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than three-fourths of said whole number of officers shall be appointed or promoted until at least three-fourths of said increment of enlisted men shall have been enlisted. And all officers promoted in accordance with the terms of this proviso shall take rank, respectively, from the dates on which their promotions shall have become lawful under the terms of this proviso.

Act of May 12, 1917 (10 Stat. 44).

The action contemplated by this act has been taken. 2264. Temporary commissions in time of war.

In time of war any officer of the Regular Army may be appointed to higher temporary rank without vacating his permanent commission, such appointments in grades below that of brigadier general being made by the President alone, but all other appointments of officers in time of war shall be in the Officers' Reserve Corps. Sec. 127a, added to the act of June, 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 785).

2265. Temporary appointment of officers during the World War.–First. * Vacancies in the Regular Army created or caused by the addition of increments as herein authorized which can not be filled by promotion may be filled by temporary appointment for the period of the emergency or until replaced by permanent appointments or by provisional appointments made under the provisions of section twenty-three of the national defense Act, approved June third, nineteen hundred and sixteen, and hereafter provisional appointments under said section may be terminated whenever it is determined, in the manner prescribed by the President, that the officer has not the suitability and fitness requisite for permanent appointment.

Sec. 1, act of May 18, 1917 (10 Stat. 76). Third. *

to provide the necessary officers, line and staff, for said force and for organizations of the other forces hereby authorized, or by combining organizations of said other forces, by ordering members of the Officers' Reserve Corps to temporary duty in accordance with the provisions of section thirtyeight of the national defense Act approved June third, nineteen hundred and sixteen; by appointment from the Regular Army, the Officers' Reserve Corps, from those duly qualified and registered pursuant to section twenty-three of the Act of Congress approved January twenty-first, nineteen hundred and three (Thirty-second Statutes at Large, page seven hundred and seventy-five), from De menbers of the National Guard drafted into the service of the United States, from those who have been graduated from educational institutions at which military instruction is compulsory, or from those who have had honorable service in the Regular Army, the National Guard, or in the volunteer forces, or from the country at large; by assigning retired officers of the Regular Army to active duty with such force with their rank on the retired list and the full pay and allowances of their grade; or by the appointment of retired oflicers and enlisted men, active or retired, of the Regular Army as commissioned officers in such forces:

And prorided further, That oflicers with rank not above that of colonel shall be appointed by the President alone, and officers above that grade by the President by and with the advice and consent of the Senate:

* Sec. 1, act of May 18, 1917 (40 Stat. 77). That the appointments authorized and made as provided by the second, third, fourth, fifth, sixth, and seventh paragraphs of section one and by section eight of this Act, and the temporary appointments in the Regular Army authorized by the first paragraph of section one of this Act, shall be for the period of the

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emergency, unless sooner terminated by discharge or otherwise, * Sec 9, act of May 18, 1917 (40 Stat, 82).

The above is emergeney legislation and no longer operative.
But see 2268, post.
2266. Temporary commissions prior to Dec. 31, 1920.-

Whenever, prior to December 31, 1920, any person shall be nominated to the Senate for appointment to fill any office in the Regular Army provided for by this Act, the President alone is authorized to appoint such person temporarily in the United States Army in the grade pertaining to such Regular Army office, to have rank and pay from the same dates as if such appointment were in the Regular Army. Such temporary appointment shall terminate upon acceptance, after corifirmation, of the corresponding office in the Regular Army, or on March 4, 1921, if then still unconfirmed.

Sec. 1271, added to the act of June 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 786). 2267. Retention of emergency officers.

