34.

DISCHARge for DISLOYALTY PRIOR TO ACTIVE SERVICE

Office IV E 2-Discipline VIII G.

2d Ind.

War Department, J. A. G. O., May 2, 1918-To the Adjutant General. 1. These papers relate to First Lieutenant Medical Reserve Corps, and present the question whether or not he may be brought to trial by court-martial for his alleged disloyal utterances before being ordered into active service. The preceding indorsement indicates that this officer was ordered to active duty April 24, 1918. The other papers in reference show that the alleged disloyal sentiments expressed by him were so expressed, if at all, prior to the time he was ordered into active service. Section 38 of the National Defense Act of June 3, 1916 (39 Stat. 166, 191 [Comp. St. 1916, § 1881b]), provides that

"Any officer who, while holding a commission in the Officers' Reserve Corps, shall be ordered to active service by the Secretary of War shall, from the time he shall be required by the terms of his order to obey same, be subject to the laws and regulations for the government of the Army of the United States, insofar as they are applicable to officers whose permanent retention in the military service is not contemplated."

The 2d Article of War (Comp. St. 1916, § 2308a) provides that— "The following persons are subject to these Articles and shall be understood as included in the term 'any person subject to military law' or 'persons subject to military law,' whenever used in these Articles; provided, that nothing contained in this Act, except such as specifically provided in Article II, subparagraph (c), shall be construed to apply to any person under the United States Naval jurisdiction unless otherwise specifically provided by law.

"(a) All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted or ordered into, or to duty for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same.'

It is the opinion of this office that Lieutenant.

referred to

in the accompanying papers, did not become subject to military law until ordered to active service, and may not be tried by court-martial for the acts committed, or disloyal utterances made, by him prior to that time.

2. It may be proper to remark that the papers in reference disclose some misunderstanding or confusion concerning this officer. In a communication under date of March 27, 1918, addressed to this office by the Chief, Military Intelligence Branch, Executive Division, it was stated that this officer was then on duty at Kelly Field, San Antonio, Texas, and in that communication there was a digest of two reports concerning him made to the Military Intelligence Branch under dates of February 21 and February 28, 1918. The communication and the digest of reports referred to indicated that the of

ficer had been guilty of conduct which might properly be made the basis of charges triable by court-martial, and further disclosed that the witnesses whose testimony must necessarily be used to support the charges lived in and around New York City. In this situation, this office, under date of April 4, 1918, recommended that the officer be sent to the Eastern Department for trial, and the report of the Military Intelligence Branch be referred to the Commanding General of the Eastern Department, with a view to the immediate formulation of charges against him. Obviously, if this officer was not ordered to active duty until April 24, 1918, the statement that he was on duty at Kelly Field on March 27, 1918, was an error and must have resulted from confusing him with some other officer.

3. If upon investigation it shall be found that the officer ordered to active duty on April 24, 1918, is the person referred to in the communication from the Military Intelligence Branch under date of March 27, 1918, and that prior to being ordered to active duty he was guilty of acts of disloyalty, or the expression of disloyal sentiments, such as enumerated in the communication of March 27, manifestly, he should not be retained in the service. It appears that he was appointed an officer in the Medical Reserve Corps on March 29, 1917, that he accepted the appointment on April 6 and took the oath as an officer April 7, 1917. The appointment was made under authority of section 37 of the National Defense Act (Comp. St. 1916, § 1881a), and the concluding paragraph of that section reads in part as follows:

"The commission of all officers of the Officers' Reserve Corps. shall be in force for a period of five years, unless sooner terminated in the discretion of the President."

The plain meaning of this language is that the President, at his discretion, may at any time and for any cause deemed sufficient by him, terminate the commission of an officer of the Reserve Corps. The power thus conferred upon the President has not been restricted by any subsequent legislation.

