appointed in any branch of the service under the provisions of this section except with the approval of the chief of such branch or officer acting as such. Sec. 24, act of June 3, 1916 (39 Stat. 182), as amended by sec. 24, act of June 4, 1920 (41 Stat. 771), 2278. Assignments to regiments.-That officers of grades in each arm of the service shall be assigned to regiments, and transferred from one regiment to another, as the interests of the service may require, by orders from the War Department, * * Sec. 2, act of Oct. 1, 1890 (26 Stat. 562). See par. 8, A. R. 1913; also notes to 2279, post. 2279. Promotion of officers.-That hereafter promotion to every grade in the Army below the rank of brigadier-general, throughout each arm, corps, or department of the service, shall, subject to the examination hereinafter provided for, be made according to seniority in the next lower grade of that arm, corps, or department: ** Sec. 1, act of Oct. 1, 1890 (26 Stat. 562). * and hereafter all vacancies occurring in the cavalry, artillery, and infantry above the grade of second lieutenant shall, subject to the examination now required by law, be filled by promotion according to seniority from the next lower grade in each arm. Sec. 2, act of Apr. 26, 1898 (30 Stat. 364). That vacancies in the grade of field officers and captains, created by this act, in the cavalry, artillery, and infantry shall be filled by promotion according to seniority in each branch, respectively. Sec. 28, act of Feb. 2, 1901 (31 Stat. 755). * * ** * Vacancies remaining in grades above the lowest which are not filled by such appointments shall be filled by promotion to date from July 1, 1920, in accordance with the provisions of section 24c hereof. Sec. 24, act of June 3, 1916 (39 Stat. 182), as amended by sec. 24, act of June 4, 1920 (41 Stat. 771). Up to and including June 30, 1920, except as otherwise provided herein, promotions shall continue to be made in accordance with law existing prior to the passage of this Act, and on the basis of the number heretofore authorized for each grade and branch. On and after July 1, 1920, vacancies in grades below that of brigadier general shall be filled by the promotion of officers in the order in which they stand on the promotion list, without regard to the branches in which they are commissioned. Existing laws providing for the examination of officers for promotion are hereby repealed, except those relating to physical examination, which shall continue to be required for promotion to all grades below that of brigadier general, and except also those governing the examination of officers of the Medical, Dental, and Veterinary Corps. Officers of said three Corps shall be examined in accordance with laws governing examination of officers of the Medical Corps, second lieutenants of the Veterinary Corps being subject to the same provisions as first lieutenants. Sec. 24c, added to the act of June 3, 1916, by scc. 24, act of June 4, 1920 (41 Stat. 774). The first three acts set out above are apparently superseded by the act last cited. Subsequent provisions that no more permanent appointments should be made in several of the staff corps and departments, and that officers already holding permanent appointments therein should be promoted according to seniority in the several grades, and any vacancy which could not be filled by such promotion should be filled by detail from the line of the Army were made by secs. 26, 27, act of Feb. 2, 1901, post, 2336. 2337, 2341, 2424, 2288. Sec. 24, above, provided that emergency officers might be commissioned in the Regular Army. See 2277, ante. Notes of Decisions. See, also (1881) 17 Op. Atty. Gen. 196. Selection of senior officer. The act of Oct. 1, 1890, does not make it obligatory upon the President to promote to a vacancy existing in the grade of lieutenant colonel the senior officer in the next lower grade, if, in his opinion. the record of the officer has been such as to indicate that he is disqualified for promotion. 30 Op. Atty. Gen. 177. No duty relating to the execution of the act of Oct. 1, 1890, requiring that promotion to every grade of the Army below the rank of brigadier general shall, subject to examination, be made according to seniority in the next lower grade, is imposed upon the Secretary of War and his subordinates, so as to warrant the issuance of an injunction restraining them from taking any action to procure the nomination by the President as Deputy Quartermaster General of any officer other than the one who seeks the injunctive relief and who claims to be entitled by reason of seniority to promotion to that office. Ray v. Garrison (Ct. App. D. C., 1914), 42 App. D. C. 34. More than one vacancy.-Where there are two or more offices of the same grade in a corps, each requiring a separate commission, on a vacancy occurring in such grade, the rules of promotion do not preclude the appointing power from determining to which of these offices the senior in the next grade below shall be appointed. An in cumbent of one of them may be transferred by appointment to another which is vacant without prejudicing the rights of such senior, whose claim to promotion would be fully met by appointing him to either. (1882) 17 Op. Atty. Gen. 465. Death of nominee.-It is essential to the creation of the office of major that there should be an appointment by the President in addition to a nomination to, and consent by, the Senate. Hence a commission as major of cavalry can not be lawfully issued in the name of an officer of the Army whose death occurred after he was nominated to that grade by the President, but prior to the time the nomination was confirmed by the Senate. (1911) 29 Op. Atty. Gen. 254. Enlisted men.-The President may assign enlisted men, who have passed the examination as candidates for commissions, to vacancies that may exist in any corps or arm of the service in which they have been commissioned, notwithstanding that additional lieutenants remain in other corps unassigned. (1897) 21 Op. Atty. Gen. 491. 2280. Classification of officers.