same office, requiring a new commission under the Act, but no new appointment. I am of the opinion that the Act of October 6, 1917, supra, does not require the dental surgeons who were in the service on the passage of the Act and whose appointment had theretofore been made and confirmed by the Senate to be again reappointed. Commissions conforming to the change of title given to their offices by the Act should, however, be issued to them. [Signed] James J. Mayes, Acting Judge Advocate General. 43. DISCHARGE AND RETIREMENT OF DENTAL CORPS OFFICER Discharge XVII B. 19th Ind. War Department, J. A. G. O., May 23, 1918.-To the Adjutant General. 1. By the preceding indorsement the Adjutant General has submitted. to this office for remark a request of the Surgeon General for a decision as to whether in view of the failure of First Lieutenant — -, Dental Corps, National Guard, to qualify professionally in an examination for promotion to the grade of captain, he must be honorably discharged and given a year's pay under the Act of April 23, 1908 (35 Stat. 66 [Comp. St. 1916, § 1807]). ap 2. The papers show that on January 22, 1918, Lieutenant plied to the Surgeon General for promotion under authority of the Act of October 6, 1917 (40 Stat. 397). It appearing that he had completed the requisite service to entitle him to examination for promotion under General Orders 168, W. D., 1917, a board of medical officers was convened to examine him, and the result of the examination was a finding that he was not professionally qualified for promotion. This finding was reviewed by another board, and confirmed. 3. By the Act of October 6, 1917 (40 Stat. 397), Congress removed the limitations imposed by the Act of April 23, 1908, and Section 10 of the National Defense Act of June 3, 1916 (Comp. St. 1916, § 1815a), against promotion of first lieutenants, Medical Corps, to Captain only after three or five years service respectively by enacting that during the existing emergency first lieutenants in the Medical Corps of the Regular Army and of the National Guard shall be eligible to promotions as captain upon such examination as may be prescribed by the Secretary of War. This was the sole purpose of the said Act as the bill was first passed by the House and introduced in the Senate. On the floor of the Senate there was introduced the amendment relating to the Dental Corps, reading as follows: "Hereafter the Dental Corps of the Army shall consist of commissioned officers of the same grade and proportionally distributed among such corps as are now or may be hereafter provided by law for the Medical Corps, who shall have the rank, pay, promotion and allowances of officers of corresponding grades in the Medical Corps, including the right to retirement as in the case of other officers, and there shall be one dental officer for every thousand of the total strength of the Reg ular Army authorized from time to time by law: Provided further: That dental examining and review boards shall consist of one officer of the Medical Corps and two officers of the Dental Corps: Provided further, That immediately following the approval of this Act all dental surgeons then in active service shall be re-commissioned in the Dental Corps in the grades herein authorized in the order of their seniority and without loss of pay or allowances or of relative rank in the Army: And provided further, That no Dental Surgeon shall be re-commissioned who has not been confirmed by the Senate." The purpose and effect of this provision was to place officers of the Dental Corps of the Army upon the same plane as respects rank, pay, promotion, allowances, and right to retirement as officers of the Medical Corps. It superseded the provision in section 10 of the National Defense Act of June 3, 1916, relating to Dental Surgeons. It applies primarily only to the Regular Army, and authorizes one dental officer for every one thousand of the total strength of the Regular Army authorized from time to time by law, proportionally distributed among the different grades as provided by law for the Medical Corps. It applies to National Guard officers only to the extent that may be consistent with their temporary status in the Federal service. While in the Federal service National Guard officers are subject to promotion under the same conditions as to examination as govern in the case of officers of the Regular Army. This means that a first lieutenant of the Dental Corps, National Guard, in the Federal service is entitled under the Act of October 6, 1917, to promotion subject to such examination as is prescribed by the Secretary of War for the promotion of first lieutenants in the Medical Corps. By the Regulations (G. O. 168, W. D., 1917) it is required that such lieutenant shall have had a certain period of active service. The legislation under consideration does not, in the opinion of this office, mean that the officers of the National Guard either in the Medical Corps or in the Dental