third, from reserve officers, and from officers, warrant officers and enlisted men of the National Guard, members of the Enlisted Reserve Corps and graduates of technical institutions approved by the Secretary of War, all between the ages of twenty-one and thirty years. * * Sec. 24e, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 774). The above topic was treated by sec. 24, act of June 3, 1916 (39 Stat. 182), which bas been stricken out by sec. 24, act of June 4, 1920, above cited. At the same time the proviso of the act of Aug. 11, 1916 (39 Stat. 493), which established the eligibility of an honorably discharged cadet as a civilian candidate for a commission, was apparently rendered null and void. 2270. Graduated cadets commissioned second lieutenants.-That when any cadet of the United States Military Academy has gone through all its classes and received a regular diploma from the academic staff, he may be promoted and commissioned as a second lieutenant to any arm or corps of the Army in which there may be a vacancy and the duties of which he may have been judged competent to perform; and in case there shall not at the time be a vacancy in such arm or corps, he may, at the discretion of the President, be promoted and commissioned in it as an additional second lieutenant, with the usual pay and allowances of a second lieutenant, until a vacancy shall happen. Act of May 17, 1886 (24 Stat. 50). *** Cadets graduated from the United States Military Academy dur ing the present calendar year shall be commissioned as second lieutenants to date not earlier than July 2, 1920. Sec. 127a, added to the act of * June 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 786). See notes 2271, post. Notes of Decisions. Appointment of subsequent graduates, etc. The words "such arm or corps," in this section, refer to the arm, the duties of which the graduate has been judged competent to perform. The word " vacancy means a vacancy in the arm of the service in which the additional second lieutenant is then commissioned. Consequently, where a cadet has been appointed an additional second Heutenant in a designated arm of the service, he remains in such arm until transferred by order of the President, or upon his own request, and he can not interfere with the assignment of subsequent graduates to other arms of the service. Hence the Secretary of War may assign to cavalry or infantry recent gradu. ates, noncommissioned officers, and civilians, although "additional" second lieutenants remain in the engineers and artillery, and no vacancies exist in the last-named branches. (1891) 20 Op. Atty. Gen. 149; (1897) 21 Op. Atty Gen. 491. 2271. One additional second lieutenant only to each company. Only one supernumerary officer shall be attached to any company at the same time under the provisions of the two preceding sections. R. S. 1215. The "two preceding sections," mentioned in this section, were R. S. 1213, 1214, which have been superseded by subsequent provisions. The provision of this section may be applicable to promotions and appointments under such subsequent provisions. R. S. 1213 provided that any graduate of the Military Academy should be considered a candidate for a commission in any corps for whose duties he might be deemed competent, and, if there should be no vacancy in such corps, he might be attached to it as a supernumerary officer by brevet of second lieutenant, until a vacancy should happen. All vacancies in the grade of second lieutenant were required to be filled by appointment of such graduates, so long as any should remain in the service unassigned, by a provision of sec. 3, act of June 18, 1878 (20 Stat. 150). But the provisions of that section and of said act were superseded by 2270, ante. Act of Mar. 3, 1911 (36 Stat. 1045), and sec. 24, act of June 3, 1916 (39 Stat. 182), which was superseded in part by act of May 12, 1917 (40 Stat. 44), amended by sec. 2, act of July 9, 1918 (40 Stat. 890), and by sec. 24, act of June 4, 1920 (41 Stat. 774), ante, 2269. R. S. 1214 provided that noncommissioned officers might be examined for appointment as second lieutenants in any corps of the line for which they might be found qualified, and, if there should be no vacancy in any such corps, any noncommissioned officer so found qualified might be attached to it as a supernumerary officer by brevet of second lieutenant; and any vacancies in the grade of second lieutenant remaining after the appointment of graduates of the Military Academy were required to be filled by promotion of meritorious noncommissioned officers, by secs. 3, 4, act of June 18, 1878 (20 Stat. 150). But these provisions were superseded by the more comprehensive provisions of act of July 30, 1892, post, 2272-2275, sec. 5 of which act expressly repealed secs. 3 and 4 of act of June 18, 1878, providing for the promotion of meritorious noncommissioned officers. 