stated:

The several questions propounded by you will be answered as they are (1) What is the meaning of the wording "commissioned provisionally in the United States Army "?

Answer: Section 23 of the national defense act, approved June 3, 1916 (39 Stat. 166, 181), provides, inter alia:

"Hereafter all appointments of persons other than graduates of the United States Military Academy to the grade of second lieutenant in the Regular Army shall be provisional for a period of two years, at the close of which period such appointments shall be made permanent if the appointees shall have demonstrated their suitability for such permanent

* *

appointment * (2) What is the difference, if any, between commissions in the Regular Army, the National Army, the National Guard, the Reserve Officers' Corps? Answer: A commission in the Regular Army is a permanent one carrying with it the right to retirement, and can be terminated only in the manner provided by law.

Commissions in the National Guard, drafted into the service of the United States, and the National Army are for the period of the emergency and can be terminated by the President for any cause which, in the judgment of the President, would promote the public service, or upon the approved finding of a board of officers appointed by the general commanding a division or higher tactical organization or territorial department. (See sec. 9, selective service act, approved May 18, 1917, 40 Stat. 76, 82.)

Commissions in the Officers' Reserve Corps are for a period of five years, unless sooner terminated in the discretion of the President. (See sec. 37 of the national defense act, supra.)

(3) Can an officer in any of these branches of the present United States forces resign at any time?

Answer: Yes; but "the right of an incumbent of military office toʻ resign his office at pleasure is subject to certain restrictions growing out of his military status. Thus, the resignation of an officer under charges need not be accepted. Similarly, the resignation of an officer in time of war may properly be refused. (See Ops. J. A. G. May 7, 1904, C. 16183.)

(4) Is there any form of commission requiring an officer to serve for a certain period after the war, either in the Army or the Reserve Corps? Answer: The answer to question No. 2 furnishes a reply to this question.

PAY AND ALLOWANCES: Compensation of Mail Orderlics for Delivering Special Delivery Letters.

Enlisted men detailed as mail orderlies are relieved from their usual military duties. They should not, therefore, be permitted to accept from the postal authorities compensation for delivering special delivery letters and packages at a camp.

311.1:

War Department. J. A. G. O., January 11, 1918.-To The Adjutant General.

1. The question here presented is whether enlisted men detailed as mail orderlies should be allowed to accept from the postal authorities compensation for delivering special delivery letters and packages at a camp, under the circumstances stated below.

2. The division commander, Camp Dix, N. J., in his communication herewith invites attention to the fact that the postal authorities at that camp are making payments in large amounts to various members of that command, properly detailed mail orderlies, for the delivery of special delivery letters and packages. He states that "during the last month" 8.404 packages and letters were so delivered, for which enlisted men were paid at the rate of 8 cents each, making a total sum of $672.32. He further states that the assistance given by the camp quartermaster to the local postal authorities for handling the mail at that post was authorized in a telegram from The Adjutant General of the Army granting authority to assist the post office until such time as the postal authorities were able to make other arrangements, and that under this authority there are at the present time one 3 ton truck and one 14 ton truck constantly employed in this work, together with the two drivers and six other men of the Quartermaster Corps. He questions the propriety of men in

the military service receiving extra compensation for this work, and suggests the arrangement of some method whereby this compensation should go to the Quartermaster Department, which furnishes the transportation facilities. He states that pending a decision in this matter, the postal authorities have been directed to suspend payment to the soldiers of any further sums for such services.

3. It may be proper for the post office authorities to pay the soldiers for their services in delivering special delivery letters and packages, provided this department permits the soldiers to accept such compensation. In view of the fact, however, that while the soldiers are detailed on this duty to assist the postal authorities they are relieved from their usual military duties, it is the view of this office that they should not be permitted to accept any further payments for this service. Nor do I see any reason why the money should be collected by the Quartermaster Department for the use of the Government inasmuch as it would be necessary to deposit it in the Treasury as "Miscellaneous receipts" under section 3618, Revised Statutes. The Post Office Department may just as well retain it.

APPROPRIATIONS: Travel Allowances of the Aviation Section, Signal Corps.

(1) Groups of enlisted men transferred for purposes of instruction are to be regarded as not traveling with troops within the meaning of section 9 of the act of July 24, 1917 (40 Stat. 243, 246), for the temporary increase of the Signal Corps; accordingly, the travel expenses in such cases are payable from the appropriation for the Aviation Section of the Signal Corps.