Corps, are entitled to the benefits of all of the provisions of the Act of April 23, 1908, relating to promotions in the Medical Corps. The provisions of that Act, as viewed by this office, and as stated above, apply primarily to the officers of the Regular Army, and are applicable to officers of the National Guard only so far as is consistent with their temporary status. The Act of 1908, it will be observed, provides that should any member of the Medical Corps fail in his physical examination and be found incapacitated for service by reason of physical disability contracted in the line of duty, he shall be retired with the rank to which his seniority entitled him to be promoted. Evidently, this provision is not applicable to National Guard officers. Congress has never directly authorized the retirement of National Guard officers from the Federal service, and, I think, it would require more certain evidence of an intention to confer this right on officers of the Medical and Dental Corps than is indicated in any laws thus far enacted. So, also, with respect to the provision for the honorable discharge of a first lieutenant or captain who fails in his examination for promotion for any other reason than physical disability contracted in line of duty, that such officers shall be discharged from the service with one year's pay. It is the view of this office that this does not apply to National Guard officers, but only to officers of the Regular Army. Such provision is not consistent with the temporary status of National Guard officers in the Federal service. has been found disqual 4. In the present case Lieutenant ified professionally for promotion. It does not follow that he must be discharged. In the opinion of this office, he may be retained in the service in the grade of first lieutenant, or he may be discharged under the provisions of Section 9 of the Act of May 18, 1917 (40 Stat. 62), which authorizes the President to discharge all classes of officers therein indicated, including National Guard officers, "for any cause which, in the judgment of the President, would promote the public service." Upon his discharge under this provision Lieutenant would not be entitled to any extra pay; unless the discharge should be based upon the approved finding of a board which reports adversely to his continuance in the service, when he would be entitled to one month's pay and allowances. [Signed] James J. Mayes, Acting Judge Advocate General. 44. ASSESSMENT OF GROUP DAMAGES UNDER A. W. 105 1st Ind. War Department, J. A. G. O., May 29, 1918.-To the Division Judge Advocate, 40th Division, Camp Kearny, California. 1. In your letter of May 17, 1918, in the matter of assessment of damages against soldiers under the 105th Article of War (Comp. St. 1916, § 2308a), where the particular soldiers or the particular organization to which they belong can not be determined so that the assessment would have to be made against the entire command, you suggest the advisability of having the damages paid by the Division Exchange, the surplus of which belongs in the form of dividends to the men of the command. In this way, as you point out, much clerical work would be saved. 2. In a report of this office, dated April 6, 1918 (AGO-153, Misc. Div.), in a case where it was found impossible to determine the individual soldiers who were responsible for the damages, or the particular command to which they belonged, it was said: "Within reasonable limits, it matters little just how such assessments as are contemplated by Article 105 are collected. In some instances funds in small amounts have been raised by deduction from the funds of the post exchange." Owing to the practical difficulties in assessing the damages against the pay of the individual soldiers, of an entire command, it would seem that where the board finds that the damages were committed by soldiers belonging to the command, but is unable to more definitely locate the responsibility, the damages may be collected from the proceeds of the post exchange in which the entire command is interested. [Signed] James J. Mayes, Acting Judge Advocate General. 45. ALLOTMENT OF PAY FOR LIBERTY BONDS-EFFECT OF DE SERTION 4th Ind. War Department, J. A. G. O., May 29, 1918.-To the Adjutant General. 1. The opinion of this office is requested whether the desertion of a soldier works a forfeiture of the amount he has paid on Liberty Bonds through monthly allotments of portions of his army pay. This question is raised in connection with a letter transmitted to this Department by Senator Gore from Mr. J. T. Bowers, Castle, Oklahoma, who writes to Senator Gore in regard to this son, Riley W. Bowers, who, it appears, deserted February 24, 1918. Mr. Bowers states that his son had subscribed for a Liberty Bond in his (the father's) name, and had paid $60.00 on it. He inquires whether he can get the bond by paying the remainder. 