Answer. Yes. If the department commander transmits the record to the division commander, the department commander should leave the action to be taken entirely to the judgment of the division commander. Question (5). "Has the department commander the right to approve the sentence and publish a general court-martial order in this case?" Answer. Yes. The record as it now stands in this particular case may be reviewed and acted upon by either "the officer appointing the court," or "the officer commanding for the time being." There are a number of cases of about the same status as the one you mention and this office has suggested that in order to avoid confusion, it is generally advisable to forward the record in all such cases to the "officer commanding for the time being," for review and action. In this connection your attention is also directed to paragraph 1, Gen,eral Orders, No. 96, War Department, 1917, which is as follows: "Paragraph 191, Army Regulations, is amended so as to exempt from the control of the department commander in all that pertains to administration, instruction, training, and discipline all of the organized tactical divisions of the National Guard and National Army after they have arrived at their divisional camps." Question (6). "Has the division commander the right to reconvene the court which was created by an order of the department commander and direct it to reconsider its sentence?" Answer. If all the members of the court, the judge advocate, and the accused are now within the jurisdiction of the division commander, that commander is, under the forty-sixth article of war, "the officer commanding for the time being." As such he is vested with all the power, in this particular case, that was possessed by the convening authority while the accused, the members of the court and the judge advocate were in the jurisdiction of the convening authority. (1 Winthrop, Military Law and Precedents, p. 689.) ENLISTMENT: Enlistment by Minor in Marine Corps; Jurisdiction of Civil Courts on Enlistment by Minor. No distinction should be made between the Army and the Marine Corps in the treatment of minors. The following rules have been established by the courts with regard to the discharge of a minor who enlisted without the written consent of his parent or guardian. A minor over 16 can not avoid his enlistment; his parent or guardian, to do so, must act seasonably, and before the minor has attained the age of 18 years. If the minor is being held for an offense against military law, the jurisdiction of the military authorities can not be ousted by the civil courts. (On the general subject, see note in 39 L. R. A., N. S. 454.) 220.836. JANUARY 24, 1918. [Memorandum for the Judge Advocate General.] 1. (a) Should any distinction be made between the Army and Marine Corps in the treatment of minors, and, (b) Under what circumstances should the department refuse to grant an application for the discharge of a minor under 18 years of age, who has enlisted without the written consent of his parent or guardian? 2. There is no statute which in terms applies to enlistments in the Marine Corps. Enlistments in the Marine Corps of the United States are not governed by statutes relating to enlistments in the Navy, but are governed by the statutory provisions relating to Army enlistments by virtue of paragraph 4151 of the regulations prescribed by the Secretary of the Navy, which reads: "The regulations for the recruiting service of the Army shall be applied to the recruiting service of the Marine Corps as far as practicable." In McCalla v. Facer, 144 Federal 61, it was held that the foregoing regulation served to make applicable to men enlisting in the Marine Corps the law governing enlistments in the Army. 3. Upon the question of the discharge of a minor from the military service who has enlisted without the written consent of his parent or guardian, the conclusions deducible from the decisions are: (a) A minor over 16 years of age is without power to avoid his enlistment, In re Morrissey, 137 United States 157; In re Grimley, 137 United States 147; In re Wall, 8 Fed. 85. (b) To avoid the enlistment of a minor; application by his parent or guardian must be seasonably made. (Ex parte Dostal, 243 Fed. 664; Ex parte Rush, 246 Fed. 172; Ex parte Dunakin, 202 Fed. 290; Ex parte Hubbard, 182 Fed. 76.) (c) If the application for his discharge is not made until the minor has attained the age of 18 years, his enlistment is validated by his service after attaining such age (Ex parte Dostal, supra; Ex parte Hubbard, supra). (d) If the minor is being held for an offense committed against military law, the jurisdiction of the military authorities in the premises can not be ousted by the civil court. (Ex. parte Dostal, supra; Dillingham v. Bocker, 163 Fed. 696; Ex parte Foley, 243 Fed. 470; In re Miller, 114 Fed. 838; Ex parte Dunakin, supra.) DISCIPLINE: Refusal of Soldier to Submit to Operation. Pursuant to paragraph 2, General Orders, No. 167, War Department, 1917, if a soldier in time of war refuses to submit to an operation or medical treatment, a board of three medical officers may be convened by the division commander or by the commander of a base hospital, and if such board advises that such operation or medical treatment is necessary to enable the soldier properly to perform his military duties, he may be tried by court-martial under the ninetysixth article of war for thereafter persisting in his refusal. It is not necessary that the board should certify that the operation is without risk to life. JANUARY 25, 1918. 707. From: The Judge Advocate General. Division. Subject: Refusal of enlisted men to submit to surgical operation. 