2272. Enlisted men and volunteers eligible for appointment as second lieutenants. That the President be, and he is hereby, authorized to prescribe a system of examination of enlisted men of the Army, by such boards as may be established by him, to determine their fitness for promotion to the grade of second lieutenant: Provided, That all unmarried soldiers under thirty years of age, who are citizens of the United States, are physically sound, who have served honorably not less than two years in the Army, and who have borne a good moral character before and after enlistment, may compete for promotion under any system authorized by this act. Sec. 1, act of July 30, 1892 (27 Stat. 336). * Enlisted men of the Regular Army or volunteers may be appointed second lieutenants in the Regular Army to vacancies created by this act, provided that they shall have served one year under the same conditions now authorized by law for enlisted men of the Regular Army. Sec. 28, act of Feb. 2, 1901 (31 Stat. 756). But see 2269, ante. See notes to 2271, ante. Notes of Decisions. Enlisted men.-The President may assign enlisted men, who have passed the examination as candidates for commissions, to vacancies that may exist in any corps or arm of the service in which they have been commissioned, notwithstanding the fact that additional lieutenants remain in other corps unassigned. (1897) 21 Op. Atty. Gen. 491. 2273. Examining boards for selection of second lieutenants.-That the members and recorder of such boards as may be established by the President, under the provisions of the preceding section, shall be sworn in every case to discharge their duties honestly and faithfully; and the boards may examine witnesses, and take depositions, for which purposes they shall have such powers of a court of inquiry as may be necessary. Sec. 2, act of July 30, 1892 (27 Stat. 336). 2274. Examination of candidates for second lieutenancy. That the vacan cies in the grade of second lieutesant heretofore filled by the promotion of meritorious non-commissioned officers of the Army, under the provisions of section three of the act approved June eighteenth, eighteen hundred and seventyeight, shall be filled by the appointment of competitors favorably recommended under this act, in the order of merit established by the final examination. Each man who passes the final examination shall receive a certificate of eligibility, setting forth the subjects in which he is proficient and the especial grounds upon which the recommendation is based: Provided, That not more than two examinations shall be accorded to the same competitor. Sec. 3, act of July 30, 1892 (27 Stat. 336). Sec. 3 of act of June 18, 1878 (20 Stat. 150), mentioned in this section, was repealed by section 5 of this act. Notes of Decisions. Right to promotion.-A soldier who passes a successful examination and becomes the holder of a certificate is entitled to promotion as second lieutenant after the graduates of the Military Academy shall have been provided for and assigned. (1898) 22 Op. Atty. Gen. 57. Physical disability.-Although a soldier is primarily entitled to promotion by reason of a certificate of elegibility, yet if he is in fact disqualified to perform military service by reason of physical disability, this would operate to disbar him. The weight of evidence, however, is that he is physically qualified, and consequently he is entitled to the benefits accorded him in this act, unless he is shown to be physically disqualified by a legally constituted Army medical board. (1898) 22 Op. Atty. Gen. 91. Limiting time within which promotion may be made.-The Secretary of War has no authority to make a regulation limiting to a specified time, expiring on a given date, the right of promotion of an enlisted man who holds the certificate of eligibility provided by act July 30, 1892 (27 Stat. 336). (1898) 22 Op. Atty. Gen. 54. Age of candidate for promotion.-The fact that an eligible candidate for promotion has become 30 years of age does not vacate his right to promotion. (1898) 22 Op. Atty. Gen. 54. Second examination.-A regulation can not be promulgated requiring a successful candidate who holds a certificate of eligibility to undergo a second examination after a specified time, the proviso in this section relative to two examinations being intended to give a nonsuccessful competitor an opportunity to retrieve himself by a reexamination. (1898) 22 Op. Atty. Gen. 54. 2275. Vacation of certificate of eligibility for a second lieutenancy.-That all rights and privileges arising from a certificate of eligibility may be vacated by sentence of a court-martial, but no soldier, while holding the privileges of a certificate, shall be brought before a garrison or regimental court-martial or summary court. Sec. 4, act of July 30, 1892 (27 Stat. 336). Garrison and regimental courts-martial have been abolished by the act of Mar. 2, 1913 (37 Stat. 722). 