Sections

CHAPTER 1

ARMY OF THE UNITED STATES

1. LIABILITY TO MILITARY SERVICE.

2-21. REGULAR ARMY.

22-30. NATIONAL GUARD IN FEDERAL SERVICE. 31-35. ORGANIZED RESERVES.

LIABILITY TO MILITARY SERVICE

1. Members of well-recognized religious sects whose creed or principles forbid the participation in war are exempt only from combatant service, not from noncombatant military service. Service with the American Red Cross or manual labor performed upon farms or gardens operated for the benefit of the Army on land leased or occupied for military purposes is not military service, and can not be designated by the President as noncombatant military service, assignment to which will relieve conscientious objectors from military service. 34-442.1, Sept. 18, 1917.

From the point of view of International Law the following rules as to liability of aliens to compulsory military service are well established: (a) An alien in the diplomatic service is exempt, for theoretically he is not in the country at all. Diplomatic privileges, however, do not extend to consuls, as they are not diplomatic officers, but merely representatives for commercial purposes. (b) An alien enemy can not be compelled to serve, for otherwise he would be compelled to fight against his own country. This is recognized by the Selective Draft Act (40 Stat. 76). (c) The alien enemy can waive his exemption from draft; and if he waives his exemption, either expressly or silently, his retention in the service is lawful. (d) An alien friend who is simply passing through a country can not be compelled to serve, otherwise than for the temporary purpose of meeting the extraordinary emergency of an attack by banditti and the like, for otherwise commercial intercourse would be clogged and a person might be compelled to aid the mere ambitions of a country in which he is a stranger. (e) The transitory alien friend can waive his exemption. (f) An alien friend who is domiciled—that is to say, who is a permanent resident-can be compelled to serve, for otherwise he would receive the benefits of a country's existence and government without sharing the burdens. (g) Declaration of intention to become a citizen, though it does not make a person a citizen or even partially a citizen, is excellent evidence that he is properly to be considered a permanent resident. (h) All of the foregoing can be changed by treaty.

The Hague Conference of 1907, in its Final Act, said: "The Conference expresses the opinion that the powers should regulate, by special Treaties, the position, as regards military charges, of foreigners residing within their territories." (Malloy's Treaties, vol. 2, p. 2379.) That expression of the Hague

1

Conference is sufficient proof that, in the absence of treaty, International Law will recognize an alien's liability to some military service.

The United States has treaties with the following countries, granting exemption from military service to all citizens of said countries: (a) Switzerland, by Treaty of 1850 (2 Malloy's Treaties, 1762). (b) Spain, by Treaty of 1902 (2 Malloy, 1701). (c) Argentina, by Treaty of 1853 (1 Malloy, 20, Article X.) (d) Costa Rica, by Treaty of 1851 (1 Malloy, 341, Article IX). (e) Honduras, by Treaty of 1864 (1 Malloy, 952, Article IX). (f) Italy, by Treaty of 1871 (1 Malloy, 969, Article III). (g) Japan, by Treaty of 1911 (3 Malloy, 77, Article I). (h) Paraguay, by Treaty of 1859 (2 Malloy, 1364, Article XI). (i) Servia, by Treaty of 1881 (2 Malloy, 1612, Article IV).

By Consular Convention of 1910 with Sweden (3 Malloy, 112, Article III), and by similar agreement of 1826, with Denmark (1 Malloy, 373, Article X), consular officers only are exempt from compulsory military service.

Treaties containing the so-called most-favored-nation clause generally give no exemption from military service. The common form of that clause is restricted to commercial privileges. The Treaty of 1856 with Persia (2 Malloy, 1371, Article III) contains an unusual form of most-favored-nation clause which probably covers exemption from military service as well as commercial privileges.

The statutes of the United States (Act of April 22, 1898, 30 Stat. 361, and Act of May 18, 1917, 40 Stat. 76) subject to compulsory military service all male persons of foreign birth, who have declared their intention to become citizens of the United States, who are within specified ages, except alien enemies. 220.8, May 9, 1918.

While section 1, act of April 22, 1898 (30 Stat. 361), as permanent legislation, includes aliens who have declared their intention of becoming United States citizens as part of the national forces of the United States and liable to perform military duty, the protection of an alien from liability to such duty is complete unless he removes himself therefrom by the voluntary act of "declaring his intention" in due form to become a United States citizen. No compulsory military service is required of any person in the United States, citizen or alien, except during periods of emergency specifically declared by Congress. 336, July 16, 1924.

Where a friendly nondeclarant alien not only failed to claim exemption from compulsory military service, but expressly waived in writing his right thereto, he in effect volunteered to enter our military service, and is not entitled to indemnity for such service as in contravention of treaty with Spain of April 20, 1903, which provides that no compulsory military service shall be required by either country from nationals of the other. 014.31, Mar. 5, 1928.

Secs.

REGULAR ARMY

2-6. FUNCTIONS.

7-11. STRENGTH.

12. UNAUTHORIZED USE OF MILITARY DESIGNATIONS. 13-21. USE OF ARMY.

FUNCTIONS

Secs.

2. CORPS OF ENGINEERS.

3. INSPECTOR GENERAL'S DEPARTMENT.

4. INSULAR AFFAIRS, BUREAU OF.

5. JUDGE ADVOCATE GENERAL'S DEPARTMENT.

6. MEDICAL DEPARTMENT.

CORPS OF ENGINEERS

2. Question: Whether the Secretary of War has authority to prescribe that the construction of buildings and structures required by the Army in the theater of operations and the construction, operation, and maintenance of railways therein shall be assigned to the Corps of Engineers?

Section 9, act of June 4, 1920, is intended to establish, from motives of economy, a central purchasing agency and, for administrative purposes, to reestablish in the Quartermaster Corps certain activities which during the war had been removed therefrom in the application of the Overman Act of May 20, 1918 (40 Stat. 556). Section 9 should not be construed as extending the field of activity of the Quartermaster Corps to include functions which, under the provisions of the act of June 3, 1916, or prior laws or regulations, were assigned to other services, corps, or departments. The provisions of section 11, act of June 4, 1920, show the intention of Congress to reestablish in the Corps of Engineers the functions exercised by that corps, in accordance with existing law and regulations, prior to the passage of the Overman Act.

Act of June 4, 1920, taken as a whole, indicates an unmistakable desire of Congress to return the administrative function of the Army to the pre-war basis, except where Congress has clearly intended to take away certain administrative functions, and entrust them to newly created agencies, as in the case of the Finance Department. There is no indication in the act of an intention to limit the exercise of discretion of the President, as constitutional Commander in Chief of the Army, or of the Secretary of War, as his authorized representative, in the proper employment of the component parts of the Army in matters properly within the field of such discretion; nor does the act indicate any intention to change the technical or tactical functions previously exercised in the theater of operations by the Corps of Engineers, in accordance with existing law and regulations.

The question must be answered, therefore, that the act of June 4, 1920, does not preclude the Secretary of War, acting for the President, from prescribing that certain functions, such as the construction of buildings and structures required by the Army in the theater of operations and which must be performed therein, as well as the construction, operation, and maintenance of railways therein, shall be assigned to the Corps of Engineers. 320, July 24, 1922.