"(e) True copies of all written evidence considered by the board; "(f) A transcript or synopsis of any evidence given or statement made by the officer undergoing the investigation, and a copy or synopsis of any argument made by counsel; "(g) The findings and recommendation of the board; "(h) A minority report by any member who dissents from the finding of the board." 6. The question of the regularity and sufficiency of the record should be passed upon in each individual case in the light of the foregoing general statements. CWM. [Signed] James J. Mayes, Acting Judge Advocate General. 54. RELATIVE RANK OF TEMPORARY AND PERMANENT COMMISSIONS 2d Ind. War Dept., J. A. G. O., July 18, 1918.-To the Adjutant General. 1. The accompanying papers present the question whether temporary 1st Lieut. Roland M. Glenn, 22d Infantry, whose commission as such dates from October 26, 1917, will, if he accepts a provisional commission as first lieutenant, dated November 5, 1917, be held to have vacated his temporary commission and be outranked by his present juniors who now hold temporary commissions of even date with his own. This specific case, informal inquiry at the office of the Adjutant General discloses, is typical of many others; and the decision herein must, therefore, be determinative of the broad question of whether the senior temporary officer in any grade of the Regular Army who accepts a permanent commission in the same grade must become the junior of all officers holding temporary commissions in that grade and in the same arm, staff corps, or department whose temporary commissions antedate his permanent commission but who are his juniors in the Regular Army. 2. The instant case requires a consideration of two previous opinions of this office. In an opinion rendered by this office under date of August 30, 1917 (J. A. G. 64.311) the following was said: "In my judgment one may not hold two offices in the same military establishment without specific legislative authority therefor. This may be regarded as inferentially established by the fact that Congress has deemed it necessary to protect the commission of an officer in the Regular service when appointed to any other force in the Army of the United States. The incompatibility existing between two officers in the same military establishment is obvious. It is settled that two offices are incompatible when a performance of the duties of the one will prevent or conflict with a performance of the duties of the other, or when the holding of two is contrary to the policy of the law. * ** "It is my opinion, therefore, except in so far as the statute may give express protection, an officer in one of the component forces of the United States may not hold a position in another such com ponent; and that if he be appointed to any such second office, he thereby vacates his former commission." The opinion just referred to goes to the extent of holding that an officer in one of the component forces of the United States may not hold a commission in another such component. It does not hold, for that point is not involved in the facts of that case, that the same officer may not hold both a permanent and a temporary commission in the same grade at one and the same time although there is language in that opinion which points to this conclusion. The opinion indicates, however, that one may hold two commissions whenever there is legislative authority therefor. The other opinion to which reference is made is an opinion under date of September 4, 1917 (J. A. G. 82.121) construing that part of section 8 of the Selective Service Act (Act of May 18, 1917 [40 Stat. 81]) considered in connection with section 114 of the National Defense Act governing the subject of promotions to fill temporary vacancies in the Regular Army which occur by reason of the appointment of Regular Army officers to higher grades in the National Army. In the course of that opinion the following was stated: "It is impossible to foresee and discuss every contingency that may arise in the administration of this law under the construction which I have just indicated will be the proper one to adopt; but it is believed that the difficulties under this plan will be few in comparison with those that would inevitably arise under the alternative construction suggested and that none of those that do arise will prove to be insuperable. It may be proper, however, in addition to what has been stated, to refer to the matter of permanent promotions in the Regular Army. When an officer becomes entitled to a permanent promotion in the Regular Army he must, of course, accept the same. If he is serving as a colonel, let us say, in the National Army and becomes a permanent colonel in the Regular Army, he should ordinarily be continued in service in the National Army. This could involve no impairment of his rank since his commission as a colonel in the National Army would antedate