person in the military service of the United States on account of any act done under color of his office or status, or in respect to which he claims any right. title, or authority under any law of the United States respecting the military forces thereof, or under the law of war, such suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States in the district where the same is pending in the manner prescribed in section 33 of the Act entitled "An Act to codify, revise, and amend the laws relating to the judiciary," approved March 3, 1911, and the cause shall thereupon be entered on the docket of said district court and shall proceed therein as if the cause had been originally commenced in said district court and the same proceedings had been taken in such suit or prosecution in said district court as shall have been had therein in said State court prior to its removal, and said district court shall have full power to hear and determine said cause. Sec. 1. Ch. II, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1589. Same as in Code of 1916. Notes of Decisions See also notes to A. W. 74, ante. Operation of article.-A soldier who is charged with murder of a citizen of a State has no right to removal of the prosecution from the State court to a Federal court under this article where it is not contended that the act was done under color of his office or status. Funk v. State (Tex. 1919), 208 S. W. 509. Nor ordinarily where his trial by the State court will not seriously interfere with the enforcement of the laws of the United States or the operation of its Government. Castle v. Lewis (C. C. A. 1918), 254 Fed. 917. Under a petition alleging, in effect, that plaintiff was a member of a military organization hostile to the United States, the ob ject of which was to aid rebels in arms in the Southern States to overthrow the Government and that the defendants, as members of the State militia forces, had been directed to aid in arresting plaintiff, by the general commanding said militia forces in the State of Indiana upon whom a request for such aid had been made by the general commanding the military forces of the United States in said State, held that the petition entitled the defendants to have an action for assault and battery and false imprisonment based on these facts removed to the United States Circuit Court, under sec. 5, act of Mar. 3, 1863 (12 Stat. 756). McCormick v. Humphrey (1866), 27 Ind. 144. 476 (A. W. 118). Officers, separation from service. No officer shall be discharged or dismissed from the service except by order of the President or by sentence of a general court-martial; and in time of peace no officer shall be dismissed except in pursuance of the sentence of a general court-martial or in mitigation thereof; but the President may at any time drop from the rolls of the Army any officer who has been absent from duty three months without leave or who has been absent in confinement in a prison or penitentiary for three months after final conviction by a court of competent jurisdiction. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1590. Same as in Code of 1916, except that the word "general is inserted in the fourth line before the word "court-martial." The President was authorized to drop from the rolls of the Army for desertion any officer absent from duty three months without leave, etc., by R. S. 1229, and to drop from the rolls of the Army any officer absent from duty three months without leave or absent in confinement in a prison or penitentiary for more than three months after final conviction by a civil court of competent jurisdiction, by act of Jan. 19, 1911 (36 Stat. 894). Officers dismissed by sentence of a general court-martial formally approved can not be restored to the service except by reappointment. R. S. 1228, ante, 311. For right of an officer dismissed by the President to demand a trial, and effect of failure to convene a court-martial, see R. S. 1230, ante, 227, and notes thereto. For removal of disabilities incurred by reason of a pending charge of desertion, by reason of subsequent honorable service in the World War, see 155, ante. Notes of Decisions Construction of section in general. This section means that whereas, under act of July 17, 1862 (12 Stat. 596), as well as before its passage, the President alone was authorized to dismiss an Army or naval officer from the service for any cause which, in his judgment, either rendered such officer unsuitable for, or whose dismissal would promote, the public service, he alone shall not thereafter in time of peace exercise such power of dismissal, except in pursuance of a court-martial sentence to that effect, or in commutation thereof. It was not the purpose of the fifth section of the act of July 13, 1866 (embodied herein) to withdraw from the President the power, with the advice and consent of the Senate, to supersede an officer in the military or naval service by the appointment of another in his place. Blake v. U. S. (1880), 103 U. S. 227, 236. This article, relative to the dismissal of officers from the service, must be read in connection with 227, ante, requiring a court-martial to be convened on the application of any officer dismissed by order of the President, setting forth under oath that he has been