be adhered to only with injury to fighting efficiency. Military elements besides the bravery and skill of officers and men are necessary to victory. Scientific organization and efficient administration of an army are indispensables. Battles can hardly be won with forces which are regarded as heterogeneous but only so because of customary conception or legal formulary. Administration should proceed boldly along broad lines to sustain our fighting forces with unity of organization and unity of administration as well as of purpose, if we are to succeed against an enemy who has demonstrated his thoroughness in that field." 5. However, in the opinion just quoted from this office distinguished, with respect to their eligibility for transfer, officers holding commissions with life tenure or tenure for fixed periods from those holding commissions for the period of the emergency, and stated in this connection: "I have discussed the enlisted personnel and have found nothing in their obligations and nothing in their status to militate against the view here adopted. Addressing myself to the official personnel I come to a similar conclusion except as to (1) the officer of the Regular Army and (2) the officer of the Officers' Reserve Corps. All other officers, whether they have been commissioned in the so-called National Guard component, or in the first additional force, which we call the National Army, or shall be commissioned in the second additional force of five hundred thousand men when drafted, or in any one of the other enumerated forces, have in all respects similar status and obligations. The officer of the Regular Army differs from the officers of the other forces in that his status is permanent and there are many distinguishing characteristics based upon that distinctive feature. Öfficers of the Regular Army constitute the only personnel in the Army of the United States that is permanent; all else is temporary. The statute clearly recognizes this distinction. Regular officers may not be transferred to the other forces, but they may be appointed thereto in the manner prescribed by statute and not otherwise. Officers of the other forces cannot become officers of the Regular Army, except by original appointment as the statute prescribes. There can be no such thing as transfers of regular officers to the other forces or of officers of the other forces to the Regular Army. So, too, the officer of the Reserve Corps is to be distinguished from officers of the other forces in that he has These incidents a fixed, limited tenure of office and a specified use. preclude homogeneity with the other forces. But the great majority of officers will, of course, belong to the forces other than the Regular Army and the Officers' Reserve Corps and these officers are in all respects on the same plane and their homology should be recognized. "There are in the eyes of the law but three kinds of commissioned officers; those of (1) Regular Army; (2) all forces, other than the Regular Army, enumerated in the Selective Service Law; (3) Officers' Reserve Corps. I see no reason why administration should not conform." 6. What was said by this office in the opinion quoted from is applicable to the question now before me; and, since a transfer of a National Guard officer to the Officers' Reserve Corps would change the tenure of his office without authority of law and without his consent, such transfers would not be legal. 7. In the opinion of this office there is no need for such transfers as proposed, since officers in the Ordinance Department may be created in the National Army and in the force composed of National Guard drafted into the service of the United States and officers of those forces transferred thereto, thus accomplishing in effect the result desired. [Signed] E. H. Crowder, Judge Advocate General. 10. DISCHARGE OF DRAFTED MINOR December 27, 1917. From: The Office of the Judge Advocate General. Subject: Status of conscripted men who registered when under age. 1. This office is in receipt of your letter of the 7th in which you state applications are being received from the parents of soldiers over eighteen and under twenty-one who registered and were subsequently drafted. You say it has been generally held that men so circumstanced should be discharged. You specifically state: "It would seem that a man, who, knowing his true age, and being of sufficient age to enlist in the military service, voluntarily registers and is subsequently drafted should be obliged to serve. A different case would be presented if it appeared that the man registered under mistaken belief that he was of the age which would require his registration and subsequently discovered that he was over or under such age." The question as I view it is whether men who are now claimed by their parents or by themselves to be under twenty-one years of age, but who, in fact, registered and gave their ages as twenty-one years, and thus brought themselves within the draft act, may now be discharged from the military status imposed upon them by the draft, upon application by the parent by way of a writ of habeas corpus or otherwise. 2. The law involved is not the law of voluntary enlistment or muster as contained in the Revised Statutes and the National Defense Act, but the law to be applied is that found in section 2 of the Selective Service Act of May 18, 1917 (40 Stat. 77). It is there provided in effect that all male citizens between twenty-one and thirty years of age are liable to registration and draft; and it is further provided in section 4 of said act that any and all questions of exemption and eligibility shall be determined by boards provided for in said act and appointed. by the President under such regulations as he shall prescribe. 3. Clearly, in any view of the law the decision of such boards upon questions of eligibility, including age, is final and beyond judicial inquiry, except in the well known cases of fraud, etc., which operate to the disadvantage of the soldier himself. The decision of such boards is final and unimpeachable in collateral attack. In this connection your attention is invited to the recently decided case of United States ex rel. Koopowitz v. Finley, 245 Fed. 871 (decided in the U. S. District Court for the Southern District of New York, Nov. 3, 1917). There the relator, a citizen of Russia, had never declared his intention to become a citizen of the United States. He was drafted for military service and ordered to report and for failure to report was arrested by the military authorities and charged with desertion. He never made any claim for exemption on the ground of alienage in the manner prescribed by the Presidential regulations. He did, however, state that he had made certain informal claims of exemption and that he failed to make them more formal because of assurances given him by members of the local board that because of his alienage he need not trouble himself further. These claims were denied by members of the local board. It is to the clear statement of the law relating to the decision of such boards that your attention is specifically invited. I