---Immediately upon the passage of this Act, and in September of 1921 and every year thereafter, the President shall convene a board of not less than five general officers, which shall arrange all officers in two classes, namely: Class A, consisting of officers who should be retained in the service, and Class B, of officers who should not be retained in the service. Until otherwise finally classified, all officers shall be regarded as belonging to Class A, and shall be promoted according to the provisions of this Act to fill any vacancies which may occur prior to such final classification. Sec. 24b, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 773). 2281. Class B officers. No officer shall be finally classified in Class B until he shall have been given an opportunity to appear before a court of inquiry. In such court of inquiry he shall be furnished with a full copy of the official records upon which the proposed classification is based and shall be given an opportunity to present testimony in his own behalf. The record of such court of inquiry shall be forwarded to the final classification board for reconsideration of the case, and after such consideration the finding of said classification board shall be final and not subject to further revision except upon the order of the President. Sec. 24b, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 773). * * 2282. Promotion list.-For the purpose of establishing a more uniform system for the promotion of officers, based on equity, merit, and the interests of the Army as a whole, the Secretary of War shall cause to be prepared a promotion list, on which shall be carried the names of all officers of the Regular Army and Philippine Scouts below the grade of colonel, except officers of the Medical Department, chaplains, professors, the military storekeeper and certain second lieutenants of the Quartermaster Corps hereinafter specified. The names on the list shall be arranged, in general, so that the first name on the list shall be that of the officer having the longest commissioned service; the second name that of the officer having the next longest commissioned service, and so on. In computations for the purpose of determining the position of officers on the promotion list there shall be credited all active commissioned service in the Army performed while under appointment from the United States Government, whether in the Regular, provisional, or temporary forces, except service under a reserve commission while in attendance at a school or camp for the training of candidates for commission; also commissioned service in the National Guard while in active service since April 6, 1917, under a call by the President; and also commissioned service in the Marine Corps when detached for service with the Army by order of the President. In determining position on the promotion list, and relative rank, commissioned service in the Regular Army or the Philippine Scouts, if continuous to the present time, shall be counted as having begun on the date of original commission. The original promotion list shall be formed by a board of officers appointed by the Secretary of War, consisting of one colonel of each of six branches of the service in which officers are permanently commissioned under the terms of this Act, and one officer who, as a member of the personnel branch of the General Staff, has made a special study of merging the present promotion lists into a single list. The steps in the formation of the original promotion list shall be as follows: First, officers below the grade of colonel in the Corps of Engineers, Signal Corps, Infantry, Cavalry, Field Artillery, Coast Artillery Corps, Porto Rico Regiment, and Philippine Scouts, who were originally appointed in the Regular Army or Philippine Scouts prior to April 6, 1917, shall be arranged without changing the present order of officers on the lineal lists of their own branches, but otherwise as nearly as practicable according to length of commissioned service. The following shall be omitted: (a) Officers who, as a result of voluntary transfer, occupy positions on the lineal list other than those they would have held if their original commissions had been in their present branches; (b) Officers of other branches appointed in the Field Artillery or the Coast Artillery Corps to fill vacancies created by the Act approved January 25, 1907; (c) Officers appointed in the Regular Army since January 1, 1903, while serving as officers of the Porto Rico Provisional Regiment of Infantry or Philippine Scouts ; (d) Former officers of the Regular Army or Philippine Scouts who have been reappointed in these forces and who are now below normally placed officers of less commissioned service than theirs. Officers of classes (a), (b), and (c) shall be placed on the list in the positions they would have occupied if they had remained in their original branches of the service. Officers of class (d) shall be placed on the list in the position that would normally be occupied by an officer of continuous service equal to the total active commissioned service of such officers in the Army. Second, officers of the Judge Advocate General's Department, Quartermaster Corps, and Ordnance Department shall be placed on the list according to length of commissioned service, except those second lieutenants of the Quartermaster Corps who are found not qualified for promotion as provided in section 24b hereof. Third, captains and lieutenants of the Regular Army and Philippine Scouts, originally appointed since April 6, 1917, shall be arranged among themselves according to commissioned service rendered prior to November 11, 1918, and shall be placed at the foot of the list as prepared to this point. Fourth, persons to be appointed as captains or lieutenants under the provisions of section 24, hereof, shall be placed according to commissioned service rendered prior to November 11, 1918, among the officers referred to in the next preceding clause; and where such commissioned service is equal, officers now in the Regular Army shall precede persons to be appointed under the provisions of this Act, and the latter shall be arranged according to age. Fifth, persons appointed as lieutenant colonels or majors under the provisions of section 24 hereof, shall be placed immediately below all officers of the Regular Army who, on July 1, 1920, are promoted to those grades respectively under the provisions of section 24 hereof: Provided, That the board charged with the preparation of the promotion list may in its discretion, assign to any such officer a position on the