scribe." The composition of the Regular Army is defined by the National Defense Act, which gives in detail the component parts thereof. Among other things it is provided in section 3 of that Act that

"A brigade, a division, an army corps, and an army headquarters, shall consist of such officers, enlisted men, and civilians as the President may prescribe." Comp. St. 1916, § 1758a.

Further provision is made for the including in the Regular Army of other officers. Section 2 of the National Defense Act, supra, makes the Medical Department a part of the Regular Army but the enlisted force of such department is not included in the effective strength of the Army nor counted as a part of the enlisted force provided by law. Sec. 10. There is a marked distinction between the basis of computation for the appointment of officers in the Medical Corps and for the appointment of officers in the Dental Corps as provided by the Act of October 6, 1917, in that the Medical Corps computation is based upon "the total enlisted strength" while the Dental Corps computation is based upon the "total strength" of the Regular Army. The "total strength" clearly includes the officers of the Regular Army, such civilians hereinbefore referred to as the President may have prescribed, and the enlisted force of the Medical Department, in addition to the enlisted strength used as a basis for computation in fixing the number of officers in the Medical Department as above referred to. This office is, therefore, of the opinion that the "total strength" of the Army and not merely the total enlisted strength should be used as the basis of the computation of the number of officers to be permanently commissioned in the Dental Corps.

4. Answering the second question: Article 2, of the Constitution, section 2, clause 3, provides that:

"The President shall have power to fill up all vacancies that may appear during recess of the Senate by granting commissions which shall expire at the end of their next session."

And section 3 provides that the President "shall commission all the officers of the United States." The proviso of the Act of October 6, 1917, does not require that the dental surgeons shall be reappointed but that they be recommissioned. A commission is but the evidence of an appointment. It was held in an opinion by the Court of Claims in O'Shea v. United States, 28 Ct. Cl. page 400, that the only express statutory provisions as to the form of commission relate to civilian commissions alone; and that the commission, whatever its form, is but an evidence of the fact that the President⚫ has exercised his constitutional power of appointment. The law is well settled that an appointment is complete as soon as the appointing power has designated the person chosen to fill the office. An appointment is nothing more than a choice by the appointing power, in the exercise of an executive discretion, of the person to be appointed. The issuance of a commission, while it evidences the appointment, is but a ministerial act. After the act of appointment is completed the power of the appointing authority is exhausted, and when the appointing power has once exercised this function it has

MIL.L.-49

no more control and cannot revoke the appointment and substitute another in its place. It has no authority to rescind and this is especially true where the appointee has signified his acceptance or has done any act in recognition thereof.

5. By the Act of October 6, 1917, supra, no new appointment is provided for. The reference in the last proviso, "that no dental surgeon shall be recommissioned who has not been confirmed by the Senate" refers to the recommissioning directed in the preceding proviso, "that immediately following the approval of this act all dental surgeons then in active service shall be recommissioned in the Dental Corps in the grades herein authorized in the order of their seniority and without loss of pay and allowances or of relative rank in the Army: And provided further, That no dental surgeon shall be recommissioned who has not been confirmed by the Senate."

This presupposes an appointment. The appointment may have been confirmed or unconfirmed. It was clearly the intention of Congress to prohibit the recommissioning of an unconfirmed prior appoint

ment.

There are four things involved in the acquiring of the status of an officer or changing his grade: appointment, acceptance, confirmation, and commissioning. Each step has a definite and distinct meaning. The appointment is the essential and necessary step, the commissioning a purely ministerial act and not necessary to the validity of the appointment.

The officers of the Dental Corps appointed under the Act of June 3, 1916, had their names sent to the Senate for confirmation and were confirmed. It was not necessary for those officers whose appointments had theretofore been made and confirmed by the Senate to be reappointed, although the Act of October 6, 1917, required them to be recommissioned.

