CHAPTER XVIII. RANK AND COMMAND, ARMY CORPS, DIVISIONS, AND BRIGADES. RANK AND COMMAND. 510. IF, upon marches, guards, or in quarters, different corps of the army shall happen to join, or do duty together, the officer highest in rank of the line of the army, marine corps, or militia, by commission,' there on duty or in quarters, shall command the whole, and 1 COMMAND.-The following extracts from General Orders No. 51, series of 1851, from the war department, give the executive interpretation of this article: "The interpretation of this act has long been a subject of controversy. The difficulty arises from the vague and uncertain meaning of the words 'line of the army, which neither in the English service (from which most of our military terms are borrowed) nor in our own have a well-defined and invariable meaning. By some they are understood to designate the regular army as distinguished from the militia; by others, as meant to discriminate between officers by ordinary commissions and those by brevet [but see ¶ 514]; and finally, by others, to designate all officers not belonging to the staff. [See note 2, Chap. xix.] The question is not without difficulty, and it is surprising that Congress should not long since have settled, by some explanatory law, a question which has been so fruitful a source of controversy and embarrassment in the service." "The President has maturely considered the question, and finds himself compelled to differ from some for whose opinions he entertains a very high respect. His opinion is, that, although these words may sometimes be used in a different sense (to be determined by the context and subject-matter), in the 62d Article of War they are used to designate those officers of the army who do not belong to the staff, in contradistinction to those who do, and that the article intended, in the case contemplated by it, to confer the command exclusively on the former. The reasons which have brought him to this conclusion are briefly these: "1st. It is a well-settled rule of interpretation that in the construction of statutes words of doubtful or ambiguous meaning are to be understood in their usual acceptation. Now it must be admitted that, in common parlance, both in and out of the army, the words 'line' and 'staff' are generally used as correlative terms. "2d. Another rule of construction is, that the same word ought not to be understood, when it can be avoided, in two different senses in different laws on the same subject, and especially in different parts of the same law. Now, in another article (74) of this same law, the words 'line and staff of the army' are clearly used as correlative and contradistinctive terms." [See Chap. xxii., ¶ 649.] "The same remark applies to almost every case in which the words 'line' and 'staff' occur in acts of Congress. There are many other instances in which the words are so employed, but I have selected these as the most striking. On the other hand, I find but one act of Congress in which the words 'line of the army' have been employed to designate the regular army in contradistinction to the militia, and none in which they have been manifestly used as contradistinctive of brevet." [But the term "lineal rank” has since been used clearly as contradistinctive to brevet rank. See ¶ 515.] "In the discussion which took place in 1828 relative to ordinary rank and rank by brevet, the then secretary of war says: Rank in the line of the army or lineal rank, give orders for what is needful to the service, unless otherwise specially directed by the President of the United States, according to the nature of the case.-62d Article of War, April 10, 1806. as understood by the President, is applicable to the existing organization of that portion only of the army which is intended for field operations, or the exertion of physical force against an enemy. It is commonly used in contradistinction to the staff, etc. He then goes on to show that in the 62d Article it has another meaning.-House Doc. 58, 20th Congress, 2d Session, p. 13. In the same discussion, Mr. Drayton, as chairman of the committee on military affairs of the House of Representatives, expresses the same opinion. He says: Rank in the line of the army is conceived to be rank in a military body especially organized for the exertion of physical force, or in other words, for combating an enemy; and an officer in such a body has a direct and paramount command over the troops which compose it. The expressions, rank in the line of the army, rank in the line, lineal rank, are generally used in contradistinction to staff appointments.' He adds: 'and to rank which confers upon officers only an occasional right to command, including brevet officers,' etc. Thus we see that, while both these gentlemen admit that these words, in their proper and usual significance, are employed to distinguish the combatant from the staff or non-combatant portions of the army, they nevertheless say that, in the article in question, it also means something else, though they do not agree what that something else is. The question under discussion in that case was different from the one now presented. In that case it was a question between ordinary rank and brevet rank: in the present, between lineal rank and staff rank. The President has no wish whatever to controvert the correctness of this decision of the former question, but he cannot entirely concur in all the reasoning on which it is founded." [The decision referred to is published in G. 0. No. 54, A.