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ized by law shall be raised forth with to that strength, and shall be maintained as nearly as possible thereat so long as war, or the imminence of war, shall continue. Sec. 24, act of June 3, 1916 (39 Stat. 182).

331c1. Immediately raise, organize, officer, and equip all increments at maximum strength.-In view of the existing emergency, which demands the raising of troops in addition to those now available, the President be, and he is hereby, authorized

Immediately to raise, organize, officer, and equip all or such number of increments of the Regular Army provided by the national defense Act approved June third, nineteen hundred and sixteen, or such parts thereof as he may deem necessary; to raise all organizations of the Regular Army, including those added by such increments, to the maximum enlisted strength authorized by law. Par. 1, Sec. 1, Act of May 18, 1917 (40 Stat. 76).

(For provision authorizing the raising of the enlisted men necessary to maintain the organizations of the Regular Army at their maximum legal strength by voluntary enlistment or by selective draft, see paragraph 1037, post.)

331c1. Same-Filling of vacancies caused by increase; termination of provisional appointments.—Vacancies in the Regular Army created or caused by the addition of increments as herein authorized which can not be filled by promotion may be filled by temporary appointment for the period of the emergency or until replaced by permanent appointments or by provisional appointments made under the provisions of section twenty-three of the national defense Act, approved June third, nineteen hundred and sixteen, and hereafter provisional appointments under said section may be terminated whenever it is determined, in the manner prescribed by the President, that the officer has not the suitability and fitness requisite for permanent appointment.. Id.

(For par. 2 of this section, see pars. 1339p and 13399, post.)

The President has complete power to discharge any temporary officer of the Regular Army holding appointment under section 1 of the act of Niay 18, 1917. Commanding generals may appoint military boards to pass upon the capacity and fitness of such officer, whose findings may be laid before the President for such action as he sees fit. (Secs. 1 and 9 of act of May 18, 1917; subpar. 2 of par. 7, G. 0. 76, C. s.) But the President may discharge provisional officers appointed under section 23 of the national-defense act of June 3, 1916, only after due investigation, such as is provided for in paragraph 7, G. 0. 76, C. S. (War Dept. Bull. 72, Dec. 24, 1917.)

2 Paragraph 918a, post, or 39 Stat. 181.

3 L'ucer section 1 of the selective draft act the President is given power to terminate provisional appointments whenever it is determined that the officer is unfit for permanent appointment. G. 0. 76, W. D., June 26, 1917, lays down the rules prescribed by the President for determining the fitness of such -officers. The procedure therein prescribed must be followed. (War Dept. Bul. 72, Dec. 24, 1917.)

The term “temporary promotion," as used in the National Army act of May 18, 1917, and in section 114, national-defense act of June 3, 1916, contemplates promotion as ordinarily understood in military legislation. Temporary promo

331d. Vacancies in grade of second lieutenant caused by increase; how filled.–Vacancies in the grade of second lieutenant, created or caused by the increases due to this Act, in any fiscal year shall be filled by apointment in the following order: (1) Of cadets graduated from the United States Military Academy during the preceding fiscal year for whom vacancies did not become available during the fiscal year in which they were graduated; (2) under the provisions of existing law, of enlisted men, including officers of the Philippine Scouts, whose fitness for promotion shall have been determined by competitive examination; (3) of members of the Officeps' Reserve Corps between the ages of twenty-one and twentyseven years; (4) of commissioned officers of the National Guard between the ages of twenty-one and twenty-seven years; (5) of such honor graduates, between the ages of twenty-one and twentyseven years, of distinguished colleges as are now or may hereafter be entitled to preference by general orders of the War Department; and (6) of candidates from civil life between the ages of twentyone and twenty-seven years; and the President is authorized to make the necessary rules and regulations to carry these provisions into effect. Sec. 24, act of June 3, 1916 (39 Stat. 182).

(See pars. 918 and 918a.)

3310}. Appointments to fill vacancies in grade of second lieutenant, order of appointment.--The first part of the second paragraph of section twenty-four of the Act entitled “An Act for making further and more effectual provision for the national defense, and for other purposes," approved June third, nineteen hundred and sixteen, down to

tion by seniority contemplates that the appointing power shall be satisfied that the officer about to be promoted is qualified. No officer is entitled to promotion regardless of his qualifications. Failure of an oflicer to discharge the duties of a higher grade in the National Army may and should be regarded by the President as satisfactory evidence of his disqualification to perform the duties of the same grade in the Regular Army. It is within the power of the War Department to prescribe how long an officer who has demonstrated his disqualification for higher command in the National Army shall remain ineligible for temporary promotion in the Regular Army and upon what conditions he shall become eligible for such promotion. (War Dept. Bul. 75, Dec. 31, 1917.)

