EFFECT ON OUTSTANDING COMMISSION NOT YET ACCEPTED

57. A training camp student having passed an examination for major, Field Artillery Officer's Reserve Corps, was advised by The Adjutant General that the commission would issue later. He attended a second training camp and completed that course. No commission as major arrived and he was tendered a commission as captain August 15, 1917, which was accepted pending arrival of the commission as major. The commission as major was dated August 4, 1917, but was not received until April 20, 1918. The tender and acceptance of the commission as captain, after the commission as major was issued but before it became effective by acceptance, did not operate as a revocation of the tender of the commission as major. The latter commission is effective as of April 20, 1918, the date of acceptance. 210.4, Oct. 30, 1918.

NECESSITY FOR ACCEPTANCE

58. The Adjutant General sent to an appointee in Milwaukee a telegram. saying: "Appointment as major, Judge Advocate General's Reserve Corps, approved subject to satisfactory physical examination," and directed him to report to the nearest Army medical officer for examination and to mail a report thereof to The Adjutant General. Instead of doing that, the appointee, com. plying with a request of the office of the Judge Advocate General, came at once to Washington for duty. Afterwards he received from The Adjutant General this telegram: "You are appointed major, Judge Advocate General's Department. Wire acceptance giving full name and rank and report Judge Advocate General of the Army for duty in his office." The appointee then accepted the commission. Held, That the officer is not entitled to mileage from Milwaukee to Washington. He did not become an officer until he accepted the appointment, and, at that time, he was already in Washington. 245.6, Nov. 16, 1918.

On June 25, 1918, an applicant was recommended for a commission as captain; on June 26, 1918, he was appointed a captain; on July 10, 1918, his commission was mailed to him; on July 30, 1918, he sent inquiry concerning the mailing of the commission; on September 21, 1918, he was informed that it had already been mailed; on August 27, 1918, he received a printed extract of a special order announcing his appointment as captain; on September 16, 1918, he wired acceptance of the commission. He did not perform any of the duties of captain prior to the date of acceptance. He was not entitled to pay as a captain from July 15, to September 15, 1918. An acceptance, express or implied, is necessary to the vesting of an office. There was no acceptance prior to September 16, 1918. 241.19, Feb. 5, 1919.

OATH NOT REQUISITE

59. A commissioned officer in the United States Army, taken prisoner by the enemy, was appointed captain. He executed the oath of office before an officer not qualified under the provisions of R. S. 1757. A commissioned officer of the United States Army taken prisoner by the enemy continues in the same status as to eligibility to promotion that he had at the time of capture. He retains his technical status of duty and may be promoted while a prisoner of war in the hands of an enemy. The taking of an oath required by R. S. 1757 is not a condition precedent to the vestiture of the office or the right to exercise its functions. Even though the instrument is invalid as an oath of office, nevertheless it may be regarded and treated as an acceptance of the office and the officer

so appointed is thereby fully vested with the office and entitled to its emoluments. 210.1, Sept. 17, 1918; 210.2, Sept. 21, 1918.

Secs.

60. AGE LIMITS.

61. MORAL CHARACTER.

ELIGIBILITY

AGE LIMITS

60. A first lieutenant had not reached the maximum age limit for eligibility to appointment at the time when his nomination was prepared for submission to the Senate, but did reach the maximum age before his confirmation by the Senate. The appointment vested in him a right of office as soon as the appointing power duly designated him (subject to the consent of the Senate) as the person to fill the office. The due execution of his commission rendered his appointment complete and the commission evidencing it should be delivered. 210.1, Sept. 20, 1918.

In the absence of express legislative authority, the executive is without power to waive or otherwise modify the age limits provided by statute for the appointment to commissioned office in the Army. 210.11, Mar. 13, 1928.

66

MORAL CHARACTER

61. X was convicted of felony in a State court and sentenced to prison in 1914, pardoned unconditionally in 1916, commissioned as captain, Quartermaster Reserve Corps, in 1917. After investigation he was honorably discharged in 1918, presumably because of said conviction. He contends his pardon restores him to eligibility. R. S. 1118, prohibiting the muster or enlistment of felons does not apply to the appointment of officers. If it did apply, a pardon would not have the effect of affirmatively establishing eligibility. It is not a question of offense or pardon. The appointing power must be convinced of good moral character, and such a conviction might and probably would require closer examination into the character of the appointee; but a man once convicted of felony can not be conclusively presumed a felon forever. Such a harsh conclusion is contrary alike to human experience and every sense of natural justice. The officer has been discharged by the power that appointed him for reasons deemed sufficient to the appointing power. The discharge is good. The power that appoints and discharges may, however, in the exercise of the same discretion, reappoint. 342.1, Aug. 27, 1918.