(2) The travel expenses of graduates of ground schools transferred from an aviation concentration camp to various flying schools for instruction in flying, such persons being candidates for commission, are payable from the appropriations for civilian military training provided for in the Army appropriation act of May 12, 1917 (40 Stat. 40, 69).

552.

War Department, J. A. G. O., January 11, 1918.-To the Acting Chief of Staff. 1. The opinion of this office is requested as to what appropriation should be charged with the expense connected with travel orders of the Aviation Section, Signal Corps, in cases of the nature indicated in the accompanying papers. The papers contain a memorandum from The Adjutant General to the Chief of Staff, dated April 26, 1917, stating that requests are being received in The Adjutant General's Office every few days from the Chief Signal Officer to have detachments of the Signal Corps pertaining to the aviation section moved from one State to another, and in which certain requests are cited as examples showing the movement of groups from 6 to 25 men from Camp Kelly, Tex., to various named industrial plants for courses of instruction of from 2 to 4 weeks. A subsequent request, dated December 20, 1917, from the office of the Chief Signal Officer was for the transferring of groups of graduates from the ground school at the aviation concentration camp, Garden City, Long Island, N. Y., to various named flying schools for instruction in flying.

2. As to the enlisted men referred to in The Adjutant General's memorandum of November 26, their movement appears to come within the authorization for traveling expenses provided for in section 9 of the act of July 24, 1917 (40 Stat. 243, 246), for the temporary increase of the Signal Corps, in the paragraph for paying and to otherwise providing for officers and enlisted men of the aviation section of the Reserve Corps called into active service, and for such enlisted men as may be enlisted in the aviation section of the Signal Corps under the provisions of the selective draft act of May 18, 1917 (40 Stat. 76), or any subsequent act, and which further provides— "for the payment of their traveling and other necessary expenses when not traveling with troops."

The clause "when not traveling with troops," as used in this connection is understood to mean when so traveling with a regular military movement. Ι am of opinion that groups of enlisted men transferred for purposes of instruction are to be regarded as not traveling with troops within the meaning of this statute, and that therefore the travel expenses in such cases are payable from the appropriation for the aviation section of the Signal Corps.

3. As to the transfer of graduates from the ground school at the aviation concentration camp, Garden City, Long Island, to various flying schools for

Instruction in flying, mentioned in the Chief Signal Officer's communication of December 20, it is understood that these were persons designated for training as candidates for commissions, and that when the travel was performed they had not yet been commissioned. If such be the case, they were still in the status of student officers or persons designated for training as officers, and the expenses of their travel would be payable from the appropriation for civilian military training provided for in the Army appropriation act, approved May 12, 1917 (40 Stat. 40, 69).

SELECTIVE DRAFT ACT: Non declarant Alien Failing to Claim Exemption. A nondeclarant citizen of Austria registered under the selective draft act (40 Stat. 76), stating upon his registration card that he was a citizen of Austria. He made no claim for exemption and appeared for medical examination, but when notified to present himself for transportation to camp he declined to do so and was arrested and brought to camp as a deserter. After his arrival in camp he was given a further opportunity to file affidavits in support of his claim, but failed to do so. Held, That such man was in the military service of the United States. Section 18 of the Rules and Regulations Prescribed by the President, Selective Service Regulations, provides (1) that a resident nondeclarant alien is entitled to claim exemption from the draft, (2) that such a claim must be made by the claimant or by some person in his behalf on a prepared form and filed with the local board before the seventh day after the mailing by the local board to him of the notice of his having been called for service, and (3) that the statement on the registration card of any such person that exemption is claimed shall not be construed or considered as the presentation of a claim for exemption. As pointed out in United States v. Finley, 245 Federal 871, alienage is a privilege which, like all other claims for exemption, must be asserted by the person claiming it in the manner prescribed in the regulations. It is immaterial that subsequent to the happening of the above recited facts war has been declared upon Austria, since the status of the accused was fixed on the date of his induction into the military service.

C. M. 108526.

War Department, J. A. G. O., January 11, 1918.

1. You have referred to this office the record of trial above referred to for information upon the points of law involved before you act upon the findings of the court.