* Held, that both the examination and the appointment must come within the age limits specified by the statute, and that an applicant who failed in an examination was not eligible for a reexamination and appointment after he had passed the maximum age limit. (War Dept. Bull. 57, Dec. 22, 1916.)

Inquiry was made whether commissioned officers of the National Guard Reserve are included in the expression" commissioner officers of the National Guard," designated by section 24 of the national-defense act as the fourth class in the order of appointment to vacancies in the grade of second lieutenant.

Heid, that section 69, relating to the period of enlistment, and section 70, prescribing the oath of enlistment, as well as other sections of the nationaldefense act, indicate clearly that the term “National Guard ” includes an active and a reserve force, and that unless the context indicates a different meaning the term “National Guard” should be construed as including the National Guard Reserve. The question was answered in the affirmative. (War Dept. Bull. 15, Mar. 24, 1917.)

the first proviso in said paragraph, be, and the same is hereby amended to read as follows:

“ Vacancies in the grade of second lieutenant created or caused by the increases due to this Act, in any fiscal year shall be filled by appointment in the following order: (First) Of cadets graduated from the United States Military Academy during the preceding fiscal year for whom vacancies did not become available during the fiscal year in which they graduated; (second) under the provisions of existing law of enlisted men, including officers of Philippine Scouts, between the ages of twenty-one and thirty-four years, whose fitness for promotion shall have been determined by competitive examination; and of members, including officers, of the Organized Militia, the National Guard, or Naval Militia, between the ages of twenty-one and thirty-four years who have had at least ninety days actual Federal military service under any call of the President during the calendar year nineteen hundred and sixteeen, and whose fitness for promotion shall have been determined by examination;: (third) of members of the Officers' Reserve Corps between the ages of twentyone and twenty-seven years, of distinguished colleges as are now or may hereafter be entitled to preference by general orders of the War Department; and (sixth) of candidates from civil life between the

Two enlisted men were discharged to enable them to accept commissions. They were then appointed second lieutenants, without knowledge that they were below the statutory age. Held, That such discharge from military service, unless it was obtained by fraud, is final and cannot be amended or revoked; that the appointment to the office of second lientenant, having been completed, cannot be rescinded by the appointing authority; and hence the appointees can be removed only by resorting to the procedure established by law for the removal of officers; that the fact that such appointees were under the age of 21 in no way impeaches their right to hold the offices to which they were appointed, the matter of their eligibility having been foreclosed by the action of the appointing power. (Dig. Opin, J. A. G., January, 1918.)

* An officer in the Philippine Scouts, with the permission of the examining board, took and passed the examination for appointment as a provisional second lieutenant, at a time when he was ineligible to take such examination because he had completed only ten months of the one year of service required by law. Held, that such examination can be accepted as the basis for his appointment after he has completed his one year of service. The time of taking the examination is not important, if the period intervening between the date of examination and the date of induction into office be not so great that a change in the qualifications of the candidate is likely to result in the interim. (Id.)

* Held, that a person who had been discharged from the National Guard and had entered a training camp as a candidate for a commission was not eligible for appointment as a second lieutenant under the said provision, as the qualification of membership in the National Guard must exist at the date of appointment.

Held further, that a National Guard enlisted man furloughed to the National Guard Reserve was eligible for appointment under the said provision as he continued to be a member of the National Guard.

Held further, that no person is eligible as a member of the National Guard for appointment as a provisional second lieutenant in the Regular Army under section 24 of the national-defense act as amended by act of May 12, 1917, unless he is a member of the National Guard at the date of appointment. It is immaterial that they were members of National Guard at date of examination. (War Dept. Bull. 67, Nov. 30, 1917.)

ages of twenty-one and twenty-seven years; and the President is authorized to make the necessary rules and regulations to carry these provisions into effect.” Act of May 12, 1917 (40 Stat. 44), amending sec. 24, Act of June 3, 1916 (39 Stat. 182).

331dj. Waiver of age limit of candidates for second lieutenant.The President be, and he is hereby, authorized to waive the age limit in all cases where the candidate for second lieutenant, who being within the maximum age limit at the date of examination has passed or may pass the examination, and who has become or may become ineligible on account of age before the date of his appointment; and to appoint such candidate with rank from the same date as other candidates of like class who have been or may be appointed as the result of the same examination: Provided, That such appointment is made within one year from the date of such examination. Act of May 12, 1917 (40 Stat. 73), amending Sec. 24, Act of June 3, 1916 (39 Stat. 182).

