vice for a profession. He has simply responded to a patriotic call, and expects, when the war is over, to return to civil life. His term of military service is uncertain and contingent. He may be taken from his civil duties for a few months, for a year, for two years at the most. The Government does not need nor demand a complete and final severance of his relations with civil life. He may be able to make arrangements to bridge over his absence, and on his return resume his former work. Whether he is to be permitted to do this, and retain a civil office during a temporary absence, is a matter for determination by those to whom he is accountable for the proper discharge of the duties of such office. It does not concern your Department nor this Department. Very respectfully, JOHN K. RICHARDS, Approved. JOHN W. GRIGGS. ARMY-PROMOTIONS-ENLISTED MEN. Subsequent to the examination of a candidate for promotion to a second lieutenancy in the Army under the act of July 30, 1892, and the awarding to him of a certificate of eligibility, he was subjected to a medical examination which developed the fact that he was suffering from a constitutional disease. There was nothing to show that the disease was not curable or that it permanently disabled the applicant for military service, while from subsequent reports it did appear that he was only temporarily disabled. Held, in the absence of a definite finding or ascertainment of fact that the candidate was physically disabled or disqualified to perform military service, he was entitled to all the benefits arising from such a certificate of eligibility. Semble, although a soldier is primarily entitled to promotion by reason of a certificate of eligibility, if he is in fact disqualified to perform military service by reason of physical disability, this would operate to disbar him. DEPARTMENT OF JUSTICE, June 16, 1898. SIR: I have the honor to acknowledge receipt of a letter addressed to the War Department by A. Dallas Sydenham, late sergeant in Company B, First United States Infantry, claiming the right to be appointed to the position of second lieutenant in the Army under the provisions of the act of July 30, 1892. The letter is referred to me by you with the request indorsed thereon for an opinion on the question presented, and you invite my attention to the views of the Judge-Advocate General of the Army, also indorsed upon Sydenham's letter. The facts in this case are as follows: Sydenham enlisted in the Army as a private soldier at the age of 22 years and 9 months, on the 13th day of August, 1891, for the term of five years. On the 2d day of August, 1892, he was made a corporal, and on the 2d day of August, 1893, raised to sergeant. On the 2d and 9th days of September, 1895, the board of examiners, under the provisions of the act of July 30, 1892, met, and Sydenham was examined by said board, passed the final examination on the last-named date, and on the 31st of October, 1895, was awarded a certificate of eligibility by the board. If there were not other facts to enter into the consideration of this case, it would come within the scope of the opinion recently rendered you in the cases of James V. Heidt and John Robertson. But the opinion of the Judge-AdvocateGeneral, indorsed upon Sydenham's application, directs my attention to another matter, and that is as to the effect of the action of a board of medical examiners, with reference to Sydenham's physical condition, which was had after he was awarded the certificate of eligibility and before the expiration of his term of service in the Army. The facts in regard to this examination, as I gather them from the papers on file inclosed by you to me, are as follows: On the 22d of January, 1896, Brigadier-General Forsyth, commanding the Department of California, with headquarters at San Francisco, issued a special order as follows: "A board of medical officers is appointed to meet at 11 o'clock a. m. on Friday, the 24th instant, or as soon thereafter as practicable, at Angel Island, California, for the purpose of examining Candidate Sergeant Atwood D. Sydenham, Company B, First Infantry, and reporting the nature of the disease for which he is now under medical treatment." The detail for this board consisted of three army surgeons, whose names appear among the papers. The report of the board, made after a second examination on January 30, 1896, with a copy of the above order attached, is on file, and from it I find that, in the opinion of the surgeons, Sydenham was suffering from a constitutional disease evidenced by certain symptoms detailed in the report. Nothing is said in the report as to whether the disease was curable or whether it had the effect to permanently disable Sydenham for military service. On the other hand, events occurring subsequent to the examination and report of the surgeons tend to show that the soldier was only temporarily disabled to do military duty. At the time of the examination and report Sydenham was undergoing treatment in the hospital at Angel Island. On March 7, 1896, following the report, the surgeon at Angel Island hospital states that under treatment the condition of Sydenham has steadily improved, and although not cured he could return to duty at any time. On the 5th of April, 1896, Sydenham returned to duty with his company at Benicia Barracks, and on July 9, 1896, the surgeon