A former soldier, discharged May 3, 1924, on account of desertion and sentence to imprisonment by a civil court, made application to St. Elizabeths Hospital under the provisions of R. S. 4843. There was no evidence to rebut the presumption that he was sane on date of discharge. Assuming that applicant has now been found to be insane by a court of competent jurisdiction, and that his indigency is established, it is Held, That having been discharged on account of desertion and imprisonment under sentence of a civil court, rather than for disability, he is not eligible for admission under the fourth paragraph of the statute cited. Held further, That in the absence of evidence that any insanity which may have supervened after his discharge was due to a cause which arose during, or was produced by, his service, the fifth paragraph of the statute cited is not applicable. 705, Feb. 24, 1928.

A former soldier discharged September 29, 1924, on a certificate of disability on account of dementia præcox existing prior to enlistment and not originating in line of duty, subsequently discharged from St. Elizabeths as a "social recovery," on May 2, 1925, if now determined to be an indigent insane person, may be committed to St. Elizabeths Hospital, upon order of the Secretary of War, under the fourth subdivision of R. S. 4843. 046.3, Dec. 9, 1929.

RELEASE

1237. A former cadet, honorably discharged on account of physical disability, declared insane by decree of a New York court, and admitted to St. Elizabeths Hospital at the request of his wife or guardian upon order of the Secretary of War, made application to the Secretary of War for release from the institution. Held, That as the patient is a civilian, the War Department has no jurisdiction over him, and is interested only to the extent of providing the treatment to which he is entitled by law. Held further, That the question of his further involuntary detention at the hospital is one to be determined by the Supreme Court of the District of Columbia. 046.3, Mar. 29, 1928.

SOLDIERS' HOME

Secs.

1238. ADMISSION AND BENEFITS.

1239. DISMISSAL.

1240. LANDS.

ADMISSION AND BENEFITS

1238. Two discharged soldiers of the United States Army were admitted into the United States Soldiers' Home, Washington, D. C., for temporary treatment for disabilities which had occasioned their discharge from the Army. They were relieved sufficiently to permit of their earning their living outside the home, but their disabilities were such that they could not again be fitted for military service. Neither had served as much as 20 years in the Army when discharged.

R. S. 4821, defining the classes of persons entitled to the rights and benefits of the Soldiers' Home, prescribes as admissible thereto :

Every soldier and every discharged soldier, whether Regular or Volunteer, who has suffered, or may suffer, by reason of disease or wounds incurred in the service and in the line of his duty, rendering him incapable of further military service, if such disability was not occasioned by his own misconduct.

R. S. 4823, provides that:

Any soldier admitted to the Soldiers' Home for disability who recovers his health so as to become fit again for military service, if under 50 years of age, shall be discharged.

Held, That the United States Soldiers' Home was an eleemosynary institu tion for the dispensing of charitable relief to the classes of persons described in the law as entitled to its benefits, which benefits included treatment for diseases or disabilities of soldiers and the furnishing of an asylum or home to the inmates, and, except as to treatment for disabilities of those subject to dis charge when fit for military duty, the benefits of the institution, owing to its character, could be extended only to those in need of an asylum or home or in need of medical treatment and who were unable to provide the same for themselves. Held therefore, That the persons in question, being able to earn a living for themselves outside the institution, were properly denied permanent admission thereto. 80-441.4, July 17, 1914.

An enlisted man in the Regular Army, transferred to and actually incorporated in the National Guard or the National Army, and subsequently sent to an Army hospital for treatment, and discharged on a certificate of disability while a member of the National Guard or of the National Army, is entitled to admission to the United States Soldiers' Home at Washington, D. C. The right acquired by the enlistment in the Regular Army to admission to the Soldiers' Home should be regarded as personal and a man so transferred would be entitled to the same right of admission to the home as if he had remained in the Regular Army. Also, an enlisted man drafted into the National Army and transferred to the Regular Army and incorporated therein, and thereafter discharged on a certificate of disability, would be entitled to admission to the home the same as if he had originally enlisted in the Regular Army. 002. May 17, 1918.

Retired soldiers of the Army of the United States who have had some enlisted service in the Regular Army and who have served honestly and faithfully for 20 years or more, are eligible for admission to the United States Soldiers' Home. (Par. 6b (1), AR 615–400; par. 37, General Rules, United States Soldiers' Home, 1923.)

