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revocation of the dismissal. Montgomery v. V. S. (1884), 19 Ct, Cl. 370. And see McElrath v. U. 8. (1876), 12 Ct. CI. 201.
Where the sentence of a legally consul. tuted court-martial, dism.ssing an officer, has been approved by the reviewing au. thority and carried into execution, it can pot afterwards be revised and annulled. (1882) 17 Op. Atty. Gen. 297.
Where the President is authorized by law to reinstate a discharged Army officer, he may do so without the advice and consent of the Senate. Collins v. U. S. (1879), 15 Ct, C1, 22, reaffirming (1878) 14 Ct. CI. 568.
The practical results of this statute, in connection with other provisions of law bearing upon the subject, are these : That in time of war the President may dismiss an officer from service at any moment and for any cause; that in time of peace be may dismiss him for cause, with the cooperation of a court-martial; or remove him
without cause, with the consent of the Senate. Street v. U. S., 24 Ct. Cls. 248 ; Blake v. U. S., 103 U. S. 227 ; Fletcher v, U. S., 26 Ct. Cls. 541.
The President has the power to remove an officer of the Army by the appointment of another in his place, by and with the advice and consent of the Senate, and such power is not withdrawn by the provisions of sec. 5 of the act of July 13, 1866 (sec, 1229 R. S.), and this provision does not restrict the power of the President, by and with the advice and consent of the Senate, to displace officers of the Army and Navy hy the appointment of others in their places. Keyes v. U. S., 109 U, S. 3:36, 339; Rlake 1. U. S., 103 U, S. 227; McElrath u. U. S., 103 U. S. 426 ; Mimmack u. U. S., 97 U, S. 426; U. S. v. Corson, 114 U. S. 619; Montgomery v. U. S., 19 Ct. Cls. 370 ; Bonnett v. U. S., id. 379; l’alen v. C. S., id. 389: VC. Blair v. U. S, id, 528; Vanderslice 1. l'. S., id. 480 ; XV Opin. Att. Gen, 407.
2449. Discharge of officers from temporary appointments.
The President is hereby authorized to discharge any officer from the office held by him under such appointment for any cause which, in the judgment of the President, would promote the public service; and the general commanding any division and higher tactical organization or territorial department is authorized to appoint from time to time military boards of not less than three nor more than five officers of the forces herein provided for to examine into and report upon the capacity, qualification, conduct, and efficiency of any commissioned oflicer within his command other than officers of the Regular Army holding permanent or provisional commissions therein. Each member of such board shall be superior in rank to the officer whose qualifications are to be inquired into, and if the report of such board be adverse to the continuance of any such officer and be approved by the President, such officer shall be discharged from the service at the discretion of the President with one month's pay and allowances. Sec. 9, act of May 18, 1917 (40 Stat. 82).
The above is sec. 9 of the selective service act. All emergency officers, except disa abled emergency officers undergoing physical reconstruction, were required to be disa charged, not later than Dec. 31, 1920, by 2207, anta
Officers' Reserve Corps :
Officers' Reserve Corps-Continued. Composition, 2450.
Assignment to units, 2464. Appointment, 2451.
Assignment to active duty-
Leave of absence, 2468. Graduates of Reserve Oficers' Train
Restored to civil positions, 2469. ing Corps, 2455.
Retirement and pension rights Former commissioned officers, 2456.
Restriction, 2470, For duty in staff corps, 2457.
Medical officers, 2471. Contract surgeons cligible, 2458.
Enlisted Reserve Corps : Period of service, 2459.
Period of service, 2472.
Dental students, 2174,
Organization, 2475. Promotions and transfers, 2463.
Active service, 2476. 2450. Composition of the Officers' Reserve Corps.--For the purpose of providing a reserve of officers available for military service when needed, there shall be organized an Officers' Reserve Corps consisting of general officers, of sections corresponding to the various branches of the Regular Army, and of such additional sections as the President may direct. The grades in each section and the number in each grade shall be as the President may prescribe.
Sec, 37, act of June 3, 1916 (39 Stat. 189), as amended by sec. 32, act of June 4, 1920 (41 Stat.
2451. Appointment of reserve officers.-*
Reserve officers shall be appointed and commissioned by the President alone, except general officers, who shall be appointed by and with the advice and consent of the Senate.
* Nothing in this Act shall operate to deprive a reserve officer of the reserve commission he now holds.
Sec. 37, act of June 3, 1916 (39 Stat. 189), as amended by sec. 32, act of June 4, 1920 (41 Stat. 775–776). 2452. Citizenship and age of reserve officers.—*
In time of peace, a Feserve officer must, at the time of his appointment, be a citizen of the United States or of the Philippine Islands, between the ages of twenty-one and sixty years.
Sec. 37, act of June 3, 1916 (39 Stat. 190), as amended by sec. 32, act of June 4, 1920 (41 Stut, 776). 2453. Age for discharge of reserve officers raised during the World War.-
During the existing emergency no member of the Officers' Reserve Corps shall be discharged by reason of reaching the age limits provided in sec. tion thirty-seven of the national defense Act approved June third, nineteen kundred and sixteen. Act of Oct. 6, 1917 (40 Stat. 393).
2454. Concurrent commission in National Guard, -* Any reserve officer may hold a commission in the National Guard without thereby vacating
his reserve commission. Scc. 37, act of June 3, 1916 (39 Stat. 189), as amended by ssc. 32, act of June 4, 1920 (41 Stat, 776).