2276. Age limit for candidates for commissions disregarded during the World War. That soldiers, during the present emergency, regardless of age and existing law and regulations, shall be eligible to receive commissions in the Army of the United States. They shall likewise be eligible to admission to officers' schools under such rules and regulations as may be adopted for entrance to such schools, but shall not be barred therefrom or discriminated against on account of age. Sec. 6, act of Aug. 31, 1918 (40 Stat. 956). The title of the act of Aug. 31, 1918, declares it to be generally amendatory of the act of May 18, 1917 (40 Stat. 76). It is emergency legislation and no longer operative. 2277. Emergency officers commissioned in the Regular Army.-Not less than one-half of the total number of vacancies caused by this Act, exclusive of those in the Medical Department and among chaplains, shall be filled by the appointment, to date from July 1, 1920, and subject to such examination as the President may prescribe, of persons other than officers of the Regular Army who served as officers of the United States Army at any time between April 6, 1917, and the date of the passage of this Act. A suitable number of such officers shall be appointed in each of the grades below that of brigadier general, according to their qualifications for such grade as may be determined by the board of general officers provided for in this section. No such person above the age of fifty years shall be appointed in a combatant branch, or above the age of fifty-eight in a noncombatant branch. No such person below the age of forty-eight years shall be appointed in the grade of colonel, or below the age of forty-five years in the grade of lieutenant colonel, or below the age of thirty. six years in the grade of major. Provided, That no officer shall be 1165 146345°-21-VOL 2- -16 appointed in any branch of the service under the provisions of this section except with the approval of the chief of such branch or officer acting as such. Sec. 24, act of June 3, 1916 (39 Stat. 182), as amended by sec. 24, act of June 4, 1920 (41 Stat. 771), 2278. Assignments to regiments.-That officers of grades in each arm of the service shall be assigned to regiments, and transferred from one regiment to another, as the interests of the service may require, by orders from the War Department, * Sec. 2, act of Oct. 1, 1890 (26 Stat. 562). * See par. 8, A. R. 1913; also notes to 2279, post. 2279. Promotion of officers.-That hereafter promotion to every grade in the Army below the rank of brigadier-general, throughout each arm, corps, or department of the service, shall, subject to the examination hereinafter provided for, be made according to seniority in the next lower grade of that arm, corps, or department: Sec. 1, act of Oct. 1, 1890 (26 Stat. 562). * * * and hereafter all vacancies occurring in the cavalry, artillery, and infantry above the grade of second lieutenant shall, subject to the examination now required by law, be filled by promotion according to seniority from the next lower grade in each arm. Sec. 2, act of Apr. 26, 1898 (30 Stat. 364), That vacancies in the grade of field officers and captains, created by this act, in the cavalry, artillery, and infantry shall be filled by promotion according to seniority in each branch, respectively. Sec. 28, act of Feb. 2, 1901 (31 Stat. 755). * * * * Vacancies remaining in grades above the lowest which are not filled by such appointments shall be filled by promotion to date from July 1, 1920, in accordance with the provisions of section 24c hereof. * * Sec. 24, act of June 3, 1916 (39 Stat. 182), as amended by sec. 24, act of June 4, 1920 (41 Stat. 771). Up to and including June 30, 1920, except as otherwise provided herein, promotions shall continue to be made in accordance with law existing prior to the passage of this Act, and on the basis of the number heretofore authorized for each grade and branch. On and after July 1, 1920, vacancies in grades below that of brigadier general shall be filled by the promotion of officers in the order in which they stand on the promotion list, without regard to the branches in which they are commissioned. Existing laws providing for the examination of officers for promotion are hereby repealed, except those relating to physical examination, which shall continue to be required for promotion to all grades below that of brigadier general, and except also those governing the examination of officers of the Medical, Dental, and Veterinary Corps. Officers of said three Corps shall be examined in accordance with laws governing examination of officers of the Medical Corps, second lieutenants of the Veterinary Corps being subject to the same provisions as first lieutenants. Sec. 