1. You transmit an official opinion rendered by you on January 13, for the commanding general of the Thirty-ninth Division. In the opinion you state that the regulations require that in order to make an enlisted man who refuses to submit to an operation subject to court-martial, it is necessary that the surgeon certify that the operation is "without risk of life." The surgeons decline to make certificates of this nature, and insist on certifying that the operation is "without appreciable risk of life." You ask the opinion of this office as to whether or not a soldier can be tried by general court-martial for refusal to submit to an operation when the surgeon has certified that it is without appreciable risk of life. 2. Your attention is invited to paragraph 2 of General Orders, No. 167, War Department, 1917, which is as follows: "In time of war if a soldier refuses to submit to operations or medical treatment, he will be examined by a board of three medical officers convened by the division commander or commander of a base hospital. If, in the opinion of the board, the operation or medical treatment advised is necessary to enable the soldier to perform properly his military duties, and he persists in his refusal after being notified of the findings of the board, he may be tried by court-martial under the ninety-sixth article of war.” In your opinion referred to you make no reference to this order and it is presumed that you did not have it before you. This order eliminates the difficulty suggested in your opinion and prescribes the procedure necessary to give a court-martial jurisdiction of a soldier who refuses to submit to operation or medical treatment, which, in the opinion of the board, is necessary to enable him to perform properly his military duties. OFFICE: Relative Rank between Officers of Same Grade Appointed and Promoted on Same Day. Section 1219, Revised Statutes, providing that in fixing relative rank between officers of the same grade and date of appointment and commission, the time which each may have actually served as a commissioned officer of the United States, whether continuously or at different periods, shall be taken into account, applies only to the determination of relative rank between officers appointed on the same date and has no application to relative rank between. one officer appointed and one promoted on the same day. 210.724. JANUARY 25, 1918. 1. In your letter of January 1, you state that you have some difficulty in determining relative rank, under section 1219, Revised Statutes, and present a hypothetical case which will doubtless actually arise. A, B, and C, lieutenant colonels in the Regular Army, ranking in the order named and having had the years of service following their respective names, are appointed on the same day as follows: A, 26, temporary colonel, Regular Army. B, 27, colonel, National Army. C, 28, temporary colonel, Regular Army. 2. A and C being promoted to temporary vacancies in the Regular Army, are promoted by seniority and retain their former positions relative to each other. B, being appointed in the National Army, occupies the status of an original appointee, but under the one hundred and nineteenth article of war is entitled to take rank and have precedence under such commission as if he was commissioned in the Regular Army. Section 1219, Revised Statutes, reading in pertinent part "In fixing relative rank between officers of the same grade and date of appointment and commission, the time which each may have actually served as a commissioned officer of the United States, whether continuously or at different periods, shall be taken into account," applies only to the determination of relative rank between officers appointed on the same date and has no application to relative rank between one officer appointed and one promoted on the same day. 3. In the opinion of this office there is no statute effective to change the relative rank of officers under the situation assumed, and that they would continue to rank relatively as they did prior to their elevation in grade. DISCIPLINE: Reviewing Authority. 66 The commanding general of a division in this country is not regarded as a 'commanding general in the field," as used in rule 2, General Orders, No. 7, War Department, 1918. This is in conformity with the construction placed upon the same terms as used in article of war 48. 250.42. From: The Office of the Judge Advocate General. Division. JANUARY 25, 1918. Subject: Action of reviewing authority in cases of dishonorable discharge. 1. Replying to your letter of the 21st instant, I beg to advise you that the term " The commanding general in the field," as used in rule 2, General Orders, No. 7, War Department, January 17, 1918, is to be given the same meaning as has been given to the same term as used in the Articles of War. The commanding general of a division in this country is not regarded as a "commanding general in the field." OFFICE: Authority of Adjutant to Administer Oaths and Act as Notary. Under Articles of War 114 the adjutant of any command, whether such command be separate or present with its division, is authorized to administer oaths for purposes of military administration and to act as notary public in foreign places where the Army may be serving. 013.14. From: The Office of the Judge Advocate General. Division. JANUARY 25, 1918. Subject: Construction of the one hundred and fourteenth article of war. 1. The questions in your letter of January 14, 1918, are whether in Articles of War 114 the expression "The adjutant of any command" includes every regi ment or battalion adjutant whose organization is present with its division, and whether an adjutant so placed may act as a notary public in foreign places where the Army may be serving. Articles of War 8, 9, and 10 make distinctions based upon whether a command is separate, and show that the distinction was in the mind of the framers of the Articles of War and is to be understood as present only when named. In Articles of War 114 the distinction is not made. In Articles of War 114, persons are named, e. g., officers of summary courts, who, though officials of a small command, are habitually part of a large command; and yet it is not said that their power is to be exercised only when the small command is operating sep- arately. It follows that when that article of war uses the wide expression "the adjutant of any command" there is no reason for restricting the expression, and that the expression should be construed as giving notarial power to regiment or battalion adjutants even though the organization be present with its division. TERRITORIES: Citizenship of Person of Chinese Descent Born in Hawaiian Islands. A person of Chinese descent born in the Hawaiian Islands is eligible for enlistment in the Medical Enlisted Reserve Corps, since he is a citizen of the United States. If born since the annexation of the Hawaiian Islands, he is a native born citizen of the United States by virtue of the Fourteenth Amendment to the Constitution; if born prior thereto, he became a citizen under section 4 of the act of April 30, 1900 (31 Stat. 141). 210.11. War Department, J. A. G. O., January 25, 1918.