cient age to make a contract or not, is under obligation to serve and defend the constituted authorities of the state and nation, and for that to bear arms when such service is required of him. And why purpose may not a minor capable of bearing arms, bind himself by his consent or what is the same thing, contract to do so? Why may not a man of 17 or 18 do this as well as a man of 21? There is certainly nothing alarming in this. Clearly in cases of necessity, the state has the right to enlist whomsoever it pleases. Society could not otherwise be maintained unless every member thereof was obliged to serve and defend the state. These principles are recognized and discussed in the well known cases of In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636, and In re Morrissey, 137 U. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644, where the rule is distinctly enunciated; that the age at which an infant shall be competent to perform any military duty depends wholly upon the legislature; that questions of eligibility for such service are solely for the benefit of the government and that age is not of the essence of the contract. If the matter of age were not incidental, then a person enlisting could utter a falsehood to create the military status, and then whenever it suited his purpose, avoid it by pleading the truth. It is provided in section 27 of the National Defense Act, June 3, 1916 (39 Stat. 186 [Comp. St. 1916, § 1885a]) that minors over the age of 18 can enlist without the written consent of their parents or guardians; and it is also provided in section 57 of the same Act (39 Stat. 197 [Comp. St. 1916, § 3041]).

"That the militia of the United States shall consist of all able-bodied male citizens of the United States and all able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than 18 years of age, and except as hereinafter provided, not more than 45 years of age.'

So clearly by the existing law, a minor over the age of 18 can enlist in the militia of which the National Guard is a part, and can enlist in any of the land forces irrespective of the consent of his parents or guardian. The law is well settled, that if the application for a discharge is not made until after the minor has attained the age of 18 years, his enlistment is validated by his service after attaining such age. This rule was recognized and enforced in Ex parte Hubbard (C. C.) 182 Fed. 76, and in Ex parte Dostal (D. C.) 243 Fed. 664.

The suggestion that this Government should adopt the liberal attitude now characteristic of the Canadian Government and discharge from our Army, at the request of their Governments, those of foreign. birth and allegiances who may have enlisted during their minority, presents a question of comity and administrative policy. The President and the Secretary of War are authorized by Army Regulation 13 to order such a discharge. Concededly they would not do so if in their judgment the military service would be weakened or impaired. But as to whether they should adopt such a policy in the instant case or in others of a similar nature is a matter concerning which this office expresses no opinion.

4. It is the opinion of this office that if Erling Marius Aune voluntarily enlisted in the military forces of the United States and has served in such forces since he attained the age of 18 years, that his enlist

ment cannot be avoided either by himself or his parents and that he cannot now be discharged from the military forces by reason of his having been under the age of 18 at the time he enlisted therein, unless the President or the Secretary of War should deem it expedient to order his discharge.

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

53. EFFICIENCY BOARDS

July 15, 1918. From: The Office of the Judge Advocate General. To: The Judge Advocate, Southeastern Department, Charleston, S. C. Subject: Efficiency boards.

1. In your letter of June 20, 1917 you ask various questions relating to the procedure of efficiency boards in several recent cases submitted to you for your opinion thereon. It is not believed by this office that a consideration of these individual records is called for, neither is it believed desirable to attempt to formulate specific answers to your questions. On the contrary, it is believed that the more helpful course will be to formulate certain general statements with reference to efficiency boards from which answers to your specific questions, and others which may arise, may be deduced.

Efficiency Boards-Authority for.

2. The term "efficiency boards" is generally applied to boards of officers convened under the authority of statutes or regulations for the purpose of passing upon the fitness of officers for commissioned service, and make reports thereon.

Such a board is authorized by section 9 of the Selective Service Act (Act of May 18, 1917, Bulletin 32, War Dept., 1917 [40 Stat. 76]), to examine into and report upon the capacity, qualifications, conduct and efficiency of officers appointed under the 2d, 3d, 4th, 5th, 6th, and 7th paragraphs of section 1 and under section 8 of that Act, and also of temporary officers appointed in the Regular Army under the authority of the 1st paragraph of section 1 of that Act. Boards convened under this authority must be convened by "the general commanding any division or higher tactical organization or territorial department."

For officers of the Reserve Corps the appointment of an efficiency board is authorized by paragraph 41, Special Regulations No. 43, as amended by Changes 4, January 17, 1918. Under these regulations a board may be appointed by the "commanding officer" of the officer to be investigated. It should be noted that in its original form the regulation provided that this board could be convened only by a departmend commander or the Adjutant General.

For provisional officers in the Regular Army the appointment of an efficiency board is authorized by paragraph 1 of section VII, G. O. No. 76, W. D., 1917. This order may also be cited as authority for convening boards in cases of temporary officers of the Regular Army although the better practice would be to rely upon the statutory au

thority contained in section 9 of the Selective Service Act (Bulletin 32, W. D., 1917), since a comparison of the regulation with the statute shows that the former is not so broad as the latter in respect to the officers who may convene an efficiency board in this class of cases.

The Convening Order.

3. The order convening an efficiency board must show the authority under which it is convened. It should be in form approximately as follows:

"Under the authority of (section 9, Act of May 18, 1917) (— -) a board of officers is hereby appointed to meet at the call of the senior member thereof to examine into and report upon the (capacity, qualification, conduct and efficiency) of (such officers as may be ordered before it) (1st Lieut. N. A.) etc."

The order must, of course, show that it was issued by one having authority to do so.