The Act of May 3, 1911 (36 Stat. 1054), provided for a dental corps composed of dental surgeons with the rank of first lieutenants and acting dental surgeons without rank. The National Defense Act, supra, authorized the President to appoint and commission a limited number of dental surgeons with the rank, pay and allowances of lieutenants, captains, and majors. By the Act of October 6, 1917, supra, the number of available appointments was increased by changing the basis of computation from the "enlisted men of the line" to the "total strength" of the Army and abolishing the restriction placed upon the number of captains and majors to be appointed. This act did not provide, as did the National Defense Act, for the appointment, but only for the commissioning, of officers. It provided for the recommissioning of dental surgeons as commissioned officers in the grades authorized therein and in order of seniority without loss of pay, allowance or relative rank, thus giving to such dental surgeons a more distinctive military title but in no respect changing the office, duties or pay. The National Defense Act, supra, gave them the office of dental surgeon with the pay and rank of lieutenants, captains and majors, while the Act of October 6, 1917, supra, established them as commissioned officers, instead of as dental surgeons with rank, pay and allowance of commissioned officers. It gave a new name to the

same office, requiring a new commission under the Act, but no new appointment.

I am of the opinion that the Act of October 6, 1917, supra, does not require the dental surgeons who were in the service on the passage of the Act and whose appointment had theretofore been made and confirmed by the Senate to be again reappointed. Commissions conforming to the change of title given to their offices by the Act should, however, be issued to them.

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

43. DISCHARGE AND RETIREMENT OF DENTAL CORPS OFFICER Discharge XVII B.

19th Ind.

War Department, J. A. G. O., May 23, 1918.-To the Adjutant General.

1. By the preceding indorsement the Adjutant General has submitted to this office for remark a request of the Surgeon General for a decision as to whether in view of the failure of First Lieutenant —, Dental Corps, National Guard, to qualify professionally in an examination for promotion to the grade of captain, he must be honorably discharged and given a year's pay under the Act of April 23, 1908 (35 Stat. 66 [Comp. St. 1916, § 1807]).

ap

2. The papers show that on January 22, 1918, Lieutenant plied to the Surgeon General for promotion under authority of the Act of October 6, 1917 (40 Stat. 397). It appearing that he had completed the requisite service to entitle him to examination for promotion under General Orders 168, W. D., 1917, a board of medical officers was convened to examine him, and the result of the examination was a finding that he was not professionally qualified for promotion. This finding was reviewed by another board, and confirmed.

3. By the Act of October 6, 1917 (40 Stat. 397), Congress removed the limitations imposed by the Act of April 23, 1908, and Section 10 of the National Defense Act of June 3, 1916 (Comp. St. 1916, § 1815a), against promotion of first lieutenants, Medical Corps, to Captain only after three or five years service respectively by enacting that during the existing emergency first lieutenants in the Medical Corps of the Regular Army and of the National Guard shall be eligible to promotions as captain upon such examination as may be prescribed by the Secretary of War. This was the sole purpose of the said Act as the bill was first passed by the House and introduced in the Senate. On the floor of the Senate there was introduced the amendment relating to the Dental Corps, reading as follows:

"Hereafter the Dental Corps of the Army shall consist of commissioned officers of the same grade and proportionally distributed among such corps as are now or may be hereafter provided by law for the Medical Corps, who shall have the rank, pay, promotion and allowances of officers of corresponding grades in the Medical Corps, including the right to retirement as in the case of other officers, and there shall be one dental officer for every thousand of the total strength of the Reg

ular Army authorized from time to time by law: Provided further: That dental examining and review boards shall consist of one officer of the Medical Corps and two officers of the Dental Corps: Provided further, That immediately following the approval of this Act all dental. surgeons then in active service shall be re-commissioned in the Dental Corps in the grades herein authorized in the order of their seniority and without loss of pay or allowances or of relative rank in the Army: And provided further, That no Dental Surgeon shall be re-commissioned who has not been confirmed by the Senate."