24c, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 774). The first three acts set out above are apparently superseded by the act last cited. Subsequent provisions that no more permanent appointments should be made in several of the staff corps and departments, and that officers already holding permanent appointments therein should be promoted according to seniority in the several grades, and any vacancy which could not be filled by such promotion should be filled by detail from the line of the Army were made by secs. 26, 27, act of Feb. 2, 1901, post, 2336, 2337, 2341, 2424, 2288. Sec. 24, above, provided that emergency officers might be commissioned in the Regular Army. See 2277, ante. Notes of Decisions. Promotion and appointment distinguished. A promotion in the Army differs from an original appointment therein, in that the discretion of the President is confined, in cases of promotion, to certain specific persons, and appointment follows as a rule on vacancy, seniority, and a favorable examination. (1911) 29 Op. Atty. Gen. 254. See, also (1881) 17 Op. Atty. Gen. 196. Selection of senior officer.-The act of Oct. 1, 1890, does not make it obligatory upon the President to promote to a vacancy existing in the grade of lieutenant colonel the senior officer in the next lower grade, if, in his opinion. the record of the officer has been such as to indicate that he is disqualified for promotion. Gen. 177. 30 Op. Atty. No duty relating to the execution of the act of Oct. 1, 1890, requiring that promotion to every grade of the Army below the rank of brigadier general shall, subject to examination, be made according to seniority in the next lower grade, is imposed upon the Secretary of War and is subordinates, so as to warrant the issuance of an injunction restraining them from taking any action to procure the nomination by the President as Deputy Quartermaster General of any officer other than the one who seeks the injunctive relief and who claims to be entitled by reason of seniority to promotion to that office. Ray v. Garrison (Ct. App. D. C., 1914), 42 App. D. C. 34. More than one vacancy.-Where there are two or more offices of the same grade in a corps, each requiring a separate commission, on a vacancy occurring in such grade, the rules of promotion do not preclude the appointing power from determining to which of these offices the senior in the next grade below shall be appointed. An incumbent of one of them may be transferred by appointment to another which is vacant without prejudicing the rights of such senior, whose claim to promotion would be fully met by appointing him to either. (1882) 17 Op. Atty. Gen. 465. Death of nominee.-It is essential to the creation of the office of major that there should be an appointment by the President in addition to a nomination to, and consent by, the Senate. Hence a commission as major of cavalry can not be lawfully issued in the name of an officer of the Army whose death occurred after he was nominated to that grade by the President, but prior to the time the nomination was confirmed by the Senate. (1911) 29 Op. Atty. Gen. 254. Enlisted men.-The President may assign enlisted men, who have passed the examination as candidates for commissions, to vacancies that may exist in any corps or arm of the service in which they have been commissioned, notwithstanding that additional lieutenants remain in other corps unassigned. (1897) 21 Op. Atty. . Gen. 491. 2280. Classification of officers.-Immediately upon the passage of this Act, and in September of 1921 and every year thereafter, the President shall convene a board of not less than five general officers, which shall arrange all officers in two classes, namely: Class A, consisting of officers who should be retained in the service, and Class B, of officers who should not be retained in the service. Until otherwise finally classified, all officers shall be regarded as belonging to Class A, and shall be promoted according to the provisions of this Act to fill any vacancies which may occur prior to such final classification. Sec. 24b, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 773). * * ** 2281. Class B officers. No officer shall be finally classified in Class B until he shall have been given an opportunity to appear before a court of inquiry. In such court of inquiry he shall be furnished with a full copy of the official records upon which the proposed classification is based and shall be given an opportunity to present testimony in his own behalf. The record of such court of inquiry shall be forwarded to the final classification board for reconsideration of the case, and after such consideration the finding of said classification board shall be final and not subject to further revision except upon the order of the President. Sec. 24b, added to the act of * June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 773). |