wholly retired from the service, as the President may determine: Provided further, That when by reason of an increase in the arm, corps, or branch of the service in which an officer is commissioned his loss of files in lineal rank due to suspension from promotion as hereinbefore provided exceeds, if a second lieutenant, fifteen per centum; if a first lieutenant, twelve per centum; and if a captain, nine per centum, of the number of officers authorized by law in his grade and arm, corps, or branch of the service at the time he would have been promoted had he not been suspended from promotion, he shall, if promoted upon reexamination, be advanced to the position he would have occupied in the grade to which promoted had his loss of files in lineal rank been limited to the percentage just specified as applicable to the grade in which the suspension occurred: And provided further, That nothing in this section shall be construed as changing the law now in force in respect to the examination of officers of the Medical Corps of the Army for promotion.'

SEC. 2. That so much of "An act making appropriation for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and ten," approved March third, nineteen hundred and nine, as relates to the examination for promotion of majors of the Medical Corps of the Army be, and the same is hereby, amended to read as follows:

"That any major of the Medical Corps on the active list of the Army who at his first examination for promotion to the grade of lieutenant colonel in said corps shall hereafter be found disqualified for such promotion by reason of lack of professional qualification shall be suspended from promotion for one year and his right to promotion shall pass successively to such officers next below him in rank in said corps as are or may become eligible to promotion under existing law during the period of his suspension; and any officer suspended from promotion as hereinbefore provided shall be reexamined as nearly as practicable one year after the date of the completion of the examination that resulted in his suspension; and if, on such reexamination he is found qualified for promotion he shall upon expiration of the year of suspension again become eligible for promotion; but if he is found disqualified by reason of physical disability incurred in the line of duty he shall be retired with the rank to which his seniority entitles him to be promoted; and if he is found disqualified by reason of lack of professional qualification he shall be retired from active service without promotion; and if either upon his first examination or upon reexamination he is found disqualified for promotion for any reason other than physical disability contracted in the line of duty or lack of professional qualification he shall be retired from active service without promotion or wholly retired from the service as the President may determine: Provided, That when by reason of an increase in the Medical Corps of the Army an officer's loss of files in lineal rank due to suspension from promotion as hereinbefore provided exceeds eleven per cent of the number of officers authorized by law in the grade of major in the Medical Corps of the Army at the time he would have been promoted had he not been suspended from promotion, he shall, if promoted upon reexamination, be advanced to the position he would have occupied in the grade of lieutenant colonel had his loss of files in lineal rank been limited to the percentage just specified." SEC. 3. That members of Army boards appointed to examine officers to determine their fitness for promotion shall be sworn in every case to discharge their duties honestly and impartially; and each such board shall have such powers of a court-martial and of a court of inquiry as are by statute vested in an Army retiring board.

SEC. 4. That the Secretary of War be, and he is hereby, authorized and directed to readjust in accordance with the rule established by section one or by section two of this act, as the case may require, the rank of any officer whose loss of files in lineal rank due to suspension from promotion under laws relating to the examination of officers for promotion has exceeded, by reason of an increase in the arm, corps, or branch of the service to which the officer belonged, the percentage of loss hereinbefore specified as applicable to the grade in which the suspension occurred: Provided, That nothing in this act shall be construed as entitling any officer to back pay or allowances because of any advance in rank he may receive under its provisions.

The CHIEF OF STAFF, War Department.

MARCH 16, 1912.

SIR: By reference from your office I am in receipt of a memorandum from the Adjutant General's Office, bearing date of March 7, 1912. In that memorandum, which has for its subject a draft of a bill to amend section 3 of "An act to provide for the examination of certain officers of the Army and to regulate promotions therein," approved October 1, 1890, and for other purposes, Col. McCain remarks in part as follows:

"It does not appear to this office that limiting the number of files lost by officers under suspension to a certain percentage when the Army is increased would be any

more equitable than placing the same limit on the loss of files when no increase occurs in the number of officers authorized by law.

"The number of casualties that result in promotions in any arm and from any grade during a year of suspension can be ascertained as well when the Army is increased as when it is not increased.