FROM CADETS MILITARY ACADEMY

Secs.

62. IN GENERAL.

63. DISCHARGED FOR DISABILITY.

64. DISCHARGED FOR DEFICIENCY.

65. FOREIGN CADETS.

IN GENERAL

62. A graduate of the United States Military Academy has no right, as such, to a commission in any particular arm or corps of the Army. 210.1, Oct. 17,

A cadet, United States Military Academy, may not, upon graduation, avoid the completion of his obligation "to serve eight years unless sooner discharged" (R. S. 1321) by declining to accept appointment, duly made, to the office of second lieutenant, his acceptance being unnecessary to invest him with the office. 210.451, Aug. 26, 1920.

First classmen of the United States Military Academy found temporarily physically unfit for commissioned service may be graduated with their class and discharged without being commissioned. Such graduate cadets may be commissioned later, if they be found physically fit for military service within a reasonable time. 351.23, June 9, 1924.

DISCHARGED FOR DISABILITY

63. A United States Military Academy cadet who, on July 1, 1922, entered the class of 1926, and was granted sick leave May 5, 1923, to August 28, 1923, on which latter date he was to enter the class of 1927, was discharged on September 18, 1923, as a member of the class of 1927, for physical disability, though he had no association with that class. On question whether, if selected for appointment to the Regular Army after examination, he could be appointed before the graduation of the class of 1927, Held, That R. S. 1325 is not applicable; that the case is not within the reason of paragraph 12, AR 605–5, designed to obviate discontent among former classmates and hence that he should be regarded as not ineligible for appointment ahead of class of 1927 by reason of cadet service. 210.11, May 18, 1926.

DISCHARGED FOR DEFICIENCY

64. A former cadet, discharged for deficiency in mathematics, otherwise eligible for appointment as second lieutenant under section 24e, National Defense Act, as a member of the National Guard of New York, is not ineligible for commission in the Regular Army, under R. S. 1325, after members of his class have graduated and received their commissions. 210.11, July 22, 1921.

FOREIGN CADETS

65. A foreign cadet, admitted to the Military Academy by act of Congress, is given a certificate on completion of the course, but is not regarded as a graduate. Under par. 7, AR 605-5. candidates for appointment as officers must be male citizens of the United States between 21 and 30, and either (1) graduates of the Military Academy; (2) enlisted men of the Regular Army; or (3) officers or enlisted men of the Reserve Corps or National Guard, or graduates of approved technical schools. 210.11, Sept. 1, 1922.

FROM DISMISSED OFFICERS

66. An officer in the State military forces, temporarily called into Federal service, was thereafter tried and dismissed the service by court-martial, which sentence was confirmed by the President. Upon graduation from an ‹fficers' training school, he was subsequently recommissioned. R. S. 1228, proLibiting officers of the Army dismissed from the service by the sentence of a general court-martial from being restored to the military service, except by a reappointment eonfirmed by the Senate, applies only to the Regular Army organization, and has no application to the instant case. A former officer so

This

dismissed is not ineligible for 'appointment in the military service. appointment, not being above the rank of colonel, need not be confirmed by the Senate. 210.11, July 19, 1919.

On request for restoration to the service and retirement of an officer dismissed from the service by duly executed sentence of court-martial, Held, That in view of R. S. 1228, an officer so dismissed may not be restored to the military service except by reappointment confirmed by the Senate. 210.84, Dec. 16, 1929.

Secs.

FROM ENLISTED MEN AND WARRANT OFFICERS

67. SERVICE COUNTED.

68. STATUS CHANGED.

69. TIME OF EXAMINATION.

SERVICE COUNTED

67. A former officer of the Philippine Scouts, 29 years of age, inquired whether he would be eligible, upon enlisting in the Regular Army, to take the examination for a commission under that portion of section 24, National Defense Act, which provides that:

Enlisted men of the Regular Army who have completed one year's service with an organization may become candidates for vacancies in the grade of second lieutenant created or caused by the increases due to the operation of this act.

