Greene to the Adjutant General of the Army; telegram from the insurance officer at Camp Lewis, Washington, to the Director of the Bureau of War Risk Insurance; telegram from Commissioner Nesbit of the Bureau of War Risk Insurance to the insurance officer at Camp Lewis, Washington; and various indorsements transmitting these papers through military channels. In the papers in reference two questions are raised: (1) At what date do compulsory allotments of draft delinquents begin to run? (2) At what date does the 120 day period within which a member of the military forces must make his application for War Risk Insurance begin to run? Commissioner Nesbit advised that the compulsory allotment begins on the same date when pay begins to accrue, which is taken to be the day when the man actually reports for duty. Major General Greene recommends that the same date be taken as the date upon which the 120 day period above referred to begins to run. 2. When a man drafted into the military service of the United States fails to respond to the order directing him to report, he is either absent without leave or in desertion. Consequently, no pay accrues to his credit, and there is no pay from which a compulsory allotment can be made. Therefore this office is of the opinion that Commissioner Nesbit's ruling is substantially correct. By the terms of the 2d Article of War, the Selective Draft Act and the Selective Service Regulations a man is in the military service from the date which is specified as the date on which he is required to report in the order directing him to report for service. The 120 day period begins to run from that date. By neglect or refusal to report he cannot extend the time for making such application. [Signed] James J. Mayes, Acting Judge Advocate General. 34. DISCHARGE FOR DISLOYALTY PRIOR TO ACTIVE SERVICE Office IV E 2-Discipline VIII G. 2d Ind.. War Department, J. A. G. O., May 2, 1918-To the Adjutant General. 1. These papers relate to First Lieutenant Medical Reserve Corps, and present the question whether or not he may be brought to trial by court-martial for his alleged disloyal utterances before being ordered into active service. The preceding indorsement indicates that this officer was ordered to active duty April 24, 1918. The other papers in reference show that the alleged disloyal sentiments expressed by him were so expressed, if at all, prior to the time he was ordered into active service. Section 38 of the National Defense Act of June 3, 1916 (39 Stat. 166, 191 [Comp. St. 1916, § 1881b]), provides that— "Any officer who, while holding a commission in the Officers' Reserve Corps, shall be ordered to active service by the Secretary of War shall, from the time he shall be required by the terms of his order to obey same, be subject to the laws and regulations for the government of the Army of the United States, insofar as they are applicable to officers whose permanent retention in the military serv ice is not contemplated." The 2d Article of War (Comp. St. 1916, § 2308a) provides that"The following persons are subject to these Articles and shall be understood as included in the term 'any person subject to military law' or 'persons subject to military law,' whenever used in these Articles; provided, that nothing contained in this Act, except such as specifically provided in Article II, subparagraph (c), shall be construed to apply to any person under the United States Naval jurisdiction unless otherwise specifically provided by law. "(a) All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted or ordered into, or to duty for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same." It is the opinion of this office that Lieutenant referred to in the accompanying papers, did not become subject to military law until ordered to active service, and may not be tried by court-martial for the acts committed, or disloyal utterances made, by him prior to that time. 2. It may be proper to remark that the papers in reference disclose some misunderstanding or confusion concerning this officer. In a communication under date of March 27, 1918, addressed to this office by the Chief, Military Intelligence Branch, Executive Division, it was stated that this officer was then on duty at Kelly Field, San Antonio, Texas, and in that communication there was a digest of two reports concerning him made to the Military Intelligence Branch under dates of February 21 and February 28, 1918. The communication and the digest of reports referred to indicated that the of ficer had been guilty of conduct which might properly be made the basis of charges triable by court-martial, and further disclosed that the witnesses whose testimony must necessarily be used to support the charges lived in and around New York City. In this situation, this office, under date of April 4, 1918, recommended that the officer be sent to the Eastern Department for trial, and the report of the Military Intelligence Branch be referred to the Commanding General of the Eastern Department, with a view to the immediate formulation of charges against him. Obviously, if this officer was not ordered to active duty until April 24, 1918, the statement that he was on duty at Kelly Field on March 27, 1918, was an error and must have resulted from confusing him with some other officer. 