thority contained in section 9 of the Selective Service Act (Bulletin 32, W. D., 1917), since a comparison of the regulation with the statute shows that the former is not so broad as the latter in respect to the officers who may convene an efficiency board in this class of cases.

The Convening Order.

3. The order convening an efficiency board must show the authority under which it is convened. It should be in form approximately as follows:

"Under the authority of (section 9, Act of May 18, 1917) (— -) a board of officers is hereby appointed to meet at the call of the senior member thereof to examine into and report upon the (capacity, qualification, conduct and efficiency) of (such officers as may be ordered before it) (1st Lieut. N. A.) etc."

The order must, of course, show that it was issued by one having authority to do so.

If such an order as that outlined above is issued to examine into and report upon such officers as may be ordered before it, without designating any particular officer, by one who is not "the general commanding any division or higher tactical organization or territorial department," the order is ultra vires and void. The issuance of such an order would constitute a jurisdictional error and a board convened thereby would be without authority to function as an efficiency board. Its proceedings should properly be declared void and of no effect. Such an illegally constituted board could not lawfully function in a particular case even though the officer referring the same to the board for its consideration would have authority under some other provision of law or regulation to convene a lawful board for that particular case. And the same holding would have to be made if "the general commanding any division or higher tactical organization or territorial department" should order an officer of the Reserve Corps, before a board convened under section 9, Selective Service Act (Bulletin 32, W. D., 1917) to pass generally upon such officers as may be ordered before it. In either case, however, the legality of an executed discharge by the President cannot afterwards be questioned, because of the full and summary power conferred upon him by the statute and hereinafter to be discussed.

If, however, a commanding officer acting within his legal authority convenes an efficiency board to pass upon a particular officer and erroneously cites section 9, Act of May 18, 1917, or some other inapplicable provision of law or regulation as authority for his action, it should be held that, having authority to convene a board in the particular case, an erroneous citation of the authority under which he acts, while it would constitute an irregularity, would not amount to a jurisdictional defect. The report of such a board should not, therefore, be held invalid or void, but may be properly approved and its findings carried into execution. In this case, the order will show upon its face both the fact of jurisdiction to convene the board and the nature of the error committed, which latter may be corrected by proper order or by a notation or certificate by the convening au

thority at the time he passes upon the proceedings, or subsequently thereto, that the board was in fact convened under proper authority, citing it.

Summary Dismissal by the President.

4. Under section 9 of the Act of May 18, 1917, "the President. * * * 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." Under section 37 of the National Defense Act (Comp. St. 1916, § 1881a), he may terminate the commission of an officer of the Reserve Corps in his discretion.

Having reference to these provisions of law, it has been suggested that in cases where an indorsement from the Adjutant General's office has erroneously directed an officer of one class to be brought before an efficiency board under the authority of a statute or regulation pertaining to some other class, or in cases where a convening authority has acted beyond his jurisdiction in convening efficiency boards, the boards may be regarded as extra legal but their reports submitted nevertheless to the President as advice upon which he may act in terminating the commission of an officer under the statutory authority just referred to. Beyond question the President, should he so desire, in summarily discharging an officer under section 9 of the Selective Service Act or a Reserve Corps Officer under section 37 of the National Defense Act, may, in the one case, base his action upon any "cause which in his judgment would promote the public service," and, in the other, upon any reason which appeals to or satisfies his discretion. In either case, he may, should he so desire, base his action upon the report of a board which may have acted wholly without authority in passing upon the case of the particular officer in question.

Every officer other than the President whose duty it is to convene efficiency boards or to pass upon their proceedings should, however, exercise every possible care to secure regularity in all that has to do with their organization, investigations and reports. If proceedings are initiated by a commanding general looking to the termination of an officer's commission through the report of an efficiency. board, both the organization of the board and its proceedings throughout should be made so regular as to leave no reason or necessity for asking the President to accept a report based upon irregular or void proceedings as advice upon which to terminate an officer's commission through the summary power vested in him. A forceful reason for this suggestion is found in the fact that the statute (section 9, Act of May 18, 1917) confers upon officers who are discharged upon the approved recommendations of an efficiency board, one month's pay and allowances, while for those who are summarily dismissed by the President, no such benefits are provided. This fact suggests that the method of terminating commissions by summary dismissals was intended by Congress to meet the unusual case where a sufficient reason presents itself to the President to induce him to order an officer's discharge without the advice of an efficiency board, rather than to enable the President to in

terpose his summary power to complete the action in a case in which an efficiency board has been convened without authority or in which it has acted beyond its jurisdiction. As indicated above, however, the legality of the discharge cannot be questioned even in a case of this kind.

If a commanding general should receive from the War Department an order to send an officer before an efficiency board and such order conflicts with the statute or regulation; he should invite the attention of the War Department to this conflict and ask for further instructions or, in case of urgency, should act under the statute or regulation upon the assumption that the order in question had erroneously designated the authority under which a board should be convened in the particular case.

The commanding officer who discovers from the proceedings of a board in a particular case that it has acted therein without jurisdiction, should not hesitate to disapprove such proceedings and to direct that the officer be passed upon by a properly constituted board. If he discovers that the proceedings of the board are merely irregular as hereinbefore pointed out, he should approve such proceedings, should his discretion so determine, and forward the same to the War Department for its action.

Form of Record.