If such an order as that outlined above is issued to examine into and report upon such officers as may be ordered before it, without designating any particular officer, by one who is not "the general commanding any division or higher tactical organization or territorial. department," the order is ultra vires and void. The issuance of such an order would constitute a jurisdictional error and a board convened thereby would be without authority to function as an efficiency board. Its proceedings should properly be declared void and of no effect. Such an illegally constituted board could not lawfully function in a particular case even though the officer referring the same to the board for its consideration would have authority under some other provision of law or regulation to convene a lawful board for that particular case. And the same holding would have to be made if "the general commanding any division or higher tactical organization or territorial department" should order an officer of the Reserve Corps, before a board convened under section 9, Selective Service Act (Bulletin 32, W. D., 1917) to pass generally upon such officers as may be ordered before it. In either case, however, the legality of an executed discharge by the President cannot afterwards be questioned, because of the full and summary power conferred upon him by the statute and hereinafter to be discussed.

If, however, a commanding officer acting within his legal authority convenes an efficiency board to pass upon a particular officer and erroneously cites section 9, Act of May 18, 1917, or some other inapplicable provision of law or regulation as authority for his action, it should be held that, having authority to convene a board in the particular case, an erroneous citation of the authority under which he acts, while it would constitute an irregularity, would not amount to a jurisdictional defect. The report of such a board should not, therefore, be held invalid or void, but may be properly approved and its findings carried into execution. In this case, the order will show upon its face both the fact of jurisdiction to convene the board and the nature of the error committed, which latter may be corrected by proper order or by a notation or certificate by the convening au

thority at the time he passes upon the proceedings, or subsequently thereto, that the board was in fact convened under proper authority, citing it.

Summary Dismissal by the President.

4. Under section 9 of the Act of May 18, 1917, "the President * * * authorized to discharge any officer from the office held by him under such appointment for any cause which in the judgment of the President would promote the public service." Under section 37 of the National Defense Act (Comp. St. 1916, § 1881a), he may terminate the commission of an officer of the Reserve Corps in his discretion.

Having reference to these provisions of law, it has been suggested that in cases where an indorsement from the Adjutant General's office has erroneously directed an officer of one class to be brought before an efficiency board under the authority of a statute or regulation pertaining to some other class, or in cases where a convening authority has acted beyond his jurisdiction in convening efficiency boards, the boards may be regarded as extra legal but their reports submitted nevertheless to the President as advice upon which he may act in terminating the commission of an officer under the statutory authority just referred to. Beyond question the President, should he so desire, in summarily discharging an officer under section 9 of the Selective Service Act or a Reserve Corps Officer under section 37 of the National Defense Act, may, in the one case, base his action upon any "cause which in his judgment would promote the public service," and, in the other, upon any reason which appeals to or satisfies his discretion. In either case, he may, should he so desire, base his action upon the report of a board which may have acted wholly without authority in passing upon the case of the particular officer in question.

Every officer other than the President whose duty it is to convene efficiency boards or to pass upon their proceedings should, however, exercise every possible care to secure regularity in all that has to do with their organization, investigations and reports. If proceedings are initiated by a commanding general looking to the termination of an officer's commission through the report of an efficiency board, both the organization of the board and its proceedings throughout should be made so regular as to leave no reason or necessity for asking the President to accept a report based upon irregular or void proceedings as advice upon which to terminate an officer's commission through the summary power vested in him. A forceful reason for this suggestion is found in the fact that the statute (section 9, Act of May 18, 1917) confers upon officers who are discharged upon the approved recommendations of an efficiency board, one month's pay and allowances, while for those who are summarily dismissed by the President, no such benefits are provided. This fact suggests that the method of terminating commissions by summary dismissals was intended by Congress to meet the unusual case where a sufficient reason presents itself to the President to induce him to order an officer's discharge without the advice of an efficiency board, rather than to enable the President to in

terpose his summary power to complete the action in a case in which an efficiency board has been convened without authority or in which it has acted beyond its jurisdiction. As indicated above, however, the legality of the discharge cannot be questioned even in a case of this kind.

If a commanding general should receive from the War Department an order to send an officer before an efficiency board and such order conflicts with the statute or regulation, he should invite the attention of the War Department to this conflict and ask for further instructions or, in case of urgency, should act under the statute or regulation upon the assumption that the order in question had erroneously designated the authority under which a board should be convened in the particular case.

The commanding officer who discovers from the proceedings of a board in a particular case that it has acted therein without jurisdiction, should not hesitate to disapprove such proceedings and to direct that the officer be passed upon by a properly constituted board. If he discovers that the proceedings of the board are merely irregular as hereinbefore pointed out, he should approve such proceedings, should his discretion so determine, and forward the same to the War Department for its action.

Form of Record.

5. Paragraph 1 of section 7, G. O. 76, W. D., 1917, prescribes that the proceedings in the case of an efficiency board convened under the authority of that section should be similar to the proceedings of a retiring board. The exact form of proceedings of efficiency boards convened under any other authority is not prescribed. It is obvious, however, that the procedure should be essentially the same in all cases. In an approved opinion of this office under date of September 14, 1916, relative to procedure of efficiency boards convened under section 77, National Defense Act (Comp. St. 1916, § 30440), an outline of the procedure which might properly be followed by such boards was given. It is believed that the procedure there outlined might properly be adopted for the purpose of governing all efficiency boards under whatsoever authority convened. In that opinion it was stated that the proceedings of the efficiency board should include:

"(a) The order convening the board;

"(b) The organization of the board, including the place and date and the names of the members present and absent;

“(c) The full name, rank and organization of the officer whose case is before the board for investigation as to his fitness for service, and a statement to the effect that such officer appeared before the board; was permitted to challenge for cause; was permitted to be present during the hearing of all evidence; and was afforded opportunity to be represented by counsel, to question adverse witnesses, to submit evidence, and to make a statement; either in his proper person or by counsel;

"(d) The full name, rank and organization of each witness; a statement that each witness was duly sworn; and a transcript or synopsis. of the testimony given by each witness;