"The purpose of the general law is to require an officer who is found disqualified to lose his opportunity for promotion for one year in ordinary times and according to the ordinary casualties of the service, and if he is not required to lose any more than this during a period of increase it can not be said that the increase affects him injuriously. "In the opinion of this office if, after the word 'exceeds,' in the fourth line of the fourth proviso on page 2 of the proposed bill, the words 'the loss he would have sustained if no such increase had occurred,' instead of the words used in the proposed bill, were used, it is thought it would preserve the purposes of the general law. The proviso would then read:

"Provided further, That when by reason of an increase in the arm, corps, or branch of the service in which an officer is commissioned his loss of files in lineal rank due to suspension from promotion as hereinbefore provided exceeds the loss he would have sustained if no such increase had occurred, he shall, if promoted upon reexamination, be advanced to the position he would have occupied in the grade to which promoted had his loss of files in lineal rank not exceeded the number of files he would have lost through ordinary casualties, while under suspension, had no increase occurred,' etc. "It would seem that something of the same character should be substituted for the percentage feature in the portion of the proposed bill relating to the Medical Corps." The draft of the bill referred to above was prepared and submitted by this office under date of February 28, 1912, pursuant to instructions to incorporate in the project the percentage limitation remarked upon by Col. McCain.

As the plan suggested by Col. McCain is designed to make the actual loss of files to be sustained by an officer suspended from promotion by reason of failure to pass the required examination the same for any particular time, irrespective of whether the branch of the service to which the suspended officer belongs is increased or not, I am inclined to the opinion that this plan would be less likely to be made the basis of complaint by officers who may lose files by reason of such suspension than would be the case with the percentage limitation.

I am not prepared to say that the exact significance of the expression "through ordinary casualties," employed in the substitute proviso suggested in Col. McCain's memorandum, is settled beyond question, and am, therefore, of the opinion that the use of the expression should be avoided.

The draft of the proposed bill submitted by this office under date of February 28, 1912, may be modified so as to embody the plan suggested by Col. McCain by making the following changes in said draft, viz:

1. Strike out the fourth proviso in the first section and substitute:

"Provided further, That when by reason of an increase in the arm, corps, or branch of the service in which an officer is commissioned his loss of files in lineal rank due to suspension from promotion as hereinbefore provided exceeds the loss he would have sustained if no such increase had occurred, he shall, if promoted upon reexamination, be advanced to the position he would have occupied in the grade to which promoted had no increase occurred."

2. Strike out the proviso in section 2 and substitute:

"Provided, That when by reason of an increase in the Medical Corps of the Army an officer's loss of files in lineal rank due to suspension from promotion as herein before provided exceeds the loss he would have sustained if no such increase had occurred, he shall, if promoted upon reexamination, be advanced to the position he would have occupied in the grade of lieutenant colonel had no increase occurred."

3. Strike out section 4 and substitute:

"SEC. 4. That the Secretary of War be, and he is hereby, authorized and directed to readjust in accordance with the rule established by section 1 or by section 2 of this act, as the case may require, the rank of any officer whose loss of files in lineal rank due to suspension from promotion under laws relating to the examination of officers for promotion has exceeded, by reason of an increase in the arm, corps, or branch of the service to which the officer belonged, the loss he would have sustained had sections 1 and 2 of this act been in force at the time of his examination, suspension, reexamination, and promotion based upon such reexamination: Provided, That nothing in this act shall be construed as entitling any officer to back pay or allowances because of any advance in rank he may receive under its provisions.'

It has been suggested that additional details that create vacancies to be filled by promotion under laws in force immediately preceding the accruing of the right to promotion should not be construed as effecting an increase, in the sense in which that

term is used in the proposed bill, in the arm, corps, or branch of the service from which officers are so detailed. This suggestion may be incorporated in the draft submitted by this office on February 28 by placing a semicolon after the word "occurred," the last word of the fourth proviso in the first section of said draft, and inserting after the semicolon the following: "but details that create vacancies to be filled by promotion under laws in force immediately preceding the accruing of the right to promotion subject to examination shall not be construed as effecting an increase, in the sense of that term as employed in this act, in the arm, corps, or branch of the service from which officers are so detailed."

For the same purpose the same addition may be made to the fourth proviso as modified to embody Col. McCain's suggestions.

Very respectfully,

E. H. CROWDER, Judge Advocate General.

APRIL 15, 1912.