at Benicia Barracks reports him as much improved. Sydenham continued to do active duty with his company from April 5, 1896, to August 12, 1896, and on the latter date, his term of service having expired, he received an honorable discharge, on which I find the following certifications: "Character: Excellent. (No objection to his being reenlisted known to exist.) Recommendations: Temperate and a very capable noncommissioned officer. Physical condition when discharged: Good. Remarks: Service honest and faithful. In the opinion of the Judge-Advocate-General, to which you direct my attention, I find the following: "The officers of the Medical Department of the Army in their diagnosis of and report on this case were acting within the scope of their established powers and duties, and it was entirely legal and according to usage for the Secretary of War to be governed by their professional conclusions. When, after an enlisted man has passed his final examination for appointment, he becomes physically disqualified for it, or an already existing disqualification is discovered or reported, the Secretary of War may, in my opinion (and I think it would be his duty), cause him to be passed over. To give a construction to the legislation which would necessitate the appointment of persons who might be entirely physically incapacitated would not be reasonable.” From this extract it will be readily seen that the opinion of the Judge-Advocate-General, adverse to Sydenham, was based upon the assumption that the medical board had found as a fact that Sydenham was physically disabled to perform military service. We have only to refer to the report of the board of surgeons to ascertain that this assumption is not well founded. The report is to the effect that the examining surgeons are of the opinion that Sydenham was at the time suffering from a constitutional disease, but the surgeons do not find this as a fact; nor do they say that, in case they were absolutely certain that he was afflicted with the disease indicated, it physically disqualified him to perform military service. As it is, the weight of evidence is favorable to the conclusion that Sydenham is physically able to perform military duty. Therefore, it is my opinion that there has been no definite or conclusive finding or ascertainment of fact that Sydenham was physically disabled or disqualified to perform military service such as to deprive him of the benefits to which he was entitled under the certificate of eligibility awarded to him under the provisions of the act of July 30, 1892. However, I do not think that the law contemplates the commissioning of men who are physically disabled as officers in the Army, and, although Sydenham is primarily entitled to promotion by reason of the certificate of eligibility which he holds, yet, if he is in fact disqualified to perform military service by reason of physical disability, this would seem to disbar him. I would advise, therefore, that the question as to Sydenham's physical condition may be finally determined by an examination now to be had by a legally constituted army medical board, and if, upon such examination, he is found to be physically disqualified to perform military service, his appointment as second lieutenant should be withheld. Very respectfully, The SECRETARY OF WAR. JOHN W. GRIGGS. ARMY OFFICERS-PAY. The phrase "troops operating against an enemy" as used in section 7 of the act of April 26, 1898, was intended to apply to all instances where the troops of the United States are assembled into separate bodies, such as regiments, brigades, divisions, or corps, for the purpose of carrying on and bringing to a conclusion the war with Spain. If the operations of the troops are with the direct object of assisting in the military measures of the Government for subduing the forces of Spain, they can, within the reasonable intendment of this act, be considered as operating against an enemy, although such operations may not be direct and are in the nature of necessary component steps, though remote, in one great military objective. Any troops assembled at camps in the United States for the present war purposes can properly be considered as operating against an enemy, although their present service is confined to the ordinary routine of camp life. DEPARTMENT OF JUSTICE, June 17, 1898. SIR: I have the honor to acknowledge the receipt of your communication of June 8, referring to me the letter of Paymaster-General Stanton requesting my opinion as to the proper construction of one of the provisions of section 7 of the act entitled "An act for the better organization of the line of the Army of the United States," approved April 26, 1898. The clause referred to upon which an opinion is desired is as follows: "That in time of war, every officer serving with troops operating against an enemy, who shall exercise under assignment in orders, issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive and allowances appropriate to the command so the pay exercised." The the particular point upon which you desire instruction is proper meaning of the phrase "troops operating against an enemy. The act by its expressed terms is made applicable only in time of war. At the date of the passage of the act this country was actually at war with Spain, and by act of Congress approved April 25, 1898, it was so declared. By act |