quote you the following from the opinion of Mayer, Judge: "Is a person who failed to claim exemption on the ground that he was a nondeclarant alien, and who now asserts (without contradiction) that he is such an alien, properly in the custody of the military authorities? "The remaining question is whether the local board wholly lacked jurisdiction. It is contended because nondeclarant aliens are exempted from the draft that no obligation was placed upon relator affirmatively to present his claim for exemption, and this is but another way of stating that by virtue of the act itself relator was automatically exempted. "It must be conceded at the outset that Congress had the power to subject all persons to the draft whether citizens or aliens. "The question, then, is whether, from the structure of the act, it was the intention of Congress that only those who claimed exemption. should in proper cases be exempted or whether those entitled to exemption could disregard the procedure provided for by the act and the regulations and show aliunde, as here, that they fell within one of the statutory exempt classes. * * * "The whole plan of the act is undoubtedly to require that those who claim exemption shall affirmatively present their claim to the appropriate body so that that body can determine as a fact whether the person falls within the exempted classes. When, therefore, no such claim is presented and the proceedings of the local and the district boards are regular in every respect, the court can not go outside of the proceedings of the boards to determine independently something which the act required should be determined by these boards." 4. In the case to which you refer there is no opportunity for fraud except when committed by the man himself and, of course, he could there take no advantage. Even if it were otherwise and the decisions of such boards were not final, judicial inquiry would of necessity reach the same conclusion; for the reason that questions of age gave no privilege to an alleged minor whose contract of enlistment is good as far as he is concerned. This is true because age is not of the substance of the contract of enlistment, and a person who voluntarily enlists, representing himself to be of proper age, can not destroy the status thus created on the ground that he does not possess the requisite qualifications. To hold otherwise would be to say that a minor is not at liberty to serve his country. It is a fundamental principle of national law, essential to national life, that every citizen, whether of sufficient age to make a. contract or not, is under obligation to serve and defend the constituted authorities of the State and Nation and for that purpose to bear arms when such service is required of him. These principles are recognized and discussed in the well known cases of In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636, and In re Morrissey, 137 U. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644, where the principle is distinctively enunciated; that the age at which an infant shall be competent to perform any military duty depends wholly upon the legislature; and that questions of eligibility for such service are for the benefit of the Government, the party for whose benefit it is prescribed. If the matter of age were not incidental, then a person enlisting could utter a falsehood to create the military status and then by pleading the truth avoid it whenever it suited his purposes. 5. Where, however, a statute actually forbids in prohibitory terms enlistment under a certain age, then possibly a contract of enlistment might be null and void, although that is doubtful. The sections. of the Selective Service Act here under consideration give no room for such question. Neither does the question submitted present an instance where a minor has enlisted without the written consent of his parents or guardian. Such statutes are designed not merely to protect the immature minor from improvident action, but also to preserve the parent's or the guardian's right to his custody and service. And yet the parent or guardian may waive this right by silence or acquiescence in the minor continuing in the service and drawing pay from the Government. 6. I am, therefore, of the opinion that where a district board certifies a registrant as being within the draft age, he cannot be discharged from the military status thus imposed upon him upon application by his parent or guardian, and that in the absence of fraud the decision of the board so certifying is final. To hold otherwise would make the military status a farce, destroy discipline, and offer a premium for falsehood and desertion. [Signed] Herbert A. White, For the Judge Advocate General. 11. DUTY OF MILITARY PERSON TO OBEY SUBPOENA TO TESTIFY IN War Department, J. A. G. O., January 2, 1918.-To the Adjutant Gen eral. 1. The views of this office are desired with reference to an inquiry of the Attorney General as to the policy of the Department (a) generally relative to men serving in the Army who may be needed as witnesses for the Government in cases in the Federal Courts; and (b) particularly with reference to the case of Jacob Nottonson, 501st Battalion Engineers, Company D, Camp Merritt, New Jersey, who is a material witness in a criminal case which will be reached for trial in April, and whose detention in the United States for this purpose is desired by the United States Attorney for the Southern District of Texas. 2. Paragraph 9962, Army Regulations, pertinent to the question, provides as follows: "An officer or enlisted man who receives a summons to attend as a witness before any civil court, or other civil tribunal competent to execute subpoenas, will, before starting to obey the summons, request. authority from his commanding officer to obey same." 3. It is the opinion of this office that this Department should render to the Department of Justice every possible assistance in securing the attendance of witnesses at the trial of criminal cases consistent with the interests of the military service. Accordingly, when a member of the military establishment is served with a summons to appear as a witness for the Government in a criminal trial, he should obey the summons unless, in the opinion of his commanding officer, the interests of the military service would be prejudiced by so doing. It is the view of this office, however, that it would be prejudicial to the military interests to detain persons in the United States in order that they may be available as witnesses, and therefore it would be proper military policy to decline any request so to detain such persons. 4. If the witness, Jacob Nottonson, is in the United States when the case in which he is desired as a witness is reached for trial, and he is served with a summons to appear as a witness on behalf of the Government, he should obey the same, unless, in the opinion of his commanding officer, the military service would be prejudiced by his so doing. He should not, however, be detained purposely in this country to await the trial. [Signed] S. T. Ansell, Acting Judge Advocate General. MIL.L.-45 |