The President is authorized to retain temporarily in service, under their present commissions, such emergency officers as he may deem necessary, but the total number so remaining in service, other than those undergoing treatment for physical reconstruction, shall not at any time exceed the total number of vacancies then existing in the Regular Army. Any such officer may be discharged when his services are no longer required, and all such officers shall be discharged not later than December 31, 1920. All officers of the Regular Army holding commissions granted for the period of the existing emergency, in whatever grade, shall be discharged therefrom not later than June 30, 1920. The President is authorized and directed to retain in service disabled emergency officers until their treatment for physical reconstruction has reached a point where they will not be further benefited by retention in a inilitary hospital or in the military service. Sec. 127a, added to the act of June 3, 1916, by scc. 51, act of June 4, 1920 (41 Stat. 786).

That the President is authorized to retain temporarily in service, under their present commissions, or to discharge and recommission temporarily in lower grades, such emergency officers as he may deem necessary; but the total uumber of oficers on active duty, exclusive of retired ollicers and disabled emergency officers undergoing treatment for physical reconstruction, shall at no time exceed seventeen thousand eight hundred and twenty-three. Any energency oficer may be discharged when his services are no longer required, and all such officers shall be discharged not later than December 31, 1920, All oflicers of the Regular Army holding commissions granted for the period of the existing emergency, in whatever grade, shall be discharged therefrom not later than June 30, 1920. Act of June 5, 1920 (41 Stat. 977), making appropriations for the support of the Army.

2268. Provisional appointments.-All laws providing that certain appointments of oflicers shall be provisional for a period of time are hereby repealed. Sec. 23, act of June 3, 1916 (39 Stat. 181), as amended by sec. 23, act of June 4, 1920 (41 Stat. 771).

2269. Order of appointment of second lieutenants.-Except as otherwise herein provided, appointments shall be made in the grade of second lieutenant, first, fron graduates of the United States Military Academy; second, from warrant officers and enlisted men of the Regular Army between the ages of twenty-one and thirty years, who have had at least two years' service; and,

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third, from reserve officers, and from officers, warrant officers and enlisted men of the National Guard, members of the Enlisted Reserve Corps and graduates of technical institutions approved by the Secretary of War, all Letween the ages of twenty-one and thirty years.

Sec. 24e, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 774).

The above topic was treated by sec. 24, act of June 3, 1916 (39 Stat. 182), which bas been stricken out by sec. 24, act of June 4, 1920, above cited.

At the same time the proviso of the act of Aug. 11, 1916 (39 Stat. 493), which established the eligibility of an honorably discharged cadet as a civilian candidate for a commission, was apparently rendered null and void.

2270. Graduated cadets commissioned second lieutenants.—That when any cadet of the United States Military Academy has gone through all its classes and received a regular diploma from the academic staff, he may be promoter and commissioned as a second lieutenant to any arm or corps of the Army in which there may be a vacancy and the duties of which he may have been judged competent to perform; and in case there shall not at the time be a vacancy in such arm or corps, he may, at the discretion of the President, be promoted and commissioned in it as an additional second lieutenant, with the usual pay and allowances of a second lieutenant, until a vacancy shall happen. Act of May 17, 1886 (24 Stat. 50).

Cadets graduated from the United States Military Academy during the present calendar year shall be comurissioned as second lieutenants to date not earlier than July 2, 1920.

Sec. 127a, added to the act of June 3, 1916, by sec. 51, act of June h, 1920 (41 Stat. 786).

This act apparently supersedes R. S. 1213. See notes 2271, post,

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Notes of Decisions.

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Appointment of subsequent graduates, etc.--The words "such arm or corps," in this section, refer to the arm, the duties of which the graduate has been judged coinpetent to perform. The word vacancy means a vacancy in the arm of the service in which the additional second lieuten. ant is then commissioned. Consequently, where a cadet has been appointed an additional second lieutenant in a designated arm of the service, he remains in such arm until transferred by order of the

President, or upon his own request, and be can not interfere with the assignment of subsequent graduates to other arms of the service. Hence the Secretary of War may assign to cavalry or infantry recent gradu. ates, noncommissioned officers, and civilians, although “ additional ” second lieutenants remain in the engineers and artillery, and no vacancies exist in the last-named branches. (1891) 20 Op. Atty. Gen. 149; (1897) 21 Op. Atty Gen. 491.