2. It appears from the record in this case that the accused is a nondeclarant citizen of Austria and that he was registered under the selective draft law (40 Stat. 76), at Joliet, Ill. He stated upon his registration card that he was a citizen of Austria. He was drawn in accordance with the provisions of the draft and appeared for medical examination in response to the notice sent to him by the local board according to the draft regulations. He made no claim for exemption at that time, and when notified to present himself for transportation to Camp Dodge declined to do so and was arrested. After he arrived at Camp Dodge, Col. Girard Sturtevant talked to him and then notified him that he might yet prepare affidavits in support of his claim for exemption, but these affidavits were never obtained. He was tried for desertion and for two refusals to obey orders of his superior officer, under the sixty-fourth article of war. The only legal question involved is the question whether or not he was in the military service of the United States and subject to a court-martial.

3. The liability of the accused to military service must be determined from the provisions of the draft act itself and the regulations made thereunder by authority of the provisions of the act. Section 2 of the draft act, supra, p. 77, among other provisions contains the following:

"Such draft as herein provided shall be based upon liability to military service of all male citizens, or male persons not alien enemies who have declared their intention to become citizens, between the ages of twenty-one and thirty years, both inclusive, * *

Section 5, p. 80, contains the further provision:

*

"That all male persons between the ages of twenty-one and thirty, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President; * * and all persons so registered shall be and remain subject to draft into the forces hereby authorized, unless exempted or excused therefrom as in this act provided;

Section 4, p. 78, provides that the President shall make rules and regulations necessary to carry out the terms and provisions of this section. The rules and regulations prescribed by authority of section 4 of the draft act specify who may be exempt and the manner of obtaining the exemption privilege. Section 18 of the Rules and Regulations Prescribed by the President, Selective Service Regulations, sets out the persons who are entitled to the privilege, so far as material to this case, in subdivision (f), which is as follows:

"Any person who is a resident alien; that is, a citizen or subject of any foreign state or nation other than Germany who shall not have declared his intention to become a citizen of the United States."

Section 18 of the Rules and Regulations, supra, also prescribes the manner in which the claim shall be made as follows:

The claim to be exempted must be made by such person, or by some other person in respect of him, on a form prepared by the provost marshal general and furnished by the local boards for that purpose. Such claim must be filed with the local board which notified such person that he is called for service on or before the seventh day after the mailing by the local board of the notice required to be given such person of his having been called for service.” And specifically states further that

"The statement on the registration card of any such person that exemption is claimed shall not be construed or considered as the presentation of a claim for exemption."

The accused in this case seems to have relied upon the fact that his registration card stated that he was a citizen of Austria and put him without the provisions of the draft act and that of itself exempted him from liability for draft. It is not denied that all of the formalities necessary to bring the accused into the military service of the United States, had he been a citizen of the United States, have been observed in this case. The question involved in this case, the liability of a nondeclarant alien to military service under the draft act, was presented and fully argued and determined in the case of United States v. Finley from the Southern District of New York, November 3, 1917, and is reported in volume 245 Federal Reporter 871. In that case the petitioner was a much more ignorant and poorly informed person than the accused in this case, and there is much more question of the regularity upon the procedure of the district exemption board than this case presents. The court in that case very aptly pointed out that alienage was a privilege which might be asserted by the person claiming it in a manner prescribed by the regulations themselves, and that to say that the mere fact of alienage operated to excuse the person from the provisions of the draft would not be workable at all, as that would place upon the Government the necessity of making an independent search in every case of the naturalization records of all the State and Federal courts in the United States to determine whether or not the person involved was really a nondeclarant alien. In other words, it involved the proof of a negative by the Government. The law governing the draft as it applies to the accused in this case is very aptly stated in the last paragraph of the above cited case in the following language:

"The whole plan of the act is undoubtedly to require that those who claim exemption shall affirmatively present their claim to the appropriate body, so that that body can determine as a fact whether the person falls within the exempted classes. When, therefore, no such claim is presented, and the proceedings of the local and the district boards are regular in every respect, the court can not go outside of the proceedings of the boards to determine independently something which the act required should be determined by these boards."

It therefore appears that the accused was lawfully inducted into the military service of the United States on September 19, 1917, and from that date was, and now is, subject to military law of the United States. As pointed out in the above opinion:

"It is not strange that some who would have been entitled to exemption have failed to claim exemption, but the remedy, if any, in such case does not lie with the courts."