The rules regulating admission to the United States Soldiers' Home do not contemplate the discharge of the soldier as a condition precedent to admission. (Dig. Op. J. A. G., 1912, p. 1002, overrules.) 002, May 12, 1924.

DISMISSAL

1239. Information is requested whether it would be legal to make discretionary what is said to be the present compulsory dismissal of members guilty of introducing liquors into the United States Soldiers' Home. The general law relative to the Soldiers' Home is found in R. S. 4814, et seq. R. S. 4815, providing for a board of commissioners, gives to the majority of said board the power to establish regulations for the general and internal direction of the institution, to be approved by the Secretary of War. Article IV of the regulations for the internal police and discipline of the home, approved by the board, May 25, 1883, provides that "Inmates of the home will not be permitted to introduce any kind of liquors within its inclosures, and a violation of this regulation will be deemed a sufficient cause for dismissal from the institution." Article X thereof provides: "Authority for dismissal is vested in the governor of the home, who shall, upon the dismissal of an inmate, make a report of all the facts in the case to the secretary of the board for its information." While it may have become the practice to do so in such cases, the articles are in no sense mandatory. 002, Oct. 23, 1919.

Article IV, supra, is not found in the present regulations of the home; Article X, supra, is now section 56, General Regulations of 1923.

LANDS

1240. The Secretary of the Treasury is authorized to provide immediate hospital and sanatorium facilities for the care and treatment of discharged sick and disabled soldiers, sailors and marines, Army and Navy nurses, patients of the war risk insurance and certain other persons, and appropriation is made for construction on a site to be selected by the Secretary of the Treasury. Act of March 3, 1919 (40 Stat. 1302). It is proposed that he acquire a portion of the Soldiers' Home Reservation to be used as a site for such hospital. The reservation was acquired and the Soldiers' Home was established as a military asylum for the invalid and disabled soldiers of the Army of the United States, under authority of the act of March 3, 1851 (9 Stat. 595). Said act provides that all soldiers of the Army of the United States, whether regulars or volunteers, and who have contributed or may hereafter contribute to the support of the said asylum shall be members thereof and that every such soldier who either has served or may serve faithfully 20 years therein or who has suffered, or may suffer by disease or wounds incurred in the service and in the line of duty, rendering him incapable of further military service shall be entitled to the benefits of the act. Provision is made for the support of the home in R. S. 4817 and 4819. The latter section provides that "there shall be deducted from the pay of every noncommissioned officer, musician, artificer, and private of the Army of the United States," a certain sum to be deducted from the Army pay and the same is to be passed to the credit of the commissioners of the Soldiers' Home. The deduction was abolished by the act of May 11, 1908 (35 Stat. 106, 110). The Soldiers' Home is therefore something more than mere property of a department of the Government and the board of commissioners is without authority to transfer to the Public Health Service a portion of the Soldiers' Home to be used as a site for the proposed hospital. 002, May 27, 1919.

1241. M. C. M. 46 (par. 19, M. C. M., 1928) is intended primarily to regulate the exercise by commanding officers of their duties under A. W. 69. It does not state all the law of arrest. M. C. M. 52 (par. 20, M. C. M., 1928), by implication, recognizes the right of a commissioned officer to confine a soldier "when immediate restraint is necessary." A. W. 71 and 72 also recognize this power of commissioned officers which has its source and authority in longstanding custom of the military service. Of course, the power of the commissioned officers, as above indicated, should not be abused. For an abuse of the power the officer is triable. 250.3, June 11, 1921.

Any commissioned officer has power to order a soldier into arrest or confinement whenever in his judgment immediate restraint is necessary or whenever he discovers a soldier in the act of committing an offense or when upon inquiry and investigation he believes a soldier has committed an offense. 300.7, Oct. 15, 1921.

A commanding officer ordered in writing that an officer of his command be placed in arrest, but before the order could be served the commanding officer was relieved of his command by another. The new commanding officer did not revoke the order of arrest but promptly approved it. Held, assuming that the order for arrest did not become binding upon the officer until it was served on him, That it was legally effective for its pronounced purpose when issued, and, like any other legal order, continued in effect after the officer issuing it had ceased to exercise the command by virtue of which it was issued. When served, the order was effective to place accused in arrest, and accused's breach of the arrest was a violation of A. W. 69. C. M. 191631 (1930).