2271. One additional second lieutenant only to each company.-Only one supernumerary officer shall be attached to any company at the same time under the provisions of the two preceding sections. R. S. 1215.

The "two preceding sections," mentioned in this section, were R. 8. 1213, 1214, which have been superseded by subsequent provisions. The provision of this section may be applicable to promotions and appointments under such subsequent provisions.

R. S. 1213 provided that any graduate of the Military Academy should be considered a candidate for a commission in any corps for whose duties he might be deemed competent, and, if there should be no vacancy in such corps, he might be attached to it as a supernumerary officer by brevet of second lieutenant, until a vacancy should happen. All vacancies in the grade of second lieutenant were required to be filled by appointment of such graduates, so long as any should remain in the service unassigned, by a provisica of sec. 3, act of June 18, 1878 (20 Stat. 150). But the provisions of that section and of said act were superseded by 2270, ante. Act of Mar. 3, 1911 (36 Stat. 1045), and sec. 24, act of June 3, 1916 (39 Stat. 182), which was superseded in part by act of

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May 12, 1917 (40 Stat. 44), amended by sec. 2, act of July 9, 1918 (40 Stat. 890), and by sec. 24, act of June 4, 1920 (41 Stat. 774), ante, 2269.

R. S. 1214 provided that noncommissioned oficers might be examined for appointment ds second lieutenants in any corps of the line for which they might be found qualified, and, if there should be no vacancy in any such corps, any noncommissioned officer so sound qualified might be attached to it as a supernumerary officer by brevet of second lieuienant; and any vacancies in the grade of second lieutenant remaining after the appointment of graduates of the Military Academy were required to be filled by promotion of meritorious noncommissioned officers, by secs. 3, 4, act of June 18, 1878 (20 Stat. 130). But these provisions were superseded by the more comprehensive provisions of act of July 30, 1892, post, 2272-2275, sec. 5 of which act expressly repealed secs. 3 and 4 of act of June 18, 1878, providing for the promotion of meritorious noncommissioned officers.

2272. Enlisted men and volunteers eligible for appointment as second lieutenants.--That the President be, and he is hereby, authorized to prescribe a system of examination of enlisted men of the Army, by such boards as may be established by him, to determine their fitness for promotion to the grade of second lieutenant: Provided, That all unmarried soldiers under thirty years of age, who are citizens of the United States, are physically sound, who have served honorably not less than two years in the Army, and who have borne a good moral character before and after enlistment, may compete for promotion under any system authorized by this act. Sec. 1, act of July 30, 1892 (27 Stat. 336).

Enlisted men f the Regular Army or volunteers may be appointed second lieutenants in the Regular Army to vacancies created by this act, provided that they shall have served one year under the same conditions now authorized by law for enlisted men of the Regular Army. Sec. 28, act of Feb. 2, 1901 (31 Stat. 756). But see 2269, ante. See notes to 2271, ante.

Notes of Decisions. Enlisted men.--The President may assign been commissioned, notwithstanding the enlisted men, who have passed the exami- fact that additional lieutenants remain in nation as candidates for commissions, to other corps unassigned, (1897) 21 Op. vacancies that may exist in any corps or Atty. Gen. 491. arm of the service in which they have

2273. Examining boards for selection of second lieutenants.—That the members and recorder of such boards as may be established by the President, under the provisions of the preceding section, shall be sworn in every case to discharge their duties honestly and faithfully; and the boards may examine witnesses, and take depositions, for which purposes they shall have such powers of a court of inquiry as may be necessary. Sec. 2, act of July 30, 1892 (27 Stat. 336).

