2121. The Sundry Civil Act of March 3, 1899 (30 Stats., 1108), contains the provision "that no railroad shall be permitted upon the right of way which may have been acquired by the United States to a national cemetery, or to encroach upon any roads or walks constructed thereon, and maintained by the United States." Id that this provision was intended to prevent the occupation of and encroachment upon the rights of way or roads named therein; but did not forbid the granting of permission to lay a railroad track across a government roadway leading to a national cemetery. Card 7466, December, 1899.

RANK.

2122. Where the appointment or commission of an officer specifies a particular date from which he is to rank, which is prior to the date of the formal execution of the instrument, it is the former date which fixes his relative rank in the army. XXIII, 439, April, 1867.

2123. Under the existing statute law, an officer of the army can claim rank or precedence by virtue of service as a colunteer officer only as between himself and another officer of the same grade and date of appointment or commission-the case provided for in Sec. 1219, Rev. Sts. The 123d Article of War is operative to regulate the relative rank, &c. of regular and volunteer officers only when serving together in the army-as during the civil war, for example-as distinctive classes of commissioned officers. XLI, 238, May, 1878.

2124. Held that, in fixing his rank in relation to another officer of the same grade and date of commission, under Sec. 1219, Rev. Sts., an officer was entitled to have taken into account a period of service rendered by him "as a commissioned officer of the United States" in the volunteer force during the Mexican war; the provision of the second sentence of the section not being viewed as limiting the application of the general and comprehensive provision of the first sentence. XXXIX, 609, July, 1878.

2125. In fixing the relative rank of officers of the same grade and date of appointment, by reference to time of service, under Sec. 1219, Rev. Sts., it is the time of service as a commissioned officer in the army that is alone to be taken into consideration. Service in the navy is not to be computed. 40, 51, March, 1890. A second lieutenant of infantry, appointed in the army, October 10, 1883, claimed, by

Except as between himself and an officer of the grade whose appointment or commission gives rank from the same date as does his own, in which case the rule prescribed by Sec. 1219, Rev. Sts., governs.

2 See, to a similar effect, an opinion of the Attorney General, in 15 Opins. 330. See also note 1 to § 408, ante.

71359-09- -39

reason of service as a cadet of the Naval Academy from 1876 to 1883, a precedence over all second lieutenants of his date of appointment, and the right to have his name placed in the register accordingly. Held that the claim should be disallowed, since a naval cadet is not a commissioned officer and not within the application of Sec. 1219, Rev. Sts. LV, 672, June, 1888.

2126. In the case of two brigadier generals of volunteers, officers of the regular army, whose commissions bore the same date, and whose prior service as commissioned officers had been continuous, held that their relative rank should be determined by the dates of their original entry into service, and this under the practice of the War Department is determined by the date of acceptance of the original commission. Card 4254, June, 1898.

2127. The general rule is that relative rank in the army is regulated by the actual rank held by the officer in his corps, and this by the date given him in his commission in such corps. If an officer has, immediately preceding his present commission, held the same rank in another corps, this will not give him increased rank in his present corps, nor corresponding relative rank. To this rule a noticeable exception is presented by par. 42, A. R., relating to transfers of officers, as amended by G. O. 47 of 1891. This order does not restrict the officer's rank to the rank of his present commission, but gives him the benefit of prior rank back to the date of the commission of the junior officer previous to the transfer. The order seems to be based upon the intention of giving officers the benefit of their previous rank so far as it can be done without injury to others, and yet this intention has been practically limited to the case of voluntary transfers or exchanges. 60, 210, June, 1893. (See 52 A. R. of 1901.) 2128. An officer was appointed second lieutenant of an infantry regiment, June 15, 1868, and this date fixed also his relative rank as to other second lieutenants of the army. Under the act of March 3, 1869, consolidating his regiment with another infantry regiment, he became supernumerary, and was assigned to a cavalry regiment, July 14, 1869, and recommissioned as a cavalry lieutenant as of the latter date. Held that he should have been so recommissioned as of the date of his original appointment.' 38, 295, February, 1890.

2129. The relative rank of officers of the same grade and date of appointment or commission is determined "by the time which each may have actually served as a commissioned officer", when these periods are unequal. This being the rule under Sec. 1219, Rev. Sts., and army

'It was held otherwise in this case by the Attorney General (16 Opins. At. Gen. 291) whose views were not concurred in.

regulations, it should not be set aside by assignment of dates in the nomination and confirmation. ' 1 Cards 2805, December, 1896; 7449, December, 1899; 7790, 7869, March and April, 1900.

2130. Fifteen candidates for assistant surgeons in the regular army having passed the required examination were, on December 13th, 1898, nominated to the Senate, and, on Dec. 24th following, were duly commissioned with rank as first lieutenants from Dec. 12, 1898. There was examined with them another candidate who passed in professional requirements, but failed physically. He was subsequently reexamined physically and on June 14, 1899, was given a recess appointment as assistant surgeon with rank as first lieutenant from that date. On a recommendation that, if practicable, he be commissioned with the rank of first lieutenant to date from Dec. 12th, 1898, and that his name be placed on the register in accordance with the merit roll on file in the Surgeon General's Office, held, that it would require an act of Congress to carry such recommendation into effect. Card 7449, December, 1899. 2131. The act of March 3, 1899, making appropriations for the support of the regular and volunteer army, appropriated a certain sum to pay the company and regimental officers of the special immune regiments (volunteer army of 1898) for certain time that elapsed after they had reported for duty and prior to their being commissioned. Held that this time should not be counted as part of the time which each may have served as a commissioned officer, in fixing relative rank between officers of the same grade and date of appointment and commission under sec. 1219, Revised Statutes and par. 11, of the Army Regulations. They were not "commissioned officers of the United States" prior to being "commissioned ;" and therefore no time prior to their being commissioned should be counted as time actually served as commissioned officers of the United States. The appropriation act simply provided for their being paid for time lost by them after reporting at the place of rendezvous and prior to their becoming officers of the army; was indeed a recognition of the fact that they were not in the service during the period named. Card 7050, September, 1899; October, 1900.

