COURT-MARTIAL.

1343a. System of courts-martial for when not in service of United States. Except in organizations in the service of the United States, court-martial in the National Guard shall be of three kinds, namely, general courts-martial, special courts-martial, and summary courtsmartial. They shall be constituted like, and have cognizance of the same subjects, and possess like powers, except as to punishments, as similar courts provided for by the laws and regulations governing the Army of the United States, and the proceedings of courts-martial of the National Guard shall follow the forms and modes of procedure prescribed for said similar courts. Sec. 102, id.

1343b. Same-Convening authority and jurisdiction of general courts-martial.-General courts-martial of the National Guard not in the service of the United States may be convened by orders of the President, or of the governors of the respective States and Territories, or by the commanding general of the National Guard of the District of Columbia, and such courts shall have the power to impose fines not exceeding $200; to sentence to forfeiture of pay and allowances; to a reprimand; to dismissal or dishonorable discharge from the service; to reduction of noncommissioned officers to the ranks; or any two or more of such punishments may be combined in the sentences imposed by such courts. Sec. 103, id.

1343c. Same-Convening authority and jurisdiction of special courts-martial.-In the National Guard, not in the service of the United States, the commanding officer of each garrison, fort, post, camp, or other place, brigade, regiment, detached battalion, or other detached command, may appoint special courts-martial for his command; but such special courts-martial may in any case be appointed by superior authority when by the latter deemed desirable. Special courts-martial shall have power to try any person subject to military law, except a commissioned officer, for any crime or offense made punishable by the military laws of the United States, and such special courts-martial shall have the same powers of punishment as do general courts-martial, except that fines imposed by such courts shall not exceed $100. Sec. 104, id.

1343d. Same-Convening authority and jurisdiction of summary courts. In the National Guard, not in the service of the United States, the commanding officer of each garrison, fort, post, or other place, regiment or corps, detached battalion, company, or other de

to respond thereto, be subject to the laws and regulations governing the Regular Army;" that their failure to respond renders them punishable under the Articles of War for disobeying the orders of the President for their mobilization, and, if the circumstances evidence an intent to abandon the Federal service, also for desertion; and that they may be charged with either offense, or both, and tried therefor by court-martial. (War Dept. Bull. 34, June 8, 1917.)

tachment of the National Guard may appoint for such place or command a summary court to consist of one officer, who shall have power to administer oaths and to try the enlisted men of such place or command for breaches of discipline and violations of laws governing such organizations; and said court, when satisfied of the guilt of such soldier, may impose fines not exceeding $25 for any single offense; may sentence noncommissioned officer to reduction to the ranks; may sentence to forfeiture of pay and allowances. The proceedings of such court shall be informal, and the minutes thereof shall be the same as prescribed for summary courts of the Army of the United States. Sec. 105, id.

1343e. Same-All courts-martial may impose confinement in lien of authorized fines.-All courts-martial of the National Guard, not in the service of the United States, including summary courts, shall have power to sentence to confinement in lieu of fines authorized to be imposed: Provided, That such sentences of confinement shall not exceed one day for each dollar of fine authorized. Sec. 106, id. 209. 1343f. Same-Approval of sentence of dismissal or dishonorable discharge. No sentence of dismissal from the service or dishonorable discharge, imposed by a National Guard court-martial, not in the service of the United States, shall be executed until approved by the governor of the State or Territory concerned, or by the commanding general of the National Guard of the District of Columbia. Sec. 107, id.

1343g. Same-Presidents of courts-martial and summary court officers empowered to issue warrants for arrest of accused and other necessary process.--In the National Guard, not in the service of the United States, presidents of courts-martial and summary court oflicers shall have power to issue warrants to arrest accused persons and to bring them before the court for trial whenever such persons shall have disobeyed an order in writing from the convening authority to appear before such court, a copy of the charge or charges having been delivered to the accused with such order, and to issue subpoenas and subpoenas duces tecum and to enforce by attachment attendance of witnesses and the production of books and papers, and to sentence for a refusal to be sworn or to answer as provided in actions before civil courts. Sec. 108, id.

1343h. Same-All processes and sentences of courts to be executed by prescribed civil.officers.—All processes and sentences of said courts shall be executed by such civil officers as may be prescribed by the laws of the several States and Territories, and in any State where no provision shall have been made for such action, and in the Territories and the District of Columbia, such processes and sentences shall be executed by a United States marshal or his duly appointed deputy,

and it shall be the duty of any United States marshal to execute all such processes and sentences and make return thereof to the officer issuing or imposing the same. Id.