Paragraphs 41 and 42, of Special Regulations No. 43, pertaining to the Officers' Reserve Corps as amended by Changes No. 4 of said Special Regulations No. 43, W. D., January 17, 1918, authorize the convening of a board to examine into and report upon whether or not a member of the Officers' Reserve Corps is unfitted for his duties by reason of habits, lack of character, or inefficiency. The power conferred upon the President to terminate the commission of a member of the Officers' Reserve Corps is statutory and is not restricted or impaired by these regulations. The latter simply provide a machinery for the investigation into the character, conduct, qualifications, and efficiency of a reserve officer, as a matter of administrative convenience, and for the information of those who may be called upon to report upon these matters, or for the information of the President who may be called, in the exercise of his discretion, to terminate the commission of a reserve officer. The discretionary power of the President to terminate the commission of a reserve officer, under section 37 of the National Defense Act, taken in connection with the regulations which provide for the convening of a board to examine into and report upon the fitness of a reserve offi

cer to remain in the service, provide methods for the elimination of reserve officers, quite analogous to that provided by section 9 of the Selective Service Act for the elimination of officers appointed pursuant to the several sections and paragraphs of that act enumerated in said section 9. As in section 9, the President is given authority to discharge any officer for any cause, which in his judgment, would promote the public service, and additionally, provision is made for the convening of a board of officers to examine into and report upon the character, conduct and qualifications of officers therein referred to, so section 37 of the National Defense Act and the regulations pertaining to reserve officers which have been referred to, provide for like machinery for the elimination or the discharge of reserve officers.

4. In the present case, it is the opinion of this office that it would not be advisable to convene a board under the provisions of Paragraphs 41 and 42, and changes No. 4, Special Regulations No. 43; that the President at his discretion, notwithstanding such regulations, may terminate the commission of the officer in question for any cause, which, in his judgment, is sufficient, and that the commission of this officer should be terminated by executive action, under the authority of section 37 of the National Defense Act, should investigation prove that he has been guilty of the conduct charged against a reserve officer of like name in the communication of March 27, 1917, from the Chief, Military Intelligence Branch, Executive Division.

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

35. RE-ENLISTMENT STATUS
2d Ind.

War Department, J. A. G. O., May 7, 1918.-To the Adjutant General. 1. The Adjutant General submits to this office for remark a letter dated April 24, 1918, from Lieut. M. C. Custin, F. S. Ret., requesting information as to the status of an enlisted man of the Army of the United States, who has been heretofore discharged to accept a commission and who tenders himself for re-enlistment within three months after the termination of his commissioned service, but before the passage of the Act of Congress, approved March 30, 1918. (Pub. 105, 65th Cong.)

From the papers in reference it appears that David McCartney on November 26, 1917, was discharged to accept a commission; that he resigned February 28, 1918, and re-enlisted as a private March 18, 1918. It does not clearly appear from the papers what grade was held by him before being discharged, but it is assumed that he was a sergeant G. S. I., and was discharged to accept a commission in some component part of the Army of the United States.

2. The Act of Congress, approved March 30, 1918 (Pub. 115, 65th Cong.), provides:

"That any enlisted man of the Army of the United States, who has heretofore been, or shall hereafter be, discharged to accept a commission in any component part of the Army of the United States,

and who shall tender himself for enlistment within three months after the termination of his commissioned service, shall, subject to such examination for enlistment as is provided by law or regulation, be accepted and be restored to the grade held by him before being discharged to accept such commission; and in computing service for retirement and continuous-service pay he shall be credited with all time served with the forces of the United States, and his service shall be deemed continuous, notwithstanding the interruption thereof by the changes of status provided for herein."

It will be observed that the re-enlistment of McCartney, while being within three months after the termination of his commissioned service, occurred twelve days before the passage of the Act of Congress quoted above. At the time he re-enlisted, no law existed which permitted him to be restored to the grade he formerly held; and unless this statute is retroactive, he cannot be affected thereby.