-To the Surgeon General. 1. The question asked is whether a person of Chinese descent, born in the Hawaiian Islands, is eligible for enlistment in the Medical Enlisted Reserve Corps. 2. Such a person born in the Hawaiian Islands after their annexation is a native born citizen of the United States, according to the Fourteenth Amendment to the Constitution. 3. Under section 4 of the act of April 30, 1900 (31 Stat. 141), persons of Chinese descent born in the Hawaiian Islands prior to annexation became citizens of the United States. 4. For the reasons stated, the person in question is a citizen of the United States and has the same eligibility as any other citizen of the United States. APPROPRIATIONS: Government Agencies; Expense of Installation of Heating Equipment in Theater at Cantonment. The so called Liberty Theaters at the different cantonments having been erected from funds derived from the apportionment for post exchanges, etc., where it appears that such appropriation is exhausted, a camp quartermaster of a cantonment may legally be authorized to spend a limited sum for labor in the installation of a heating equipment in the Liberty Theater at such cantonment, subject to a provision that the amount so expended be repaid from the receipts of the theater as soon as possible. 123.61. War Department, J. A. G. O., January 26, 1918.-To The Adjutant General. 1. In the accompanying telegram from Camp Gordon request is made that the camp quartermaster be authorized to expend not to exceed $250 for labor in the installation of heating equipment in the rest room and offices of the Liberty Theater, and the Committee on Training Camp Activities, in the fourth indorsement, recommends that the authority requested be grantel"and that this amount be derived from the receipts of the theater as soon as possible, inasmuch as funds previously derived from the appropriation for such needs have been exhausted." 2. It is understood that the Liberty Theaters at the different cantonments have been erected at public expense from the appropriation for post exchanges, etc., and that inasmuch as the allotments for the construction of the theaters can not well be supplemented, the Committee on Training Camp Activities, which has charge of the theater activities at the cantonments, considers it advisable to use limited amounts of the receipts for desired improvements or extensions in cases where the allotment of public funds has become exhausted. There appears to be no legal objection to this or to granting the authority requested, in accordance with the recommendation of the Committee on Training Camp Activities. OFFICE: DISCHARGE: Acceptance of Commission by Enlisted Man Terminates his Enlistment. An enlisted man, having been commissioned as second lieutenant in the Infantry Reserve Corps, and assigned to active duty, was subsequently honorably discharged from the Infantry Reserve Corps. Held, That, since a man can not properly serve in a military force as an enlisted man and also as an officer superior to himself, the acceptance of such commission automatically discharged the soldier from the service as an enlisted man; that his honorable discharge from the Infantry Reserve Corps entirely terminated his connection with the military forces of the United States, and that he could not therefore revert to the status of an enlisted man. 220.8. War Department, J. A. G. O., January 26, 1918.-To The Adjutant General. 1. By the preceding indorsement there is referred for remark the status of one Michael Brothers from the time he entered the training camp in April, 1917, until he was honorably discharged as an officer January 8, 1918. As stated in the fifth indorsement the records show: "That Michael Brothers enlisted February 26, 1915, at Jefferson Barracks, Mo. The muster roll of Company E, Fortieth Infantry, for May and June, 1917, shows him as follows: 'Attending brigade training school from April 20, 1917, to May 12, 1917.' Muster roll of same company for November and December, 1917, shows him 'Private, rd. to pvt. from sgt. per G. C. M. O. 956, H. C. D., October 27, 1917.' "By direction of the President, Second Lieut. Michael Brothers, Infantry Reserve Corps, was honorably discharged from the Infantry Reserve Corps of the Army January 8, 1918." It is also stated in the second indorsement that Lieut. Brothers accepted this commission May 27, 1917, and forthwith entered upon the active discharge of the duties attaching to that office. In view of the foregoing facts the question is asked: "Does the action of January 8, 1918, discharging him from the Officers' Reserve Corps, discharge him from the Army as an enlisted man, as it does not appear that he has ever been discharged as an enlisted man?" 2. Upon the facts presented there arises the legal query whether there is anything inconsistent in an enlisted man accepting a commission and an assignment to active duty as an officer in the same army or corps. It is, of course, possible for an officer or enlisted man to accept without incurring an inconsistency a commission which merely subjects him to active duty upon the happening of a certain contingency. Concededly, however, a person can not legally occupy inconsistent positions or hold incompatible offices. Inconsistency as well as incompatibility exists where the nature and the holdings of the position or the offices are such as to render it improper for one person to attempt to fill both positions or to administer both offices. Efficient administration would require the elimination of one rather than a continuance of each at the expense of confusion if not obstruction. Incompatibility arises not from the physical inability of one person to perform the duties of both offices at the same time but from the relation of the two offices, as where one is subordinate and subject in some degree to the revisory powers of the other, or where the functions of two positions or offices are inherently inconsistent and repugnant. 3. Generally speaking, the requirements of military discipline and the funetions of military offices render the performance of the duties of two grades in the same force inherently inconsistent. That is, a man can not properly serve in a military force as an enlisted man and also as an officer superior to himself. Every military office is of necessity subject to the advisory powers of all officers of superior grades. The same characteristics adhere to the enlisted |