Held, That the service as an officer of the Philippine Scouts would confer eligibility within the meaning of the statute quoted, upon the reenlistment of the man. 6-250, Oct. 10, 1916.

See section 24e, National Defense Act, as amended by act of June 4, 1920, in pari materia, with statute cited.

1. Enlisted candidate for commission passed examination successfully and asked that his service at United States Military Academy be credited as part of his military service. His record was as follows: Admitted as cadet, discharged for deficiency in one study; reappointed upon recommendation of academic board and readmitted as cadet; found deficient in another study, turned back to next class, and given leave of absence without pay or allowances; before expiration of leave, resigned and resignation accepted.

2. Act of July 30, 1892 (27 Stat. 336), authorized enlisted men to compete for commissions as second lieutenant, who have served honorably not less than two years. Circular No. 7, A. G. O., March 20, 1900, published decision of the Secretary of War that, under the above statute," any kind of honorable service in the Army" or as "cadet at the United States Military Academy" would be included. Circular No. 11, A. G. O., 1901, published another decision of the Secretary that a cadet reported deficient in conduct or studies, and recommended to be discharged, who subsequently became a successful enlisted candidate for a commission would not be given an appointment as second lieutenant in advance of the date of graduation of the class to which he belonged, in contravention of R. S. 1325.

3. Revised Statutes, 1325, provided, in substance, that no cadet who is reported as deficient in either conduct or studies and recommended to be discharged from the academy shall be appointed to any place in the Army before his class shall have left the academy and received their commissions.

4. In conformity to the spirit, but not the letter, of the above statutes and decisions, Held: That an enlisted man who competed successfully in examina

tion for commission, and claimed credit for Army service as a cadet, whose service at the Military Academy was terminated by resignation instead of dismissal should not be commissioned in advance of his class. 210.11, Aug. 29, 1922.

Service during the World War in the United States Marine Corps while detached from service with the Army may be counted in determining the two years' service required by section 24e, National Defense Act (41 Stat. 774), to establish the eligibility of warrant officers and enlisted men for appointment as second lieutenants in the Regular Army, 210.11, Jan. 3, 1928.

On the question whether service as a reserve officer on active duty may be counted in determining the two years' service required by section 24e, National Defense Act (41 Stat. 774), to establish the eligibility of an enlisted man for appointment as second lieutenant in the Regular Army, Held, That as the Officers' Reserve Corps is a part of the Army of the United States (sec. 1, National Defense Act, 41 Stat. 759) and reserve officers are commissioned in the Army of the United States (sec. 38, added to the National Defense Act by sec. 3, act of June 6, 1924, 43 Stat. 470), it follows that a reserve officer on active duty is in active service in the Army of the United States, and such service may be counted in computing the two years' service required by law to render him eligible, as an enlisted man, for a commission in the Regular Army. 210.11, Apr. 14, 1928.

STATUS CHANGED

68. An enlisted man was granted permission by The Adjutant General to be examined for the office of provisional second lieutenant in the Regular Army. Before the date of the examination he accepted a commission as temporary second lieutenant. He subsequently took and passed the examination. Held, That the qualifications required of candidates for the office of provisional second lieutenant are qualifications for entrance into competition; consequently, the fact that an enlisted man ceased to be such after having been designated to take the examination, does not affect his eligibility therefor. 210.1, Mar, 1, 1918.

TIME OF EXAMINATION

69. The condition precedent in section 24e, National Defense Act, as to enlisted service for warrant officers and enlisted men appointed second lieutenants is that they shall have had at least two years of such service at time of appointment-not at time of examination, date of rank, or date of final meeting of selecting board. Hence a man enlisted September 2, 1924, examined June 21-26, 1926, may be appointed after September 1, 1926, with rank from June 13, 1926. (Par. 8, AR 605-5.) 210.11, Sept. 10, 1926.

FROM FORMER OR RETIRED OFFICERS

70. In view of the fact that the authority to carry officers as additional numbers, contained in section 24e and par. 2, section 127a, National Defense Act, has been withdrawn by the acts of June 30, 1922 (42 Stat. 721), and September 14, 1922 (42 Stat. 840), fixing absolute limits, and since all vacancies are required to be filled by promotion under section 24c, National Defense Act, it is Held, That the authority to reappoint former or retired officers contained in section 24e, National Defense Act, has been repealed. 210.104, Dec. 20, 1922. As to place on promotion list of former officers reappointed to the Army by special act, see 499, post.