his commission as a permanent colonel in the Regular Army. If, however, an officer is serving as a temporary colonel in the Regular Army, and is promoted to be a permanent colonel therein, it may well be that his commission as a permanent colonel will be subsequent to that held by other temporary colonels who are his juniors in his arm, staff corps, or department. It is my view that the statute intended to protect officers of the Regular Army against a contingency of this kind when it provided that they should not be 'prejudiced in their relative or lineal standing in the Regular Army.' I think it would be a fair construction of this language to hold that Congress intended that no officer of the Regular Army, serving under a commission therein, shall be required to serve with lower rank than that held by a junior in his arm, staff corps, or department and who is also serving under a commission therein. This situation can be obviated by giving the officer who receives the permanent promotion a constructive date of rank as of the date of the temporary commission which he vacates to accept his permanent commission. This may be found necessary to maintain him in his proper relative or lineal standing in the Regular Army. Cases of this kind will, it is believed, be few in number and can be taken care of by administrative action without difficulty. This construction of the statute and the suggested administrative action thereunder would amply protect officers of the Regular Army in so far as Congress intended to extend protection, and would leave the question of relative rank as between officers serving under commissions in some other army, where Congress, I think, intended to leave-to the fortunes of war and the incidents of service." The case which was then anticipated has now arisen and the office of the Adjutant General has informally advised this office that the suggestion made in that part of the opinion, quoted just above, to the effect that the senior temporary officer in any grade of the Regular Army who receives a permanent promotion in the same grade be given "a constructive date of rank as of the date of the temporary commission which he vacates to accept his permanent commissions," has proven to be impracticable in actual practice. As pointed out in the opinion last cited, the statute evidently intended to protect officers of the Regular Army against the contingency which the instant case presents when it provided that those who are temporarily promoted under the provisions of section 114 of the National Defense Act (Comp. St. 1916, § 1908a) shall not "be prejudiced in their relative or lineal standing in the Regular Army." It would, therefore, as stated in that opinion, be no more than a fair construction of the language of the statute to "hold that Congress intended that no officer of the Regular Army, serving under a commission therein, shall be required to serve with lower rank than that held by a junior in his arm, staff corps, or department and who is also serving under a commission therein." This provision of the statute may then be held to supply the legislative authority which, as pointed out in the opinion of this office under date of August 30, 1917 (J. A. G. 64.311) is necessary to authorize an officer to hold two commissions in the same military establishment at one and the same time. 3. It is the opinion of this office, therefore that an officer of the Regular Army who has been temporarily promoted to higher rank therein and who, while holding such temporary rank is permanently promoted to the same grade, may, during the existing emergency, hold his temporary commission for the purpose of fixing his rank in such grade so long as he remains therein. Applying this general conclusion to the facts of the instant case, it is the opinion of this office that Lieut. Glenn may accept his provisional commission as a first lieutenant dated November 5, 1917, and at the same time retain, during the existing emergency, his temporary commission, dated October 26, 1917, for the purpose of fixing his rank in that grade, so long as he remains a first lieutenant. [Signed] S. T. Ansell, Acting Judge Advocate General. 55. MILEAGE and Travel AllowanCES FOR OFFICERS TESTIFYING BEFORE CIVIL COURTS 3d Ind. War Department, J. A. G. O., July 23, 1918.-To the Adjutant General. 