wrongfully dismissed. Wallace v. U. S. (1922), 257 U. S. 541, affirming (1920), 55 Ct. Cl. 396. Petition for rehearing and motion to remand denied. (1922), 258 U. S. 296. The first part of R. S. 1229, which authorizes the President to drop from the rolls for desertion any officer absent from duty three months without leave, was taken from sec. 17, act of July 15, 1870 (16 Stat. 319). The part which prohibits the dismissal from service, in time of peace, of any of ficer, except pursuant to the sentence of a court-martial, was taken from sec. 5, act of July 13, 1866 (14 Stat. 92). Under sec. 12, act of July 17, 1862 (12 Stat. 596), the President had authority "to dismiss and discharge from the military service either in the Arnry, Navy, Marine Corps, or Volunteer force, in the United States service, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service." Sec. 12, act of Mar. 3, 1865 (13 Stat. 489), which was incorporated into R. S. 1230, ante, 227, gave an officer, dismissed by order of the President, the right to demand a courtmartial, etc. As to whether the second half of R. S. 1229, and ante, 227, operated so as to make a dismissal by the President for desertion, as authorized by the first half of this section, inoperative without a court-martial, the Supreme Court of the United States, in 1880, held that the last half of R. S. 1229 did not take away from the President the power, with the advice and consent of the Senate, to supersede an officer in the military or naval service by the appointment of some one in his place, and that said provision only restricted the power of the President so as to prohibit him from summarily, in time of peace, dismissing officers, whenever in his judgment the interest of the service required it to be done, without the concurrence of the Senate, except in pursuance of the sentence of a court-martial, or in commutation thereof. In this decision of the Supreme Court the question of the power of the President to dismiss for desertion was not involved. See Blake v. U. S. (1880), 103 U. S. 227, 235. See also, Keyes v. U. S. (1883), 109 U. S. 336; Mullan v. Same (1891), 140 U. S. 240; Fletcher v. Same (1891), 26 Ct. Cl. 541; Newton v. U. S. (1883), 18 Ct. Cl. 435; (1881) 17 Op. Atty. Gen. 13. In Fletcher v. U. S. (1891), 26 Ct. Cl. 541, it was held that R. S. 1229 was founded on the constitutional power of Congress" to make rules for the Government and regulation of the land and naval forces," and was a restriction upon the power of the President. Purpose of article.-The purpose of the act was, in times of peace, to suspend the broad power which the President exercised during the war. McElrath v. U. S. (1880), 102 U. S. 426, 438. It Was not the purpose of this section to withdraw from the President the power to supersede or remove an officer of the Army by the appointment, by and with the advice and consent of the Senate, of his Blake v. U. S. (1880), 103 successor. U. S. 227, 236. The word "commutation," used in R. S. 1229, is changed to "mitigation" in this article. Hartigan v. U. S. (1905), 196 U. S. 169. Dismissal in general.-A sentence of "dismissal" is legal. (1829) 2 Op. Atty. Gen. 287, 297; (1841) 3 Op. Atty. Gen, 631. The right of the President to dismiss an Army officer in time of war, so far as it may have been limited by 227, ante, is now unimpaired, as that section has been superseded by this article. Wallace v. U. S. (1920), 55 Ct. Cl. 396, affirmed (1922), 257 U. S. 541. Effect of dismissal.-An officer in the Army, who was dismissed from the service, by order of the President, did not regain his position by a subsequent revocation of that order. A vacancy was created which could be filled only by a new appointment. U. S. v. Corson (1885), 114 U. S. 619; (1842) 4 Op. Atty. Gen. 123; (1868) 12 id. 421; Beaty v. U. S. (1923), 58 Ct. Cl. 25; McElrath v. U. S. (1876), 12 Ct. Cl. 201, in which the Court of Claims aban. doned an earlier contrary view, expressed What constitutes a dismissal.-The acceptance of a resignation, and the appointment of an officer to fill the vacancy created by such resignation, is not a dismissal within the meaning of this section, Blake v. U. S. (1878), 14 Ct. Cl. 462. Where an Army officer was sentenced to dismissal from the service, and the sentence, without having been approved by the President, was carried into effect under orders of the War Department, held, that the subsequent recognition by the President of the vacancy by making an appointment or nomination of a person to fill the place of such officer, operated as a confirmation of the sentence and orders. (1879) 16 Op. Atty. Gen. 298. Leave with void conditions.-Accepting a a leave with the condition affixed that it be without pay does not amount to absence without leave. U. S. v. Andrews (1916), 240 U. S. 90. Determination of fact of desertion.-The jurisdiction to find the fact of desertion is vested in the President alone, and his decision can not be reviewed by the Court of Claims. Newton v. U. S. (1883), 18 Ct. Cl. 435. Officer appointed during Senate recess.An officer appointed and commissioned during a recess of the Senate comes within this section as to dismissal without courtmartial. O'Shea v. U. S. (1893), 28 Ct. Cl. 392. Cadets of Military Academy.