CHAIRMAN COMMITTEE ON MILITARY AFFAIRS,

House of Representatives.

SIR: I have the honor to transmit herewith a memorial to Congress drawn by Capt. Frederick S. L. Price, Eighth Infantry, in which the memorialist prays that an act be passed by Congress to correct his relative rank, and that his name be placed next below that of Capt. Joseph L. Gilbreth, Twenty-seventh Infantry, the place it would have appeared on the list had he not been suspended from promotion.

In paragraph 7 of his memorial, Capt. Price says:

"Memorialist is informed that having been appointed from civil life he should have been examined 'as to fitness for practicable service' and not 'as to technical knowledge.'

The law to which this paragraph refers is as follows:

"The examination of officers appointed in the Army from civil life or of officers who were officers of Volunteers only, or where officers of the militia of the several States called into the service of the United States, or were enlisted men in the regular or volunteer service, either in the Army, Navy, or Marine Corps during the War of the Rebellion, shall be conducted by boards composed entirely of officers who were appointed from civil life, or of officers who were officers of Volunteers only during said war, and such examinations shall relate to fitness for practical service and not to technical and scientific knowledge; and in case of failure of any such officer in the reexamination hereinbefore provided for, he shall be placed upon the retired list of the Army; and no act now in force shall be so construed as to limit or restrict the retirement of officers as herein provided for." (Sec. 3, act of Oct. 1, 1890, 26 Stat. L., 562.)

The above act of Congress applies only to officers appointed in the Army from civil life, etc., during the War of the Rebellion. (Par. 1322, Digest of the Opinions of the Judge Advocate General of the Army, card 3670.)

Capt. Price did not belong to the above class, and he can therefore claim no exemption under the provisions of the above act of Congress.

The history of his case is as follows: Appointed second lieutenant from civil life July 9, 1898; failed in his examination for promotion and was suspended for one year from March 2, 1899; lost 97 files in lineal rank, due to promotions and appointments during the period of his suspension, whereas the total number of casualties which occurred during his period of suspension would have caused him to lose 73 files only. From the above it will be seen that, due to the promotions occasioned by the act of March 2, 1899, Capt. Price lost 24 files more than was contemplated as a proper penalty for failure to pass the examination for promotion under the provisions of the act of Congress approved October 1, 1890. Bills for his relief have been before the Fiftysixth, Fifty-ninth, Sixtieth, and Sixty-first Congresses, but no relief has as yet been granted, though the act of February 24, 1910, granted relief to three officers of the Coast Artillery Corps and to one officer of the Field Artillery whose cases are identical with that of Capt. Price.

A favorable report was submitted by the Senate Committee on Military Affairs on a bill (S. 7571, 61st Cong., 2d sess.) to correct the lineal rank of several officers whose cases are identical with that of Capt. Price; the aforesaid report sets forth the views of the War Department in the premises.

The justice of Capt. Price's prayer that his name be placed next below that of Capt. Joseph L. Gilbreth, Twenty-seventh Infantry, is not admitted by this office. If this prayer be granted, Capt. Price will suffer no loss in rank as a result of his failure to pass the examination for promotion, whereas it is thought that he should suffer such loss as was contemplated by the act of October 1, 1890, namely, such as would have resulted

from his suspension from promotion had there been no unusual promotions, due to legislation, during the period of his suspension. In other words, Capt. Price should suffer a loss of 73 files, due to casualties which occurred during the period of his suspension from promotion, but he should not suffer an additional loss of 24 files, due to the enactment of legislation during the period of his suspension which caused an increase in the branch of service in which he holds commission.

In addition to Capt. Price, there are nine other officers now in the Army who have suffered an unusual loss of rank, due to the enactment of legislation during the period of suspension from promotion. They are entitled to the same measure of relief as has been suggested above in the case of Capt. Price, but it would seem highly undesirable to restore Capt. Price, or any other of the officers who failed to pass the prescribed examination, to the place on the list which he occupied at the date of suspension They should suffer only such losses as would have occurred had no legislation been enacted during the period of their suspension.