3. If upon investigation it shall be found that the officer ordered to active duty on April 24, 1918, is the person referred to in the communication from the Military Intelligence Branch under date of March 27, 1918, and that prior to being ordered to active duty he was guilty of acts of disloyalty, or the expression of disloyal sentiments, such as enumerated in the communication of March 27, manifestly, he should not be retained in the service. It appears that he was appointed an officer in the Medical Reserve Corps on March 29, 1917, that he accepted the appointment on April 6 and took the oath as an officer April 7, 1917. The appointment was made under authority of section 37 of the National Defense Act (Comp. St. 1916, § 1881a), and the concluding paragraph of that section reads in part as follows: "The commission of all officers of the Officers' Reserve Corps shall be in force for a period of five years, unless sooner terminated in the discretion of the President." The plain meaning of this language is that the President, at his discretion, may at any time and for any cause deemed sufficient by him, terminate the commission of an officer of the Reserve Corps. The power thus conferred upon the President has not been restricted by any subsequent legislation. Paragraphs 41 and 42, of Special Regulations No. 43, pertaining to the Officers' Reserve Corps as amended by Changes No. 4 of said Special Regulations No. 43, W. D., January 17, 1918, authorize the convening of a board to examine into and report upon whether or not a member of the Officers' Reserve Corps is unfitted for his duties by reason of habits, lack of character, or inefficiency. The power conferred upon the President to terminate the commission of a member of the Officers' Reserve Corps is statutory and is not restricted or impaired by these regulations. The latter simply provide a machinery for the investigation into the character, conduct," qualifications, and efficiency of a reserve officer, as a matter of administrative convenience, and for the information of those who may be called upon to report upon these matters, or for the information of the President who may be called, in the exercise of his discretion, to terminate the commission of a reserve officer. The discretionary power of the President to terminate the commission of a reserve officer, under section 37 of the National Defense Act, taken in connection with the regulations which provide for the convening of a board to examine into and report upon the fitness of a reserve offi cer to remain in the service, provide methods for the elimination of reserve officers, quite analogous to that provided by section 9 of the Selective Service Act for the elimination of officers appointed pursuant to the several sections and paragraphs of that act enumerated in said section 9. As in section 9, the President is given authority to discharge any officer for any cause, which in his judgment, would promote the public service, and additionally, provision is made for the convening of a board of officers to examine into and report upon the character,, conduct and qualifications of officers therein referred to, so section 37 of the National Defense Act and the regulations pertaining to reserve officers which have been referred to, provide for like machinery for the elimination or the discharge of reserve officers. 4. In the present case, it is the opinion of this office that it would not be advisable to convene a board under the provisions of Paragraphs 41 and 42, and changes No. 4, Special Regulations No. 43; that the President at his discretion, notwithstanding such regulations, may terminate the commission of the officer in question for any cause, which, in his judgment, is sufficient, and that the commission of this officer should be terminated by executive action, under the authority of section 37 of the National Defense Act, should investigation prove that he has been guilty of the conduct charged against a reserve officer of like name in the communication of March 27, 1917, from the Chief, Military Intelligence Branch, Executive Division. [Signed] James J. Mayes, Acting Judge Advocate General. 35. RE-ENLISTMENT STATUS 2d Ind. War Department, J. A. G. O., May 7, 1918.-To the Adjutant General. 1. The Adjutant General submits to this office for remark a let ter dated April 24, 1918, from Lieut. M. C. Custin, F. S. Ret., requesting information as to the status of an enlisted man of the Army of the United States, who has been heretofore discharged to accept a commission and who tenders himself for re-enlistment within three months after the termination of his commissioned service, but before the passage of the Act of Congress, approved March 30, 1918. (Pub. 105, 65th Cong.) From the papers in reference it appears that David McCartney on November 26, 1917, was discharged to accept a commission; that he resigned February 28, 1918, and re-enlisted as a private March 18, 1918. It does not clearly appear from the papers what grade was held by him before being discharged, but it is assumed that he was a sergeant G. S. I., and was discharged to accept a commission in some component part of the Army of the United States. 2. The Act of Congress, approved March 30, 1918 (Pub. 115, 65th Cong.), provides: "That any enlisted man of the Army of the United States, who has heretofore been, or shall hereafter be, discharged to accept a commission in any component part of the Army of the United States, |