-A cadet in the Military Academy at West Point is not an officer within the meaning of this section, and the President may dismiss him summarily, without the intervention of a court-martial. Hartigan v. U. S. (1905), 196 U. S. 169, affirming (1903), 38 Ct. Cl. 346. 477 (A. W. 119). Rank and precedence among Regulars, Militia, and Volunteers. That in time of war or public danger, when two or more officers of the same grade are on duty in the same field, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1591. Same as first sentence of art. 119, Code of 1916. The omitted portion read as follows: "In the absence of such assignment by the President, officers of the same grade shall rank and have precedence in the following order, without regard to date of rank or commission as between officers of different classes, namely: First, officers of the Regular Army and officers of the Marine Corps detached for service with the Army by order of the President; second, officers of forces drafted or called into service of the United States; and, third, officers of the volunteer forces: Provided, That officers of the Regular Army holding commissions in forces drafted or called into the service of the United States or in the volunteer forces shall rank and have precedence under said commissions as if they were commissions in the Regular Army; the rank of officers of the Regular Army under commissions in the National Guard as such shall not, for the purposes of this article, be held to antedate the acceptance of such officers into the service of the United States under said commissions." 478 (A. W. 120). Command when different corps or commands happen to join. When different corps or commands of the military forces of the United States happen to join or do duty together, the officer highest in rank of the line of the Regular Army, Marine Corps, forces drafted or called into the service of the United States, or Volunteers, there on duty, shall, subject to the provisions of the last preceding article, command the whole and give orders for what is needful in the service, unless otherwise directed by the President. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1592. Same as in Code of 1916. Notes of Decisions Officers of Marine Corps.-This section does not operate to give to officers of the Marine Corps any authority to exercise command in the Army, unless they have been detached for service with the Army by order of the President, and are still serving with the Army under that order. When any part of the Marine Corps is present ercise command over the Army any more than a naval officer can when some part of the Navy is cooperating with the Army; and the converse is true of Army officers cooperating with the Marine Corps. (1909) 28 Op. Atty. Gen. 15. with the Army and engaged in a common enterprise with it, without an order of the President detaching it for service with the Army, the case is one of cooperation and not of incorporation, and in such a case no officer of the Marine Corps can ex479 (A. W. 121). Complaints of wrongs.--Any officer or soldier who believes himself wronged by his commanding officer, and, upon due application to such commander, is refused redress, may complain to the general commanding in the locality where the officer against whom the complaint is made is stationed. The general shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, transmit to the Department of War a true statement of such complaint, with the proceedings had thereon. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1593. Same as in Code of 1916. 480. Execution of laws.-From and after the passage of this Act it shall not be lawful to employ any part of the Army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by Act of Congress; and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years, or by both such fine and imprisonment. Sec. 15, act of June 18, 1878 (20 Stat. 152); U. S. C. 10: 15. An act entitled "An Act to define and punish crimes in the District of Alaska and to provide a code of criminal procedure for the District," approved March third, eighteen hundred and ninety-nine, be, and is, amended by adding to section three hundred and sixty-three thereof the following: “Provided, section fifteen of an Act entitled 'An Act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes,' approved June eighteenth, eighteen hundred and seventyeight, shall not be construed to apply to the District of Alaska"; Sec. 29, act of June 6, 1900 (31 Stat. 330), amending sec. 363, act of March 3, 1899 (30 Stat. 1325). * A provision of this section, that no money appropriated by the act should be used to pay any expenses incurred in the employment of any troops in violation of the section, is omitted here, as temporary merely. Notes of Decisions Use of troops. The provisions of this | section do not abridge the power to use any part of the land or naval forces, or militia, for the purposes set forth in 481, post, relating to the enforcement of civil rights, (1890) 19 Op. Atty. Gen. 570. 51109-30- -22 Troops of the United States can not, without violating this section, be employed as a posse comitatus, to aid the United States marshal or his deputies in arresting certain persons in the State of Kentucky charged with robbing an officer of the Gov. |