In accordance with the foregoing principles, the following table has been constructed indicating the place on the lineal list which Capt. Price and other officers should occupy had no legislation been enacted during the period of their suspension from promotion:

From the foregoing table it will be seen that three of the officers enumerated have not yet been promoted, and that special legislation can not now be enacted fixing their place upon the termination of the period of suspension. Other cases of a similar character will probably arise in the future under the operation of the act of October 1, 1890. It would therefore appear that a law should be enacted by which the Secretary of War may correct the position on the lineal list of all officers whose cases are similar to those enumerated and to adjust all cases which may arise in future, thus avoiding the enactment of numerous special acts of Congress in favor of individuals. It is thought that the acts of Congress with reference to this matter should be modified accordingly.

It is found upon examination of these acts that they not only fail to correct the inequities in the cases enumerated, but that when an officer is found disqualified for promotion for any reason other than physical disability contracted in line of duty or

lack of professional qualifications, the acts of October 1, 1890, and of March 3, 1909, do not always furnish a means of completely disposing of the case. A separate proceeding before an Army retiring board thus becomes necessary. This involves unnecessary time and expense. Moreover, the act of March 3, 1909, provides that a major of the Medical Corps found disqualified for promotion for physical disability not contracted in line of duty shall be retired without promotion, whereas it is thought that authority should exist for wholly retiring any officer found so disqualified.

Finally, the purpose of the last two provisos of section 3 of the act of October 1, 1890, as amended by the first section of the act of July 27, 1892, was to make special provision for the examination for promotion of officers who had served during the Civil War in certain specified capacities. As there are now no officers in the Army who served during the Civil War and who are still subject to examination for promotion, the two provisos mentioned may be omitted in redrafting the laws pertaining to the subject of examination for promotion.

The bill submitted herewith is therefore so drawn as to correct the lineal rank of Capt. Price and of all officers whose cases are similar thereto, to give to the Secretary of War authority to correct the lineal rank of all officers who lose an extraordinary number of files due to increase in their arm or corps during the period of suspension, and to remove the defects above referred to in the present laws governing examination for promotion.

It is recommended that the bill be enacted into law during the present session of Congress. Very respectfully,

HENRY L. STIMSON,
Secretary of War.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section three of “An act to provide for the examination of certain officers of the Army and to regulate promotions therein," approved October first, eighteen hundred and ninety, be, and the same is hereby, amended to read as follows:

"SEC. 3. That the President be, and he is hereby, authorized to prescribe a system of examination of all officers of the Army below the rank of major to determine their fitness for promotion, such an examination to be conducted at such time anterior to the accruing of the right to promotion as may be best for the interests of the service: Provided, That the President may waive the examination for promotion to any grade in the case of any officer who in pursuance of existing law has passed a satisfactory examintion for such grade prior to the passage of this act: Provided further, That if any officer fails to pass a satisfactory examination and is reported unfit for promotion, the right to promotion shall pass successively to such officers next below him in lineal rank as are or may become eligible for the promotion: Provided further, That if the officer fails in his physical examination and is found incapacitated for service by reason of physical disability contracted in line of duty he shall be retired with the rank to which his seniority entitles him to be promoted; and if he is found disqualified for promotion by reason of lack of professional qualification he shall be suspended from promotion for one year and shall be reexamined as nearly as practicable one year after the date of the completion of the examination which resulted in his suspension; and if upon such reexamination he is found qualified for promotion he shall upon expiration of the year of suspension again become eligible for promotion; but if upon such reexamination he is found disqualified for promotion by reason of physical disability contracted in line of duty he shall be retired with the rank to which his seniority entitles him to be promoted; and if upon such reexamination he is found disqualified for promotion by reason of lack of professional qualification he shall be honorably discharged with one year's pay from the Army; and if either upon his first examination or upon reexamination he is found disqualified for promotion for any reason other than physical disability contracted in the line of duty or lack of professional qualification he shall be retired from active service without promotion or wholly retired from the service as the President may determine: Provided further, That when by reason of an increase in the arm, corps, or branch of the service in which an officer is commissioned his loss of files in lineal rank due to suspension from promotion as hereinbefore provided exceeds the loss he would have sustained if no such increase had occurred he shall if promoted upon reexamination be advanced to the position he would have occupied in the grade to which promoted had no increase occurred: And provided further, That nothing in this section shall be construed as changing the law now in force in respect to the examination of officers of the Medical Corps of the Army for promotion."

SEC. 2. That so much of "An act making appropriation for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and ten," approved March