"The general rule is that statutes will be construed to operate prospectively only, unless an intent to the contrary clearly appears. It is said that a law will not be given a retroactive operation unless that intention has been manifested by the most clear and unequivocal expression.' And in another case: "The rule is that statutes are prospective and will not be construed to have retroactive operation unless the language employed in the enactment is so clear it. will admit of no other construction.' * * * It is always presumed that statutes were intended to operate prospectively and all doubts are resolved in favor of such construction." Lewis' Suth. Stat. Const. § 642 (Ed. 1904).

3. The evident purpose of the statute is to encourage the speedy re-enlistment of a certain class of discharged men, and the language. employed indicates that it was intended to apply only to future reenlistments. No logical reason appears for expanding such a statute, by giving it retroactive force so as to include past re-enlistments. Such construction would not only be violative of the intent and purpose of the law, but is unwarranted by the language used. The words, "shall tender himself for re-enlistment" clearly do not refer to any past action. "The word shall in its common and ordinary usage, unless accompanied by qualifying words which show a contrary intent, always refers to the future." Jones v. Bank, 17 Colo. App. 79, 67 Pac. 177. No such qualifying words are used. McCartney re-enlisted as a private before this statute was passed; his status as to grade was fixed by the law in force at the time of such re-enlistment, and is not affected by this statute.

4. I am of the opinion that the Act of Congress, March 30, 1918 (Pub. 105, 65th Cong.), is not retroactive, and that David McCartney is not entitled, under his re-enlistment of March 18, 1918, to be restored to the grade held by him prior to his discharge to accept a commission.

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

36. EXTRA COMPENSATION FOR EXTRA WORK

An Army Field Clerk is an officer whose pay is fixed by law. He cannot be paid additional compensation for performing duties of another position unless the compensation thereof is fixed by law or regulation prior to the employment. There is no law or regulation fixing the compensation of reporter for a Board of Officers convened to investigate the capacity and qualifications of other officers for retention in the service. Consequently an Army Field Clerk can be paid no compensation for performing the duties of such reporter. Ops. J. A. G. 231.3, May 7, 1918.

4th Ind.

War Department, J. A. G. O., May 7, 1918.-To the Adjutant General.

1. The opinion of this office is requested whether the accompanying accounts in favor of Army Field Clerk James C. Nelson, Camp MacArthur, Waco, Texas, for services as a reporter for a Board of Officers convened to investigate the capacity, qualifiation, and fitness. of certain officers may be legally paid.

2. There are three accounts rendered in blank by Mr. Nelson for services as reporter in April, 1918, in connection with the investigation of three officers by a Board convened at Camp MacArthur, under the provisions of section 7, G. O. 76, W. D., 1917. As explanation for utilizing the services of Army Field Clerk Nelson, the following certificate is submitted by the Acting Adjutant at Camp MacArthur, dated April 8, 1918:

"I certify that the services of Field Clerk James C. Nelson, U. S. Army, could be spared from these Headquarters on April 3, 1918, for the purpose of acting as reporter before the Board of Officers convened pursuant to S. O. 74, April 2, 1918, these Headquarters. "I also certify that the transcribing of his shorthand notes did not in any way interfere with his work in this office, as same was done at night after hours."

The president of the Board for which the services were rendered made the following certificate:

"I certify that the services of a reporter were absolutely necessary before the Board of Officers convened pursuant to S. O. 74, Headquarters Camp MacArthur, Texas, April 2, 1918, and that the services of a civilian reporter could not be had."

The accounts are submitted to the Department for information as to what rate of compensation is payable for the services, and in this connection, the Quartermaster General refers to the opinion of this office of January 17, 1918, in which it was held that an Army Field Clerk may be employed in the capacity of a reporter for a courtmartial and receive compensation for such employment, provided it does not interfere with his regular duties. Reference may also be made to Digest Opinions, J. A. G., 1912-17, page 648, in which there. is reported a ruling to the same effect.

3. Whether in any particular case an officer or employee of the Government may be employed in an additional place or position and