2274. Examination of candidates for second lieutenancy.---That the vacancies in the grade of second lieutesant heretofore filled by the promotion of meritorious non-commissioned officers of the Army, under the provisions of section three of the act approved June eighteenth, eighteen hundred and seventyeight, shall be filled by the appointment of competitors favorably recommended under this act, in the order of merit established by the final examination. Each man who passes the final examination shall receive a certificate of eligibility, setting forth the subjects in which he is proficient and the especial grounds upon which the recommendation is based : Prorided, That not more than two examinations shall be accorded to the same competitor. Sec. 3, act of July 30, 1892 (27 Stat. 336).

Sec. 3 of act of June 18, 1878 (20 Stat. 130), mentioned in this section, was repealed by section 5 of this act.

Notes of Decisions.

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Right to promotion.—A soldier

who passes a successful examination and becomes the holder of a certificate is entitled to promotion as second lieutenant after the graduates of the Military Acadmy shall have been provided for and assigned. (1898) 22 Op. Atty. Gen. 57.

Physical disability. Although a soldier is primarily entitled to promotion by reason of a certificate of elegibility, yet if he is in fact disqualified to perform military service by reason of physical disability, this would operate to disbar him. The weight of evidence, however, is that he is physically qualified, and consequently he is entitled to the benefits accorded him in this act, unless he is shown to be physically disqualified by a legally constituted Army medical board. (1898) 22 Op. Atty. Gen. 91.

Limiting time within which promotion may be made.-The Secretary of War bas

no authority to make a regulation limiting to a specified time, expiring on a given date, the right of promotion of enlisted man who holds the certificate of eligibility provided by act July 30, 1892 (27 Stat. 336). (1898) 22 Op. Atty. Gen. 54.

Age of candidate for promotion.—The fact that an eligible candidate for promotion has become 30 years of age does not vacate his right to promotion, (1898) 22 Op. Atty. Gen. 51.

Second examination.-A regulation can not be promulgated requiring a successful candidate who holds a certificate of eligi. bility to undergo a second examination after a specified time, the proviso in this section relative to two examinations being intended to give a nonsuccessful competi. tor an opportunity to retrieve himself by

reexamination. (1898) 22 Op. Atty. Gen, 54.

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2275. Vacation of certificate of eligibility for a second lieutenancy.-That all rights and privileges arising from a certificate of eligibility may be vacated by sentence of a court-martial, but no soldier, while holding the privileges of a certificate, shall be brought before a garrison or regimental court-martial or summary court. Sec. 4, act of July 30, 1892 (27 Stat. 336).

Garrison and regimental courts-martial have been abolished by the act of Jar, 2, 1913 (37 Stat. 722).

2276. Age limit for candidates for commissions disregarded during the World War.--That soldiers, during the present emergency, regardless of age and existing law and regulations, shall be eligible to receive commissions in the Army of the United States. They shall likewise be eligible to admission to oflicers' schools under such rules and regulations as may be adopted for entrance to such schools, but shall not be barred therefrom or discriminated against on account of age. sec. 6, act of Aug. 31, 1918 (40 Stat, 956).

The title of the act of Aug. 31, 1918, declares it to be generally amendatory of the act of May 18, 1917 (40 Stat. 76). It is emergency legislation and no longer operative.

2277. Emergency officers commissioned in the Regular Army.-Not less than one-half of the total number of vacancies caused by this Act, exclusive of those in the Medical Department and among chaplains, shall be filled by the appointment, to date from July 1, 1920, and subject to such examination as the President may prescribe, of persons other than officers of the Regular Army who served as officers of the United States Army at any time between April 6, 1917, and the date of the passage of this Act. A suitable number of such officers shall be appointed in each of the grades below that of brigadier general, according to their qualifications for such grade as may be determined by the board of general officers provided for in this section. No such person above the age of fifty years shall be appointed in a combatant branch, or above the age of fifty-eight in a noncombatant branch. No such person below the age of forty-eight years shall be appointed in the grade of colonel, or below the age of forty-five years in the grade of lieutenant colonel, or below the age of thirty. six years in the grade of major.

Provided, That no oflicer shall be

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