1. In his communication herewith First Lieutenant Francis G. Trainor, Air Service, Camp Greene, Charlotte, N. C., invites attention to the fact that he complied with a subpoena served upon him at Camp Greene by the sheriff of Mecklenburg County, N. C., from the County District Court of Bell County, Texas, commanding him to appear in that court as a witness "in a certain criminal action" pending in the Texas court, being the prosecution of three enlisted men of the Army, Privates Gerald A. Brice, Clinton B. Hughes, and George A. Bath, charged with murder, and he states that the State of Texas has refused to pay him witness fees or mileage or to reimburse him in any way for expenses incurred under the subpoena. He says he was informed by the state authorities that the laws of Texas make no provision for payment of witness fees, etc., on a subpoena served without the territorial boundaries of the state, and he requests that "the telegraphic instructions of the Adjutant General, dated June 12, 1918, be amended to read that the travel commanded by the subpoena is necessary in the military service," or that such further order be made as will enable him to secure reimbursement of expenses incurred in obeying the subpoena. 2. Lieutenant Trainor explains that he was directed by special orders from headquarters, Aviation Camp, Waco, Texas, May 13, 1918, to proceed to Austin, Texas, or elsewhere within the Southern Department in an effort to apprehend the three soldiers mentioned who were then charged with murder and desertion, and that he and another officer succeeded in arresting the prisoners whom they turned. over to the civil authorities for trial "pursuant to verbal order of the Commanding Officer"; and further, that subsequently, about May 25, 1918, he moved with his command from Waco, Texas, to Charlotte, N. C., where he was served with the subpoena, as shown above. Enclosed with the papers is a copy of a telegram from The Adjutant General of the Army dated June 10, 1918, in reply to a telegram from the Commanding Officer, Camp Greene, reading as follows: "Replying to your telegram of June eighth requesting authority to send Lieutenants Trainor and Rabineau Aviation Section Signal Corps to Belton comma Texas period If trial is being held before civil courts you will authorize these two officers to comply with subpoenas if served on them and in case that the trial is being held before military courts you will order them to proceed to Belton for the purpose mentioned and to return to their proper station upon completion of their duties before the court." 3. The Adjutant General did not order Lieutenant Trainor to obey the subpoena, nor did the telegram direct that he be so ordered. It merely authorized Lieutenants Trainor and Rabineau to comply with the summons. This was in pursuance of paragraph 9962, Army Regulations. It is expressly provided in paragraph 75, Army Regulations, that officers and enlisted men reporting as witnesses before a civil court should receive from the civil authorities the necessary expenses incurred in travel and attendance and that neither mileage nor travel allowances will be paid in such cases by the War Department. Under the facts stated in the accompanying papers, it is clear that Lieutenant Trainor is not entitled to be paid mileage or to be reimbursed his expenses from federal funds. [Signed] S. T. Ansell, Acting Judge Advocate General. 551/2. REMOVAL OF Reserve OFFICERS FROM INTERNMENT TO OFFICERS' CAMP 3d Ind. War Department, J. A. G. O., July 20, 1918.-To the Adjutant General. 1. The question asked by E. Sorensen, Fort Douglas, Utah, a reserve officer in the German navy, interned at the place named, but not on active duty at the time of internment, is whether he is entitled to be removed to a camp for captive officers. 2. It is assumed that this German was interned by applying the Executive Proclamation of April 6, 1917, which was issued under section 4067 of the Revised Statutes. The theory of such internment is simply that the person interned is dangerous. It is not essential that such interned person should be actually or even potentially a member of the hostile forces. Such an internment is a process applied to civilians by civilians and for protection against offenses of a civilian nature. Such an internment does not make a person a prisoner of war in the strict sense. It is not necessary to ask whether such an internment would assume a military aspect if actually applied to a military person; for the person in this case did not have a military character when interned, and internment did not confer upon him a military character. The conclusion is that this German is not entitled to be removed to a camp for captive officers. [Signed] S. T. Ansell, Acting Judge Advocate General. 56. ALLOTMENTS ON LIBERTY BONDS AS AFFECTED BY DISCHARGE 2d Ind. War Dept., J. A. G. O., July 26, 1918.-To the Adjutant General. 1. The opinion of this office is desired by the Quartermaster General on the question whether in the case of enlisted men sentenced to be dishonorably discharged and to forfeit all pay and allowances, such sentence of forfeiture includes Liberty Bond allotments, or whether such allotments which have been deducted from the pay of enlisted men "are to be treated as deposits." The Quartermaster General states that refundment and delivery of bonds to men so discharged are being suspended pending a decision of this question. 2. Allotments of soldiers for payment on Liberty Bonds are es |