RECOMMENDATION.

2132. A recommendation of the accused to clemency is no part of the official record of the trial, or of the proceedings of the court as

It was held however by the Secretary of War under date of March 12, 1900, that where the date of rank as given in the commission had been fixed by the joint action of the President and Senate, it could not be changed except by authority of an act of Congress.

2 Compare opinion of Atty. Genl., dated Feb. 27, 1901.

such, but is merely the personal act of the members who sign it. It should not therefore be incorporated with the record proper, but should be appended to or transmitted with the same as a separate and independent paper. XII, 572, September, 1865.

2133. Where the members of a court martial who had joined in a recommendation which had been appended to the record and regularly transmitted to the reviewing authority, applied to have the same withdrawn on the ground that, because of information since received, their opinions had been changed, advised that such a proceeding would be exceptional and irregular, and that the preferable course would be to file with the record the application and statement of the members so that the same might be referred to and considered in connection with the recommendation. XXXIII, 580, December, 1872.

2134. It is of course always discretionary with a member of a court martial whether he will make or join in a recommendation to clemency. Members however will in general do well to refrain from subscribing recommendations where the testimony on the trial as to the merits of the case or the character of the accused fails clearly to justify a remission or mitigation of the punishment. Weak and ill-considered recommendations have not unfrequently given rise to severe criticism on the part of reviewing officers. Thus in G. C. M. O. 92, Hdqrs. of Army, 1867, the Secretary of War expresses himself as "surprised to find that any officer of the court could recommend remission or commutation of the sentence of dismissal in a case where the conduct of the officer tried was as reprehensible as that of" the accused.1 Members, in offering recommendations should be careful to state the specific grounds upon which they base the same. XXXIII, 418, October, 1872. 2135. Members of a court martial, desiring to recommend an accused to clemency need not all sign the same statement. There may be, in any case, two or more separate recommendations each signed by different members. XXXVII, 121, November, 1875.

3

1 In G. O. 36 of 1843, the Secretary of War, Hon. J. M. Porter, in reviewing a case, remarks as follows: "The practice of the members of a court martial first finding an officer guilty, and then recommending him for clemency, is to be deprecated. It is an endeavor, too frequently made, to transfer the responsibility of their finding to the Department of War when it should rest upon the court itself." And see G. O. 342, War Dept., 1863; G. C. M. O. 27, id. 1871.

2 In G. O. 70, Dept. of Dakota, 1870, Maj. Gen. Hancock, the reviewing authority, observes: "As the members of the court are silent with regard to the considerations by which they were influenced in making their recommendation in the prisoner's behalf, it is impossible for the reviewing authority to determine whether their reasons for making the recommendation were sufficient to justify a mitigation of the sentence. No consideration can, therefore, be paid to it. The sentence is approved, and will be duly carried into execution."

3 A case in which there were two recommendations-one signed by a single member-is published and remarked upon in G. C. M. O. 92, War Department, 1875.

RECORD OF COURT MARTIAL.

2136. It is clearly contemplated by the statute law (see the 113th and 114th Articles of War, taken from the old 90th Article; also the later provision incorporated in Sec. 1199, Rev. Sts.) that a court martial shall make a formal record of its proceedings, and the Army Regulations and Court-Martial Manual direct as to the substance and form of the record in certain particulars. Upon such basis, the record of a court martial has come to be, in our practice, a full report and recital of the details of the trial in each case, including all the testimony introduced. As to the character, effect and proper contents of a record of a military court (the same rules being held to apply in the main to records of garrison and regimental as to those of general courts-XXIV, 540, May, 1867; XXVII, 647, May, 1869; XXXII, 130, November, 1871), the Judge-Advocate General has held as follows:

(a) That, in view of the requirement of the Army Regulations that "every court martial shall keep a complete and accurate record of its proceedings," the entire proceedings and action of the court upon the trial should be fully set forth, including the organization, challenges to members (if any), arraignment, pleas, testimony of witnesses and documentary evidence, motions, objections, arguments, rulings of the court on interlocutory questions, adjournments, continuances, closing addresses or statements, findings and sentence; in short every part and feature of the proceedings, material to a complete history of the trial and to a correct understanding by the reviewing officer both of the merits of the case and of the questions of law arising in the course of the investigation. XXXII, 453, April, 1872. Where a sentence is pronounced, the record should contain everything necessary to sustain it in fact and in law. II, 59, March, 1863.

2

(b) That the record of each case tried by a court martial-where several cases are tried thereby-should be complete in itself” (army regulations, now Court-Mar. Manual [1901], p. 59) and as much an entirety, both in form and in substance, as if it were the only case tried. Each record should be separate and distinct from every other record, containing all that is essential to an original and independent official paper, and so perfected as to leave no material detail to be supplied from any previous or other record. The proceedings in each case should be made up separately: records therefore should not be attached

But A. R. 954 of 1895, as amended by G. O. 39, A. G. O., 1901 (A. R. 1055 of 1901), provides that testimony taken before regimental or garrison court martial will not be reduced to writing.

2 Compare Coffin v. Wilbur, 7 Pick. 151. See Court-Mar. Manual (1901), pp. 59 and 60.