2. Soldiers are permitted to make monthly allotments of their pay to apply on Liberty Bonds subscribed for by them by authority contained in Bulletin No. 41, W. D., July 12, 1917. The statutory authority for such action is section 16 of the Act of March 2, 1899 (30) Stat. 981 [Comp. St. 1916, § 2169]), which authorizes the Secretary of War "to permit enlisted men of the United States Army to make allotments of their pay, under such regulations as he may prescribe, for the support of their families or relatives, for their own savings, and for other purposes, during such time as they may be absent on distant duty, or under other circumstances warranting such action." The provisions of Bulletin No. 41, July 12, 1917, on this subject are as follows: "I. The provisions of paragraph 1347, Army Regulations, which restrict allotment privileges to soldiers serving within the boundaries of the United States to the support of their families and relatives are waived in the cases of enlisted men who desire to make allotments of pay in favor of banking institutions for the purpose of purchasing Liberty loan bonds. This waiver is made with the specific understanding that the men will not request discontinuance of the allotments prior to the date when they expire by limitation. The allotments will contain the notation 'Purchase of Liberty Loan Bond.'" It will be observed that the soldier is permitted to make an allotment of his pay in favor of banking institutions for the purchase of Liberty loan bonds. The money so allotted is not money deposited by the soldier with the United States, but is deposited to his credit in a bank through which his bond is purchased. After the money is paid over by the United States to the bank, the Government has no further jurisdiction over it as pay of a soldier, any more than it would have over an allotment paid to his wife or other dependent relative. The bank through which the subscription to the bond is made pays to the Government the deferred payments on the bond according to the Government's plan of payment, and continues the soldier's account until he pays for the bond in full or until some other proper disposition is made of the account. The bank is fully protected by the possession of the bond and the amount which the soldier has paid on it. While subscribers through the bank plan are supposed to make monthly payments of a stipulated percentage, it is not understood that failure to make payment at a designated time works a forfeiture of previous payments in favor of the bank. 3. For the reasons stated, this office is clearly of opinion that the desertion of a soldier does not work a forfeiture of the amount he has paid through allotments on Liberty bonds purchased through banks. In the present case it is recommended that Senator Gore be advised accordingly, with the further suggestion that Mr. Bowers be informed that he may apply to the bank through which the subscription to the Liberty bond was made for an adjustment. The Quartermaster Corps should furnish information as to the bank through which the bond was purchased. [Signed] James J. Mayes, Acting Judge Advocate General. 46. CIVIL ACTION BY SOLDIER AGAINST CIVILIAN War Department, J. A. G. O., June 1, 1918.-To the Adjutant General. 1. There is referred to this office a letter from the Hon. E. E. Denison, stating that a young man from his district, who is in the military service, was recently injured by a civilian driving an auto truck against him. Inquiry is made as to whether this soldier has a right to bring an action in the civil courts for damages while he is in the military service; whether he will lose any rights by delay in bringing such action; whether he is entitled to compensation as for injury received in the military service; and to whom and when he should make application for such compensation. 2. (a) There is no law or regulation preventing a soldier from bringing a civil action to recover for personal injuries, but it must be understood that under ordinary circumstances it would be difficult for him to secure a furlough for the purpose of attending court and prosecuting his claim therein. The private rights of individual soldiers can not, of course, be permitted to interfere with the requirements of military service. If it is apparent that this soldier will be physically incapacitated for service there can be no objection to his bringing the action while he is in the service and prosecuting it after his discharge therefrom. (b) Under section 205 of the Soldiers' and Sailors' Civil Relief Act (Pub. 103, 65th Cong.) it is expressly provided that the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by any person in the military service. Consequently this soldier would lose no rights by delaying to bring action for his personal injury. (c) While the soldier is in the military service, he is not entitled to any compensation under the terms of the War Risk Insurance Act of October 6, 1917 (40 Stat. 398). If, however, a discharge is granted to him on account of disability incurred in line of du |