ENLISTMENTS.

1344a. Period of.-Hereafter the period of enlistment in the National Guard shall be for six years, the first three years of which shall be in an active organization and the remaining three years in the National Guard Reserve, hereinafter provided for, and the qualifications for enlistment shall be the same as those prescribed for admission to the Regular Army.2 Sec. 69, id. 200.

1344b. Same-May be active during entire enlistment period, with right to reenlist.-In the National Guard the privilege of continuing in active service during the whole of an enlistment period and of

1 See paragraph 13250, ante.

2 Held, that those members so qualified who are in the active service of the United States under the President's call of June 18, 1916, which all did not include the National Guard Reserve, are entitled to be mustered out of the active service at the end of their active enlistment period of three years for the purpose of taking their place in the National Guard Reserve, and that they can not be held for further active service against their will, but that they have the privilege, under section 69 of the national defense act, of continuing in the active service during the whole of the enlistment period; and further, that they may, with the concurrence of the War Department, elect to continue in active service for such portion of the remaining three years during which the National Guard shall remain in active Federal service. (War Dept. Bull. 28, Aug. 18, 1916.)

Roach enlisted on April 24, 1914, in the Alabama National Guard for the period of three years. On June 29, 1916, he took the oath prescribed by section 70 of the national-defense act. On July 1, 1916, the company of which Roach was a member was mustered into the service of the United States. On April 24, 1917, Roach requested to be furloughed to the National Guard Reserve, but his papers were not properly made out. He continued to do duty until June 22, 1917, when his company commander again sent a request that Roach be furloughed to the Reserve. While awaiting action on the request the company commander permitted him to surrender all Government property, gave him transportation to his home, and directed him to go there and await receipt of papers evidencing his furlough. On July 26, 1917, Roach's request for furlough to the Reserve was returned from headquarters disapproved. Shortly thereafter, and prior to August 5, 1917, Roach was informed that his request for furlough had been denied and was ordered to report back to his company for service. This he declined to do, and had an altercation with the officer who ordered him to return to his company. He was placed in the Montgomery County jail under arrest pending his trial by military authorities on the charge of striking a superior officer. He secured a writ of habeas corpus. The return of the sheriff to the writ showed that he was holding Roach under the circumstances above stated.

Held, That under the provisions of the national-defense act an enlisted man is not automatically furloughed to the Reserve upon the expiration of his enlistment; that the acts of the company captain without the approval of the War Department could not operate as a discharge of Roach or as a furlough to the Reserve; and that Roach be remanded to the custody of the United States military authorities and his petition for discharge on habeas corpus be denied and dismissed. (Ex parte Roach (U. S. Dist. Ct. N. D. Ala., Aug. 14, 1917), 244 Fed. 625. War Dept. Bull. 67, Nov. 30, 1917.)

reenlisting in said service shall not be denied by reason of anything contained in this Act. Id.

1344c. Federal enlistment contract and oath.-Enlisted men in the National Guard of the several States, Territories, and the District of Columbia now serving under enlistment contracts which contain an obligation to defend the Constitution of the United States and to obey the orders of the President of the United States shall be recognized as members of the National Guard under the provisions of this Act for the unexpired portion of their present enlistment contracts. When any such enlistment contract does not contain such cbligation, the enlisted man shall not be recognized as a member of the National Guard until he shall have signed an enlistment contract and taken and subscribed to the following oath of enlistment, upon signing which credit shall be given for the period already served under the old enlistment contract: "I do hereby acknowledge to have

1Held, that the sense of the above statutory provision is that an enlisted man of the National Guard who elects to remain in service instead of being furloughed to the National Guard Reserve at the expiration of the first three-year period of his enlistment must make the election as to the whole of his enlistment period, and that the soldier in the instant case could not elect to remain in the active service only one year of the remaining three years of his enlistment period. (War Dept. Bull. 47, Nov. 16, 1916.)

A soldier in a National Guard organization was, through misinterpretation of the regulations governing the National Guard Reserve, continued in the active service after the expiration of his active enlistment, and it was asked whether he might be continued in the active service and be allowed pay for the time already served.