331e. Same-Vacancies not filled on graduation of cadet class; vacancies not caused by increase to be filled under existing law.Any such original vacancies not so filled, and remaining at the time of graduation of any class at the United States Military Academy, may be filled by the appointment of members of that class; and all vacancies in the grade of second lieutenant not created or caused by the increases due to this Act shall be filled as provided in the Act making appropriation for the support of the Army, approved March third, nineteen hundred and eleven. Sec. 24, act of June 3, 1916 (39 Stat. 183).

(See par. 918, post.)

331f. Enlisted men who have completed one year's service may become candidates for vacancies caused by increase.—Enlisted men of the Regular Army who have completed one year's service with an organization may become candidates for vacancies in the grade of second lieutenant created or caused by the increases due to the operation of this Act. Id. 183.

(See par. 786a for next proviso of this section.)

331g. Lineal and relative rank of second lieutenants appointed to original vacancies created by this Act.-Officers appointed to original

A man who has completed one year's service in the National Army may become a candidate to fill a vacancy in the grade of second lieutenant in the Regular Army created or caused by the increase due to the operation of the act of june 3, 1916, but not for a vacancy not so caused. The phrase "except as to promotions” in sec. 2 of act of May 18, 1917, applies exclusively to oflicers. (War Dept. Bull. 67, Nov. 30, 1917.)

*Ileld, That the service as an oíficer of the Philippine Scouts would confer eligibility within the meaning of the statute quoted, upon the reenlistment of the men. (War Dept. Bul. 47, Nov. 16, 1916.)

Jield, That the statute contemplates one year's service in the Army and that the officer of the Philippine Scouts was not qualified by reasou of his service in the Marine Corps. (War Dept. Bull. 57, Dec. 22, 1916.)

vacancies in the grade of second lieutenant created or caused by this Act shall take lineal and relative rank according to dates of appointment, and the lineal and relative rank of second lieutenants appointed on the same date shall be determined under such regulations as the Secretary of War may prescribed. Id.

(See paragraph 786a for the proviso preceding this paragraph, and paragraphs 931a, 930a, 930b, 961a, and 958a for the remaining provisions of this section.)

331h. Saving clause.—Nothing in this Act shall be held or construed so as to discharge any officer from the Regular Army or to deprive him of the commission which he now holds therein. Sec. 127, id. 217.

331i. Repealing clause.—All laws and parts of laws in so far as they are inconsistent with this Act are hereby repealed. Sec. 128, id.

332a. Excessive enlistment of recruits to supply trained men for organizations serving outside limits of United States. To fill vacancies occurring from time to time in the several organizations serving without the limits of the United States with trained men the President is authorized to enlist recruits in numbers equal to four per centum in excess of the total strength authorized for such organizations. Sec. 29, act of Feb. 2, 1901 (31 Stat. 756).

332b. Increase of organizations to maximum strength in an emergency.-When in the judgment of the President an emergency arises which makes it necessary, all organizations of the Army which are now below the maximum enlisted strength authorized by law shall be raised forthwith to that strength and shall be maintained as nearly as possible thereat so long as the emergency shall continue. Joint resolution of Mar. 17, 1916 (39 Stat. 36).

332c. Same-Unassigned recruits, not to exceed five per centum of total enlisted strength, not to be counted.The total enlisted strength of any of said arms of the service shall not include unassigned recruits therefor at depots or elsewhere, but such recruits shall at no time exceed by more than five per centum the total enlisted strength prescribed for such arms; and the enlisted men now or hereafter authorized by law for other branches of the military service shall be provided and maintained without any impairment of the enlisted strength prescribed for any of said arms. Id.

* Held, That the former statute was not modified by the latter provision and that the persons appointed provisional second lieutenants to fill vacancies created or caused by the act of June 3, 1916, and who have had commissioned service in the National Guard in the service of the United States or in the Philippine Scouts are entitled, under sec. 1219, Revised Statutes, to have the time so served as commissioned officers taken into account in fixing their relative and lineal rank.

Held further, That the benefit of former commissioned service under sec. 1219 of the Revised Statutes is effective only within the class from which the appointee is selected, since sec. 24 creates an order of preference in which appointments are made which is not disturbed by the provisions of sec. 1219, Revised Statutes. (War Department Bull. 57, Dec. 22, 1910.)

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