2163-2164. WEARING BY ARMY PERSONNEL.

2165-2168. WEARING OR USE BY OTHER THAN ARMY PERSONNEL.

DISCRIMINATION AGAINST

2161. An innkeeper is subject to civil action and indictment when he has room and refuses to receive and duly entertain a member, in uniform, of the military or naval forces of the Un.ted States, who tenders a reasonable price for such entertainment. 325.2, Feb. 27, 1918.

PRESCRIBED

2162. Opinion is sought regarding the right of members of the Military Establishment of the United States to wear Red Cross medals. Under R. S. 1296, the President is authorized to prescribe the uniform of the Army. The "Regulations for the uniform of the United States Army" are prescribed in S. R. No. 41, dated August 15, 1917 (AR 600-40). See also the act of July 9, 1918 (40 Stat. 845, 872), permitting members of the military forces serving in the World War to accept from our allies medals and decorations without the consent of Congress, and paragraph 642, of S. R. No. 41, C. No. 10, July 26, 1919, in conformity therewith. Aside from the miscellaneous badges referred to in said regulations as being recognized by the War Department, only medals and other decorations awarded to members of the Military Establishment by the Government of the United States and by foreign Governments with which the United States has been associated in the World War may be lawfully worn on the United States Army uniformn. The Red Cross is a civilian institution, and its medal is a civilian decoration. The wearing of civilian decorations on the Army uniform is prohibited. 220.5, Oct. 31, 1919.

Under R. S. 1296, it is provided that the "President may prescribe the uniform of the Army and quantity and kind of clothing wh.ch shall be issued annually to the troops of the United States." Army nurses are a part of the "troops of the United States" and are persons to whom the President may authorize the issue of clothing under the provisions of R. S. 1296. 300.3, Nov. 12, 1919.

Secs.

WEARING BY ARMY PERSONNEL

2163. RESERVE OFFICERS.

2164. RETIRED OFFICERS.

RESERVE OFFICERS

2163. A reserve officer not called into active duty is not authorized to wear the uniform of the United States Army. 96-140, Oct. 30, 1917.

A reserve officer who has been called to active duty but who, having terminated active duty, at present stands relieved of such duty, is not authorized to wear a uniform, notwithstanding the fact that competent superior authority has intimated to him that he will again be ordered to active duty. 421, Sept. 18, 1918.

RETIRED OFFICERS

2164. On the right of a retired officer on special occasions to bear the title and wear the uniform of the highest grade held by him during the war, Held, That while the provision in section 125 of the National Defense Act permitting honorably discharged officers to wear on occasions of ceremony the uniform of the highest grade held by them in the Regular or Volunteer service, does not apply to retired officers, the President has, under authority of R. S. 1296 provided in paragraph 17e, AR 600-40, that a retired officer who has rendered honorable service in a higher grade than that in which retired, may, on occasions of ceremony, wear the uniform of such higher grade, at his option. Held further, That there is no statute or regulation authorizing such an officer to “bear the official title" of any grade higher than that in which he was retired. 421, June 8, 1927.

By sec. 2, act of June 21, 1930 (46 Stat. 793), all persons who have served honorably in the forces of the United States during the war may bear the official title and, upon occasions of ceremony, wear the uniform of the highest grade held by them during their war service.

2165. Question is asked regarding the improper use of the Army uniform in connection with carnivals and street celebrations in which both men and women are engaged in masquerading in the uniform of the Army, Navy, or Marine Corps. Doubtless it was the intention of Congress to prevent, through section 125 of the National Defense Act of June 3, 1916 (39 Stat. 166), any unauthorized person from wearing either the prescribed uniform or any distinctive part thereof. The construction of this section must, however, rest primarily with the courts, since the enforcement of its provisions devolves upon the Department of Justice. 421, Nov. 6, 1919.

DISTINCTIVE PARTS

2166. The wearing, without authority, of the regulation enlisted man's button is a violation of section 125 of the National Defense Act (39 Stat. 166, 216), for the reason that such a button is a distinctive part of the uniform of the United States. 421, Mar. 18, 1918.

There is no express statutory prohibition against the wearing by civilians of Army pattern or Munson last shoes which are secured from civilian dealers and which are not the property of the Government. Such shoes are private property and are not a distinctive part of the military uniform, over which the Government exercises control by virtue of section 125 of the National Defense Act (39 Stat. 166, 216). 421, June 19, 1918.

TEST OF SIMILARITY

2167. Similarity, not identity, is the test to apply in determining whether the uniform or distinctive parts thereof are being used in violation of section 125 of the National Defense Act, as amended (41 Stat. 759). It is not material to such a determination that a critical inspection and comparison by experts would disclose differences, or that the two articles, when set side by side, would confuse no one. Where there is such a similarity that the uniform or part thereof so closely resembles that of the corresponding uniform or part prescribed for the use of the Army, as that but for a close inspection, mistake on the part of the public is likely to occur, then the article or uniform comes within the prohibition of the statute.

The question of a similarity within the meaning of the statute is to be determined by the test of dominancy; that is, where the dominating or prevailing impression gained by an ordinary observer from a casual inspection of the uniform or distinctive part thereof in question is that it is the same as, or closely similar to, the corresponding uniform or distinctive part of the uniform of the United States Army, then the wearing of the uniform or distinctive part in question is prohibited. The dissimilarity in size, form, color, and place where applied are not conclusive. If the uniform or distinctive part thereof is so like that of the Army, Navy, or Marine Corps, as that confusion or deception is likely to result, the wearing thereof is prohibited regardless of the fact that the accessories are dissimilar. 422, May 6, 1922.