Held, that, while the term of enlistment prescribed by the national-defense act would seem to involve an automatic passing to the reserve at the expiration of the active period of enlistment, such a deduction can not be held to interfere with the soldier's privilege of continuing in the active service, in view of the proviso of section 69, national-defense act, reading: “that in the National Guard the privilege of continuing in active service during the whole of an enlistment period * shall not be denied by reason of anything contained in this act"; and that since the soldier referred to in the inquiry desired to continue in the active service, and actually did so, he may properly be regarded as having legally continued in active service, his service in that ca pacity having been accepted by proper authority. (War Dept. Bull. 34, June 8, 1917.)

*

Upon questions (a) whether soldiers could legally be discharged by reason of expiration of term of enlistment subsequent to the passage of the act of May 18, 1917, and (b) whether that act was effective to continue in force enlistments in the National Guard,

Held, that question (a) must be answered in the negative since the provision contained in section 7 of the act of May 18, 1917, is an inhibition against discharges unless ordered by the Secretary of War under his general power to grant discharges in the interest of the Government, and since the soldier's enlistment is prolonged for the period of the emergency by the provision, a discharge for the purpose of immediate enlistment would involve administrative labor and a multiplication of records without any resultant benefit to the Government.

Held further as to question (b), that since the provision quoted is applicable to "all enlistments," it is applicable to enlistments in the National Guard, they being enlistments in the National Guard of the United States as well as in the National Guard of a State; and the question is answered in the affirmative. (War Department Bull. 49, Aug. 22,1917.)

day of

voluntarily enlisted this 19, as a soldier in the National Guard of the United States and of the State of, for the period of three years in service and three years in the reserve, under the conditions prescribed by law, unless sooner discharged by proper authority. And I do solemnly swear that I will bear true faith and allegiance to the United States of America and to the State of -, and that I will serve them honestly and faithfully against all their enemies whomsoever, and that I will obey the orders of the President of the United States and of the governor of the State of and of the officers appointed over me according to law and the Rules and Articles of War."1 Sec. 70, id. 201.

1344d. Same-Applies to all subsequent enlistments.-Hereafter all men enlisting for service in the National Guard shall sign an enlistment contract and take and subscribe to the oath prescribed in the preceding section of this Act. Sec. 71, id.

1344e. Discharge, form of; may be issued in time of peace before expiration of term of enlistment.-An enlisted man discharged from service in the National Guard shall receive a discharge in writing in such form and with such classification as is or shall be prescribed for the Regular Army and in time of peace discharges may be given prior to the expiration of terms of enlistment under such regulations as the President may prescribe. Sec. 72, id.

In certain National Guard organizations responding to the President's call of March 27, 1917, were found members who had not qualified as national guardsmen under section 70 of the act of June 3, 1916.

Held, that inasmuch as the President's call of March 27, 1917, applied only to the National Guard the soldiers in question, as members of the Organized Militia, were under no obligation to respond thereto, and the fact that they appeared for service in the National Guard organizations did not operate to create any obligation on the part of the Government to pay or provide for them; and that therefore, while they still remained subject, as organized militiamen to be called into the Federal service as such, they should be dropped from the National Guard rolls for failure to qualify as national guardsmen. (War Dept. Bull. 34, June 8, 1917.)

Where an enlisted man of the Organized Militia called out in the national defense refused to take the Federal enlistment oath prescribed in the act of June 3, 1916, or to be formally mustered into the Federal service, but who was treated in all respects as a member of the organization in that service and was required to perform all the duties of a soldier from the date of his enlistment to the date of his muster out,

Held, that he was entitled to pay as a member of the organization during the period referred to.

(Comp. Treas., May 12, 1917; War Dept. Bull. July 19, 1917.)

(a) "Can a member of the National Guard be furloughed to the reserve before the end of the active service period?

(b) “Can a member of the National Guard, once furloughed before the end of the three-year term of active service, be removed from the reserve and be restored to the active list to serve the remainder of the three-year active term?” Held, that the word "service," as used in section 72, relates to the active three-year period, and that an enlisted man is entitled to a discharge in writing at the end of such period; that such discharge is not the final and absolute discharge so familiar to the Regular Army, but is a release from active service, remitting the soldier to the reserve. Held, as to (a) that since section 72 unqualifiedly authorizes discharge in time of peace, under regulations prescribed by the President, a National Guardsman may be discharged from active