The fact that since the trial in this case a state of war has been declared to exist between the United States and Austria is immaterial to the inquiry in this case, as the status of the accused was fixed on September 19, 1917, and his right to exemption and his liability to military service are to be determined as of that date. It must, therefore, follow that the finding of the court in the case of Pvt. should be approved by the reviewing authority.

ENLISTMENT: Pay and Allowances; Fraudulent Enlistment; Loss of Right to Continuous Service Pay.

A soldier who had been dishonorably discharged by order of a general courtmartial thereafter enlisted in the California National Guard, at the time making to the officer who enlisted him a truthful statement of his previous service. He continued in the latter organization until August 5, 1917, on which date he was drafted as a member of the California National Guard. Held, That he was not guilty of fraudulent enlistment, since he made no wilful misrepresentation or concealment, and his enlistment was not void but voidable at the option of the Government. Held further, That since reenlistment and continuous service pay are contingent upon an honorable discharge at the termination of the last enlistment, and since a dishonorable discharge wiped out all benefits or liabilities coincident to previous military service, authority from the Secretary of War to the soldier to reenlist would not have the effect of restoring his former status, but would be a matter of grace in permitting him again to enter the service.

242.121.

War Department, J. A. G. O., January 12, 1918.-To The Adjutant General. 1. The Adjutant General refers to this office for remark a letter from the commanding officer supply company, One hundred and fifty-ninth Infantry, submitting the question: (a) Whether Elijah R. Tindle, Company I, One hundred and fifty-ninth Infantry, who was on or about August 15, 1915, discharged by order of general court-martial for fraudulent enlistment and afterwards on or about June 22, 1916, applied to the commanding officer Company I, Fifth California Infantry, for enlistment in that organization and made to the officer a truthful statement of his previous service and was enlisted in the Fifth California Infantry and later drafted as a member of that organization into the service of the United States, is guilty of fraudulent enlistment; and (b) whether authority from the Secretary of War for this soldier to reenlist would clear his past record and entitle him to prior service pay based on any part of his previous service.

2. Elijah R. Tindle, Company I, One hundred and fifty-ninth Infantry, enlisted in the One hundred and sixty-first Company, Coast Artillery Corps, on June 11, 1906; was discharged June 10, 1909, character "excellent"; reenlisted in the Second Field Artillery June 25, 1909; discharged June 12, 1912, as corporal, character "very good"; served in the Philippine Islands from July 2, 1910, to May 15, 1912; reenlisted in Marine Corps at San Francisco on or about June 25, 1912; served eight months in Cuba; discharged April 29, 1914, bad character discharge; reenlisted in Company A, Fifteenth Infantry, on or about June 15, 1914, at Jefferson Barracks, Mo.; sent to Tientsin, China; discharged pursuant to approved sentence by general court-martial on or about August 15, 1915, for fraudulent enlistment; sent to Disciplinary Barracks, Alcatraz Island; discharged on June 11, 1916; enlisted in Company I, Fifth California Infantry, June 22, 1916, for service on the Mexican border; mustered out of Federal service on October 7, 1916; reenlisted in Supply Company, Fifth California Infantry, National Guard, March 26, 1917. It is assumed that he continued a member of this organization until August 5, 1917, on which date he was drafted as a member of the National Guard of California into the service of the United States under the President's proclamation dated July 3, 1917.

Tindle's company commander now asks the Secretary of War for permission to reenlist him as required by paragraph 861, Army Regulations.

3. The questions presented will be answered as they are stated:

(a) Is Elijah R. Tindle, Company I, One hundred and fifty-ninth Infantry, guilty of fraudulent enlistment?

Section 69, national defense act, approved June 3, 1916 (39 Stat. 166, 200), Enlistments in the National Guard, provides, inter alia, "and the qualifications for enlistment shall be the same as those prescribed for admission to the Regular Army."

In view of this provision, the authority of the Secretary of War should have been obtained before Tindle was enlisted in the National Guard (see par. 861, Army Regulations), but the duty to obtain this permission devolved upon the company commander and not upon the applicant for enlistment. In the instant case Tindle made a frank and truthful statement as to his previous service, and the commanding officer of Company I, Fifth California Infantry, who enlisted him, appears to have had a telephone conversation with the commandant of the disciplinary barracks at Alcatraz Island and, without other authority, to have enlisted Tindle first on June 22, 1916, and again on March 26, 1917.