The purpose and effect of this provision was to place officers of the Dental Corps of the Army upon the same plane as respects rank, pay, promotion, allowances, and right to retirement as officers of the Medical Corps. It superseded the provision in section 10 of the National Defense Act of June 3, 1916, relating to Dental Surgeons. It applies primarily only to the Regular Army, and authorizes one dental officer for every one thousand of the total strength of the Regular Army authorized from time to time by law, proportionally distributed among the different grades as provided by law for the Medical Corps. It applies to National Guard officers only to the extent that may be consistent. with their temporary status in the Federal service. While in the Federal service National Guard officers are subject to promotion under the same conditions as to examination as govern in the case of officers of the Regular Army. This means that a first lieutenant of the Dental Corps, National Guard, in the Federal service is entitled under the Act of October 6, 1917, to promotion subject to such examination as is prescribed by the Secretary of War for the promotion of first lieutenants in the Medical Corps. By the Regulations (G. O. 168, W. D., 1917) it is required that such lieutenant shall have had a certain period of active service. The legislation under consideration does not, in the opinion of this office, mean that the officers of the National Guard either in the Medical Corps or in the Dental Corps, are entitled to the benefits of all of the provisions of the Act of April 23, 1908, relating to promotions in the Medical Corps. The provisions of that Act, as viewed by this office, and as stated above, apply primarily to the officers of the Regular Army, and are applicable to officers of the National Guard only so far as is consistent with their temporary status. The Act of 1908, it will be observed, provides that should any member of the Medical Corps fail in his physical examination and be found incapacitated for service by reason of physical disability contracted in the line of duty, he shall be retired with the rank to which his seniority entitled him to be promoted. Evidently, this provision is not applicable to National Guard officers. Congress has never directly authorized the retirement of National Guard officers from the Federal service, and, I think, it would require more certain evidence of an intention to confer this right on officers of the Medical and Dental Corps than is indicated in any laws thus far enacted. So, also, with respect to the provision for the honorable discharge of a first lieutenant or captain who fails in his examination for promotion for any other reason than physical disability contracted in line of duty, that such officers shall be discharged from the service with one year's pay. It is the view of this office that this does not apply to National Guard officers, but only

to officers of the Regular Army. Such provision is not consistent with the temporary status of National Guard officers in the Federal service.

has been found disqual

4. In the present case Lieutenant ified professionally for promotion. It does not follow that he must be discharged. In the opinion of this office, he may be retained in the service in the grade of first lieutenant, or he may be discharged under the provisions of Section 9 of the Act of May 18, 1917 (40 Stat. 62), which authorizes the President to discharge all classes of officers therein indicated, including National Guard officers, "for any cause which, in the judgment of the President, would promote the public service." Upon his discharge under this provision Lieutenant would not be entitled to any extra pay; unless the discharge should be based upon the approved finding of a board which reports adversely to his continuance in the service, when he would be entitled to one month's pay and allowances.

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

44. ASSESSMENT OF GROUP DAMAGES UNDER A. W. 105

1st Ind.

War Department, J. A. G. O., May 29, 1918.-To the Division Judge Advocate, 40th Division, Camp Kearny, California.

1. In your letter of May 17, 1918, in the matter of assessment of damages against soldiers under the 105th Article of War (Comp. St. 1916, § 2308a), where the particular soldiers or the particular organization to which they belong can not be determined so that the assessment would have to be made against the entire command, you suggest the advisability of having the damages paid by the Division Exchange, the surplus of which belongs in the form of dividends to the men of the command. In this way, as you point out, much clerical work would be saved.

2. In a report of this office, dated April 6, 1918 (AGO—153, Misc. Div.), in a case where it was found impossible to determine the individual soldiers who were responsible for the damages, or the particular command to which they belonged, it was said:

"Within reasonable limits, it matters little just how such assessments as are contemplated by Article 105 are collected. In some instances funds in small amounts have been raised by deduction from the funds of the post exchange."

Owing to the practical difficulties in assessing the damages against the pay of the individual soldiers, of an entire command, it would seem that where the board finds that the damages were committed by soldiers belonging to the command, but is unable to more definitely locate the responsibility, the damages may be collected from the proceeds of the post exchange in which the entire command is interested.

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