2455. Selection of reserve officers from graduates of the Reserve Officers' Training Corps.-The President alone, under such regulations as he may preséribe, is hereby authorized to appoint as a reserve officer of the Army of the United States any graduate of the senior division of the Reserve Officers' Training Corps who shall have satisfactorily completed the further training provided for in section 47a of this Act, or any graduate of the junior division who shall have satisfactorily completed the courses of military training preseribed for the senior division and the further training provided for in section 47a of this Act, and shall have participated in such practical instruction subsequent to graduation as the Secretary of War shall prescribe, who shall have arrived at the age of twenty-one years and who shall agree, under oath in writing, to serve the United States in the capacity of a reserve officer of the Army of the United States during a period of at least five years from the date of his appointment as such reserve officer, unless sooner discharged by proper authorIty:
Stc. 476, added to the act of June 3, 1916, by sec. 34, act of June 6, 1920 (41 Stat. 778).
The above topic was treated by sec. 19, act of June 3, 1916 (39 Stat. 193), which has been stricken out by sec. 34, act of June 4, 1920, above cited. 2456. Selection of
officers from former commissioned officers.Any person who has been an officer of the Army at any time between April 6, 1917, and June 30, 1919, or an officer of the Regular Army at any time, may be appointed as a reserve officer in the highest grade which he held in the Army or any lower grade; any person now serving as an officer of the National Guard may be appointed as a reserve officer in his present or any lower grade; no other person shall in time of peace be originally appointed as a reserve officer of Infantry, Cavalry, Field Artillery, Coast Artillery, or Air Service in a grade above that of second lieutenant. In time of peace appointments in the Infantry, Cavalry, Field Artillery, Coast Artillery, and Air Service shall be limited to former officers of the Army, graduates of the Reserve Offcers' Training Corps, as provided in section 47b hereof, warrant officers and enlisted men of the Regular Army, National Guard and Enlisted Reserve Corps, and persons who served in the Army at some time between April 6, 1917, and November 11, 1918.
Sec. 37, act of June 3, 1916 (39 Stat. 189-190), as amended by sec. 32, act of June 4, 1920 (41 Stat. 776).
Provided, further, That any former officer of the Regular Army, the Volunteer Army, the Organized Militia, or the National Guard, under the age of sixty-four years and who has resigned or been honorably discharged from the service after a total commissioned service of not less than three years in in either the Regular Army, the Volunteer Army, the Organized Militia, or the National Guard, may, upon such examination and within such age limits as may be prescribed by the President, be appointed and commissioned, in the discretion of the President, in any appropriate arm, staff corps, department or section of the Officers' Reserve Corps, with rank not more than one grade higher than any previously held by the oflicer in either of said forces, but in no case above that of lieutenant colonel. Act of May 12, 1917 (40 Stat. 73).
The repetition of the word “in," in the fourth line of the above statute, was a typographical error,
2457. Reserve officers selected from citizens qualified for duty in the staff corps.—That during the existing emergency the President is authorized, in addition to the grades now authorized, to appoint in the Oficers' Reserve Corps and the National Army in the grades of second and first lieutenant in the Quartermaster Corps; second lieutenant in the Ordnance Corps and Signal Corps ; second lieutenant, first lieutenant, and captain in The Adjutant General's Department, such citizens as shall be found physically, mentally, and morally qualified for appointment.
Act of Oct. 6, 1917 (40 Stat. 393). 2458. Contract surgeons eligible as reserve officers.- * * Provided, That contract surgeons now in the military service who receive the favorable recommendation of the Surgeon-General of the Army shall be eligible for appointment in said reserve corps without further examination :
Sec. 7, act of Apr. 23, 1908 (35 Stat. 68). 2459. Period of service in the Officers' Reserve Corps.
Appointment in every case shall be for a period of five years, but an appointment in force at the outbreak of war, or made in time of war, shall continue in force until six months after its termination. Any reserve officer may be discharged at any time in the discretion of the President. A reserve officer appointed during the existence of a state of war shall be entitled to discharge within six months after its termination if he makes application therefor.
Sec, 89, act of June 3, 1916 (39 Stat. 190), as amended by sec. 32, act of June 4, 1920 (41 Stat, 776).
2461. Rank of reserve officers formerly of the emergency army of the World War.—That officers of the emergency Army appointed to the Officers' Reserve Corps may be appointed therein to the grade held by them in the emergency Army or next higher grade, as the Secretary of War may direct. Act of July 11, 1919 (41 Stat. 129), making appropriations for the support of the Army, But see 2456, ante.
2462. Rank of medical reserve officers.—That the commissioned officers of the Medical Reserve Corps of the Regular Army, none of whom shall have rank above that of colonel, shall be proportionately distributed in the several grades as now provided by law for the Medical Corps of the Regular Army: Provided, That nothing in this Act shall be held or construed so as to discharge any officer of the Regular Army or deprive him of a commission which he now holds therein. Act of July 9, 1918 (40 Stat. 866). 2463. Promotions and transfers.
Promotions and transfers shall be made under such rules as may be prescribed by the President, and shall be based so far as practicable upon recommendations made in the established chain of command, but no reserve oflicer shall be promoted to any grade in time of peace until he has held a commission for at least one year in the next lower grade.
Sec. 37, act of June 3, 1916 (39 Stat. 190), as amended by sec. 32, act of June 4, 1920 (41 Stat. 776). 2464. Assignment to units.
So far as practicable, reserve officers shall be assigned to units in the locality of their places of residence. Sec. 37, act of June 3, 1916 (39 Stat. 190), as amended by sec. 32, act of June 4, 1920 (41 Stat. 776).
2465. Reserve officers assigned to active duty.- To the extent provided for from time to time by appropriations for this specific purpose, the President may order reserve officers to active duty at any time and for any period; but except