list higher than that to which he would otherwise be entitled, but not such as to place him above any officer of greater age, whose commissioned service commenced prior to April 6, 1917, and who would precede him on the list under the general provisions of this section. Any former officer of the Regular Army and any retired officer who may hereafter be appointed to the active list in the manner provided by law shall be placed on the promotion list in accordance with his total active commissioned service; except that former officers appointed to field grades on July 1, 1920, under the provisions of section 24, may be placed as provided in the next preceding paragraph of this section. A reserve judge advocate appointed in the Regular Army shall be placed as provided in section 24c. Other officers on original appointment shall be placed at the foot of the list. The place of any officer on the promotion list once established shall not thereafter be changed, except as the result of the sentence of a court-martial. Sec. 24a, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 771-773). 2283. Examination anterior to promotion.-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 times 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 examination for such grade prior to the passage of this act: And provided, That if any officer fails to pass a satisfactory examination and is reported unfit for promotion, the officer next below him in rank, having passed said examination, shall receive the promotion: And provided, That should the officer fail in his physical examination, and be 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 entitled him to be promoted; but if he should fail for any other reason he shall be suspended from promotion for one year, when he shall be reexamined, and in case of failure on such reexamination he shall be honorably discharged with one year's pay from the Army: Sec. 3, act of Oct. 1, 1890 (26 Stat. 562). But see 2279, ante, and 2406, post. Notes of Decisions. Time of examinations.-It is not the purpose of the act to have the examinations take place so long subsequent to the occurring of the right to promotion as to be affected by intervening rights and obligations. (1892) 20 Op. Atty. Gen. 433. Jurisdiction and powers of board.-The proceedings before the examining board, convened under this act, enacted to provide for the promotion or retirement of Army officers, which resulted in the discharge of an officer with one year's pay, by order of the President, were not bad without jurisdiction, and hence without due process of law, because the board had previously made an order that such officer was then physically incapacitated for service from disability contracted in line of duty, but had a reasonable hope of recovery, and that he could not with safety proceed with his examination, since such order was merely provisional, and not a final decision, which, under the law, would have entitled him to be retired with threequarters pay for life. Reaves v. Ainsworth (1911), 31 Sup. Ct. 230, 219 U. S. 296, 55 L. Ed. 225, affirming judgment (1906), 28 App. D. C. 157. A board constituted as a board of examination for promotion can not be invested with power of a retiring board, which the law requires to be differently constituted. (1896) 21 Op. Atty. Gen. 385. Findings of board.-The findings of a retiring board on the question of disability are equivalent to finding of board of promotion. Cloud v. U. S. (1907), 43 Ct. C 69. Executive orders accomplish retirement only as they apply to particular cases, and when not in conflict with law. It is the law, and not the recommendations of a retiring board, though supplemented by the approval of the President, which fixes an officer's status and consequent right to pay; and where the decision will turn exclusively upon the proper construction of a statute, an Executive order is not final, and the Court of Claims has jurisdiction. Cloud v. U. S. (1907), 43 Ct. Cl. 69. Approval of findings of board. The conclusions of a board, acting under this section, must, before being carried into execution, have the approval of the commander in chief or some one repre senting him. Such approval need not, however, be expressed in any formal language, but the findings must be submitted to the Secretary of War for consideration. He may approve them, either by expressly noting his approval or by promulgating the orders needed to give effect to the determination of the board. (1909) 27 Op. Atty. Gen. 193. See, also (1896) 21 Op. Atty. Gen. 385. Reexamination.-Where an officer has been examined to determine his fitness for promotion, and he has been found to be suffering from certain physical disabilities, incapacitating him for active service, and he recovers from such disabilities, the Secretary of War may allow him a reexamination for promotion. (1896) 21 Op. Atty. Gen. 385. And where an officer was found by a board of examination to be physically qualified for promotion, but deficient in professional qualifications, which finding was approved by the board of review, and it afterwards developed that he was at the time of his examination suffering from a disability incurred in the line of duty which disqualified him for promotion, the Secretary of War may order a new physical examination. (1909) 27 Op. Atty. Gen. 193. Certiorari. Errors and injustice done in the proceedings before the examining board convened under the authority of this act, enacted to provide for the promotion or retirement of Army officers which resulted in the discharge of an officer with one year's pay, by an order made by the President, in the exercise of his reserved power to review the proceedings and decisions of such board, can not be corrected by the courts of certiorari. Reaves v. Ainsworth (1911), 31 Sup. Ct. 230, 219 U. S. 296, 55 L. Ed. 225, affirming judgment (1906), 28 App. D. C. 157. Right to retirement.-The privilege of retirement, which an officer has "with the rank to which his seniority entitled him to be promoted," given by this section, is limited to cases where the officer failed in his physical examination only. Steinmetz v. U. S. (1898), 33 Ct. Cl. 404. Rank and pay on retirement.- Where an officer examined for promotion is found incapacitated by reason of physical disability contracted in the line of his duty, |