BY DISCHARGED SOLDIERS

2168. A member of the Officers' Reserve Corps who is honorably discharged from the service of the United States before having reached the age limit for appointment or reappointment in the corps in which he is commissioned, or, if in corps having no age limit, before the completion of five years of service therein, is not entitled to wear the uniform of the highest grade he shall have held in the Officers' Reserve Corps on occasions of ceremony or when visiting an Army post or cantonment, or at any other time, nor has he the right to wear any part of the uniform. (Sec. 125, National Defense Act.) 421, Jan. 15, 1918.

By sec. 2, act of June 21, 1930 (46 Stat. 793), all persons who have served honorably in the military forces of the United States during war may bear the official title and, upon occasions of ceremony, wear the uniform of the highest grade held by them during their war service.

One whose commission as an officer has been terminated has no right to wear the Army uniform, although a reasonable time may be allowed in which to change to civilian garb. No more time should be allowed, however, than will

72746-32-68

be required to close up his business or relations with the Government and return to his home. If he can provide himself with civilian clothing at the place of discharge or dismissal, he should do so. There is no authority for the suggestion that the right to wear the uniform might, in certain cases, continue for a period of three months after discharge or dismissal. (Section 125, National Defense Act.) 421, July 3, 1918.

An officer or enlisted man, under a reasonable construction of section 125 of the National Defense Act (39 Stat. 216), should proceed from the place of his honorable discharge to his home with reasonable speed, and upon his arrival there his uniform should be discarded, as it is unlawful for him to wear it longer. In no event should he take more than three months and he may not unduly protract his transit. 421, Sept. 9, 1918.

Provisions in the act of July 9, 1918 (40 Stat. 891), and the act of July 3, 1926 (44 Stat. 891), amend section 125, National Defense Act.

Officers and enlisted men of the United States Army who are authorized to wear wound and service chevrons can not wear them upon joining a National Guard organization. The chevrons are a part of the uniform of the United States Army and as such they may not be worn by any person not entitled to wear that uniform. Section 125 of the National Defense Act (39 Stat. 166, 216) provides that discharged officers and enlisted men of the Army may wear the uniform from the place of discharge to their homes within three months after the date of discharge and upon certain occasions of ceremony. The uniform and chevrons can not be worn otherwise. 421, Jan. 8, 1919.

CADET CORPS

2169. An instructor of a cadet corps in a high school, while entitled to wear the uniform prescribed by such institution for wear by the instructors of its cadet corps, is expressly forbidden by section 125 of the National Defense Act (39 Stat. 216) to wear the uniform of the United States Army, or any distinctive part thereof, or a uniform any part of which is similar to a distinctive part thereof, or the insignia of rank prescribed to be worn by officers of the United States Army, or any insignia of rank similar thereto. 421, Feb. 18, 1918.

HOME GUARDS AND STATE POLICE

2170. Home guards may not, without authority therefor from the Secretary of War, wear any uniform which bears a prohibited similarity to the uniform of the United States; but the Secretary of War has power to grant such authority on condition that the uniform bear some mark or insignia distinguishing it from the uniform prescribed for the United States Army. 58-980, Oct. 17, 1917. Bulletin No. 47, War Department, 1918, prescribes the distinctive marks and insignia to be worn in the case of home guards, State police, etc., where the prescribed uniforms are similar to those prescribed for the Army, Navy, or Marine Corps. When these distinctive marks and insignia are used in such organizations, the uniforms are not in violation of section 125 of the National Defense Act (39 Stat. 216). The final decision as to infraction of this section in any case can be made only by a competent criminal court. 421, Oct. 9, 1918.

NATIONAL GUARD

2171. A person holding the honorary commission of brevet major, Illinois National Guard, or any other honorary commission, is not a part of the National

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ORGANIZATIONS DESIGNATED BY SECRETARY OF WAR [§ 2172

Guard within the meaning of the National Defense Act (39 Stat. 166), nor is he a member of any organization which the Secretary of War may designate as entitled to wear the Army uniform, under section 125, National Defense Act (39 Stat. 216). Consequently such person is not entitled to wear the uniform of the National Guard nor that of the United States Army. 421, July 10, 1918. General Orders, No. 73, War Department, 1918, prescribing insignia, has reference to the United States Army. This order does not apply to insignia worn by the National Guard of a State called, not drafted, by the President's proclamation, July 3, 1918. Such companies can be used only for the limited purposes specified in the militia clauses of the Constitution. They are still a part of the militia of the State, subject, of course, to its limited Federal employment as such, and should continue to wear their State insignia. 421, Sept. 17, 1918.

ORGANIZATIONS DESIGNATED BY THE SECRETARY OF

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WAR

2172. Section 125 of the National Defense Act (39 Stat. 216) prohibits the wearing of the uniform of the Army, Navy, or Marine Corps, or any distinctive part thereof, or a uniform any part of which is similar to a distinctive part of the uniform, unless the wearer be a member of the United States Army, Navy, or Marine Corps, providing, however, that certain military, and quasi-military organizations such as members of the organizations known as the Boy Scouts of America, or the Naval Militia, or such other organizations as the Secretary of War may designate," shall be excepted from the prohibition. Held, That, as the organizations that are expressly named as excepted are either military or quasi-military, and in view of the rule of associated words, it was the intention of Congress that the Secretary of War's authority to designate other organizations should be limited to those of a similar character, and that the Secretary of War is, therefore, not authorized to designate the Army Young Men's Christian Association as an organization exempt from the provisions of section 125 of the National Defense Act. 96-140, Dec. 23, 1916.

The Secretary of War may designate, under section 125 of the National Defense Act (39 Stat. 216), “organizations" which are authorized to wear the uniform of the United States. He can not, however, designate "persons" as so authorized. 421, July 11, 1918.