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OFFICERS of the regular army under certain conditions may be retired. Except in certain specified cases, however, no officer shall be retired from active service without a full and fair hearing before an army retiring board, if, upon due summons, he demands such hearing." The right to such hearing he may receive or may forego by his own neglect. In neither case can he properly interpose an objection to a decision of the board, arrived at without such hearing or without his being personally presented before it.
Constitution and Composition of Retiring Boards. The Secretary of War, under direction of the President, is required, from time to time, to assemble an army Retiring Board consisting of not more than nine nor less than five officers, two-fifths of whom shall be selected from the medical corps. The Board, excepting the officers selected from the medical corps, shall be composed, as far as may be, of seniors in rank to the officer whose disability is inquired into.
A recorder is appointed to take down the testimony and record the proceedings, but is not a member of the Board.
Powers. A Retiring Board has to inquire into and
" At present officers may be retired by the President upon their own application after 30 years of service, or by reason of being 62 years of age, or of having served 45 years. ' $ 1253, Revised Statutes.
• Opinions J. A. G., p. 329. * & 1246, Revised Statutes.
determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office, and has such powers of a court-martial and of a court of inquiry, as may be necessary for that purpose. The Board, therefore, has power to summon and compel the attendance of witnesses; and to make use of depositions in the same manner and under the same restrictions as courts-martial.?
Duties. The province of the Board is simply to determine the facts touching the nature and occasion of the disability of the officers examined. It has no authority to entertain any charge of a military offense, or to try an issue of fact involving the moral status of the officer. Its deliberations must be directed to his physical and mental capacity to discharge the duties incident to his rank and office;
and its investigation is not limited to any particular period of time ; for the length of service of the officer, and the duration and continuance of his disability are all material to be considered.3
Preliminaries. Prior to the Board's assembling the invalid officer should appear before the medical members of the Board, and undergo a careful mental and physical examination.
It is well also, to save time, for the recorder to notify the invalid officer to prepare his complete military history in writing and be prepared to swear to it, and, if he has asked to be retired, to state fully in writing the nature and cause of his disability.
Mode of Procedure. The proceedings of a Retiring Board assimilate closely to those of a court of inquiry, although the Board generally examines the witnesses.
The Board having assembled, and the officer whose case is to be determined upon being present, the recorder reads the order convening the Board and asks the officer if he has any objection to any member present.
'S 1248, Revised Statutes.
* Opinions J. A. G., p. 330.
3 Ibid, p. 329.
Challenge. The right of challenge should always be accorded. The statutes as to the formation of the Board intend a fair hearing and, without this right, great injustice might at times result.
Oaths. The members of the Board are required to take an oath to discharge their duties honestly and impartially.
The recorder takes the same oath as the recorder of a court of inquiry.
The witnesses give their testimony on oath.?
Examination of Witnesses. The invalid officer is the first witness called and is asked to state his military history, and, if he has asked to be retired, the nature and occasion of his disability. If he has reduced his answers to writing he may sign them and submit them in that form, in which case they are read by the officer or recorder, and appended to the record. The Board should ask the officer if in his opinion, he is incapacitated for active field service, and such other questions as it may deem advisable.
The next witness should be the medical officers of the Board, in the order of their rank. They should be questioned as to their examination of the invalid officer. The results of this examination the medical officers should have reduced to writing, and signed, and they may submit it in that form, each officer referring to it as his answer when examined.
Other oral testimony, and documentary evidence from the Adjutant-General's office may then be introduced, with the right to the invalid officer of objecting to any improper evidence, and of cross-examining the witnesses called by the court.
g 1247, Revised Statutes.
: For forms of oaths, see Chap. VIII.
After the Board has finished, the officer may produce such evidence as he deems necessary, and make such statement to the court as he may desire.
. Benét gives the following rules as to the competency of evidence before Retiring Boards : 1
(1) In a manifest and unmistakable case, the Board may take the evidence of their own senses as to the physical condition of a party, who, for instance, cannot walk into the room, or get up, or sit down without assistance. But generally, and in all questionable cases, they are to ascertain his condition, as in all judicial proceedings, by evidence.
(2) That the conduct and services of an officer are evidence of his fitness to exercise his commission; and that the reports of courts of inquiry, and the judgment of courtsmartial, are competent evidence in inquiring into such conduct and services; and that the whole record of such court shall be admitted when required.
(3) That facts, by the testimony of officers, and their judgment on such facts witnessed by them, are also competent evidence in the same inquiry.
(4) That general professional reputation may also be given in evidence.
Finding. The Board is then closed for deliberation and is required to give an opinion as to whether the invalid officer is incapacitated for active service or not. When it finds an officer so incapacitated, it is further required to report the cause which, in its judgment, has produced his incapacity, and whether such cause resulted from an incident of service. This conclusion of the Board is merely an opinion to assist the President in deciding the case.
Record. A complete and separate record of each case is kept by the recorder. This is made up in the same
| Page 241.
* S 1249 Revised Statutes.
manner as the record of courts-martial proceedings. It must be authenticated by the president and recorder, and forwarded (through the Adjutant-General) to the Secretary of War.
A copy of the record may generally be obtained on application to the Secretary of War.
The Board sits with open or closed doors as they see fit, and are not limited as to the time of their sittings.
Revision. The Secretary of War is required to lay the proceedings and decision of the Board before the President for his personal examination, and approval or disapproval and orders in the case.
When a Retiring Board finds an officer is incapacitated for active service, and that his incapacity is the result of an incident of service, (and such decision is approved by the President) said officer shall be transferred to the retired list.
When the Board finds that an officer is incapacitated for active service, and that his incapacity is not the result of any incident of service, and its decision is approved by the President, the officer shall be retired from the service, or wholly retired from the service as the President may determine.3&4
The retirement in these cases is upon the actual rank of the officer held at the date of retirement.
While the above clauses are mandatory, there should be read in conjunction with them the acts of Congress, passed, or which may be passed, limiting the whole num
$ 1250 Revised Statutes. 9 Ibid., § 1251. 3 Ibid., S 1252. * The corresponding clauses, as recently proposed to Congress, provide that if it be found that the incapacity results neither from an incident of the service nor from any vicious habit of the officer, he shall be transferred to the retired list or be discharged, as the President, upon the recommendation of the Board, may direct. But if it be found that the officer's incapacity is the result of intemperance, idleness, or other vicious habits, he shall be dis. charged.