5. Paragraph 1 of section 7, G. O. 76, W. D., 1917, prescribes that the proceedings in the case of an efficiency board convened under the authority of that section should be similar to the proceedings of a retiring board. The exact form of proceedings of efficiency boards convened under any other authority is not prescribed. It is obvious, however, that the procedure should be essentially the same in all cases. In an approved opinion of this office under date of September 14, 1916, relative to procedure of efficiency boards convened under section 77, National Defense Act (Comp. St. 1916, § 30440), an outline of the procedure which might properly be followed by such boards was given. It is believed that the procedure there outlined might properly be adopted for the purpose of governing all efficiency boards under whatsoever authority convened. In that opinion it was stated that the proceedings of the efficiency board should include:

"(a) The order convening the board;

"(b) The organization of the board, including the place and date and the names of the members present and absent;

"(c) The full name, rank and organization of the officer whose case is before the board for investigation as to his fitness for service, and a statement to the effect that such officer appeared before the board; was permitted to challenge for cause; was permitted to be present during the hearing of all evidence; and was afforded opportunity to be represented by counsel, to question adverse witnesses, to submit evidence, and to make a statement; either in his proper person or by counsel;

"(d) The full name, rank and organization of each witness; a statement that each witness was duly sworn; and a transcript or synopsis of the testimony given by each witness;

"(e) True copies of all written evidence considered by the board; "(f) A transcript or synopsis of any evidence given or statement made by the officer undergoing the investigation, and a copy or synopsis of any argument made by counsel;

"(g) The findings and recommendation of the board;

"(h) A minority report by any member who dissents from the finding of the board."

6. The question of the regularity and sufficiency of the record. should be passed upon in each individual case in the light of the foregoing general statements.

CWM. [Signed] James J. Mayes, Acting Judge Advocate General.

54. RELATIVE RANK OF TEMPORARY AND PERMANENT COMMISSIONS

2d Ind.

War Dept., J. A. G. O., July 18, 1918.—To the Adjutant General. 1. The accompanying papers present the question whether temporary 1st Lieut. Roland M. Glenn, 22d Infantry, whose commission as such dates from October 26, 1917, will, if he accepts a provisional commission as first lieutenant, dated November 5, 1917, be held to have vacated his temporary commission and be outranked by his present juniors who now hold temporary commissions of even date with his own.

This specific case, informal inquiry at the office of the Adjutant General discloses, is typical of many others; and the decision herein must, therefore, be determinative of the broad question of whether the senior temporary officer in any grade of the Regular Army who accepts a permanent commission in the same grade must become the junior of all officers holding temporary commissions in that grade and in the same arm, staff corps, or department whose temporary commissions antedate his permanent commission but who are his juniors in the Regular Army.

2. The instant case requires a consideration of two previous opinions of this office. In an opinion rendered by this office under date of August 30, 1917 (J. A. G. 64.311) the following was said:

"In my judgment one may not hold two offices in the same military establishment without specific legislative authority therefor. This may be regarded as inferentially established by the fact that Congress has deemed it necessary to protect the commission of an officer in the Regular service when appointed to any other force in the Army of the United States. The incompatibility existing between two officers in the same military establishment is obvious. It is settled that two offices are incompatible when a performance of the duties of the one will prevent or conflict with a performance of the duties of the other, or when the holding of two is contrary to the policy of the law. * * *

"It is my opinion, therefore, except in so far as the statute may give express protection, an officer in one of the component forces of the United States may not hold a position in another such com

ponent; and that if he be appointed to any such second office, he thereby vacates his former commission."

The opinion just referred to goes to the extent of holding that an officer in one of the component forces of the United States may not hold a commission in another such component. It does not hold, for that point is not involved in the facts of that case, that the same officer may not hold both a permanent and a temporary commission in the same grade at one and the same time although there is language in that opinion which points to this conclusion. The opinion. indicates, however, that one may hold two commissions whenever there is legislative authority therefor.

The other opinion to which reference is made is an opinion under date of September 4, 1917 (J. A. G. 82.121) construing that part of section 8 of the Selective Service Act (Act of May 18, 1917 [40 Stat. 81]) considered in connection with section 114 of the National Defense Act governing the subject of promotions to fill temporary vacancies in the Regular Army which occur by reason of the appointment of Regular Army officers to higher grades in the National Army. In the course of that opinion the following was stated:

"It is impossible to foresee and discuss every contingency that may arise in the administration of this law under the construction which I have just indicated will be the proper one to adopt; but it is believed that the difficulties under this plan will be few in comparison with those that would inevitably arise under the alternative construction suggested and that none of those that do arise will prove to be insuperable. It may be proper, however, in addition to what has been stated, to refer to the matter of permanent promotions in the Regular Army. When an officer becomes entitled to a permanent promotion in the Regular Army he must, of course, accept the same. If he is serving as a colonel, let us say, in the National Army and becomes a permanent colonel in the Regular Army, he should ordinarily be continued in service in the National Army. This could involve no impairment of his rank since his commission as a colonel in the National Army would antedate his commission as a permanent colonel in the Regular Army. If, however, an officer is serving as a temporary colonel in the Regular Army, and is promoted to be a permanent colonel therein, it may well be that his commission as a permanent colonel will be subsequent to that held by other temporary colonels who are his juniors in his arm, staff corps, or department. It is my view that the statute intended to protect officers of the Regular Army against a contingency of this kind when it provided that they should not be 'prejudiced in their relative or lineal standing in the Regular Army.' I think it would be a fair construction of this language to hold that Congress intended that no officer of the Regular Army, serving under a commission therein, shall be required to serve with lower rank than that held by a junior in his arm, staff corps, or department and who is also serving under a commission therein. This situation can be obviated by giving the officer who receives the permanent promotion a constructive date of rank as of the date of the temporary commission which he vacates to accept his permanent commission. This may be found necessary to maintain