-G. O., 1829.] "3d. If Congress had meant by these words to discriminate between officers of the regular army and those of the militia, or between officers by brevet and by ordinary commission, it is to be presumed that they would have employed those terms respectively which are unequivocal, and are usually employed to express those ideas. "4th. If we look at the policy of the law, we can discover no reasons of expediency which compel us to depart from the plain and ordinary import of the terms; on the contrary, we may suppose strong reasons why it may have been deemed proper, in the case referred to by the article, to exclude officers of the staff from command. In the first place, the command of troops might frequently interfere with their appropriate duties, and thereby occasion serious embarrassment to the service. In the next place, the officers of some of the staff corps are not qualified by their habits and education for the command of troops; and although others are so qualified, it arises from the fact that (by laws passed long subsequently to the article in question) the officers of the corps to which they belong are required to be appointed from the line of the army. Lastly, officers of the staff corps seldom have troops of their own corps serving under their command, and if the words 'officers of the line' are understood to apply to them, the effect would often be to give them command over the officers and men of all the other corps when not a man of their own was present-an anomaly always to be avoided where it is possible to do so. "5th. It is worthy of observation that article 25, of the first 'rules and articles' enacted by Congress for the government of the army, corresponds with Article 62 of the present Rules and Articles, except that the words of the line of the army' are not contained in it. It is evident, therefore, that these words were inserted intentionally with a view to a change in the law, and it is probable that some inconvenience had arisen from conferring command indiscriminately on officers of the line or the staff, and had suggested the necessity of this change. It is contended, however, that sec. 10 of the act of 1795 enumerates the majorgeneral and brigadier-general as among the staff officers, and that this construction of the article would exclude them from command, which would be an absurdity. No such consequence would, however, follow. The article in question was obviously designed to meet the case (of not unfrequent occurrence) where officers of different corps of the army meet together, with no officer among them who does not belong exclusively to a corps. In such a case, there being no common superior, in the absence of some express provision conferring the power, no officer, merely of a corps, would have the right to command any corps but his own; to obviate this difficulty, the article in 511. All officers serving by commission from the authority of any particular State,' shall, on all detachments, courts-martial, or other duty, wherein they may be employed in conjunction with the regular forces of the United States, take rank next after all officers of the like grade in said regular forces, notwithstanding the commissions of such militia or State officers may be elder than the commissions of the officers of the regular forces of the United States.-98th Article of War, April 10, 1806. 512. That and a resolution entitled "A resolution to authorize the President to assign the command of troops in the same field or department to officers of the same grade without regard to seniority," approved April 4, 1862, be and the same are hereby repealed. Sec. 5, July 13, 1866, chap. 176. 513. That the 61st article of "An act for establishing rules and articles for the government of the armies of the United States," approved April 10, 1806, be and the same is hereby repealed.'_ Sec. 1, March 1, 1869, chap. 52. effect provides that, in such an event, the officer of the line, highest in rank, shall command the rest. But if there be a major-general or brigadier-general present, the case contemplated by the article does not exist. No question can arise as to the right of command, because the general officer, not belonging to any particular corps, takes the command by virtue of the general rule which assigns the command to the officer highest in rank." (a.) The Army Regulations of 1813 precluded discussion upon this subject by declaring (p. 179) that "in all cases in which command shall not have been specially given, the eldest officer, whether of cavalry, of artillery, or of infantry, will command;" and (p. 180) that "brevet rank gives no precedence nor command, except on detachments; nor shall persons having such rank only be included in the roster of officers for any other duty than that performed by detachments, and to which they shall be specially assigned." (b.) The rank referred to in the Articles of War (¶ ¶ 510, 511, 632, 653) is that by commission. Query as to the extent to which precedence and command accompany temporary or local rank created simply by an assignment from the President, or by the appointment of a general officer? (c.) Officers of the MEDICAL and PAY DEPARTMENTS are, by express terms of the laws, first conferring upon them military rank, debarred from "command in the line or other staff departments." See Chap. x., ¶ 284, and Chap. xi., ¶ 317. For the status of the CORPS OF ENGINEERS, in connection with the 62d Article of War, see Chap. xii., ¶ 376 and note 1 b, c; and for status of the ORDNANCE DEPARTMENT see Chap. xiii., ¶ 407, note 1 b, and note 9. 2 But officers of volunteer forces, though serving under State commissions, are, when mustered into the service of the United States, upon the same footing as to rank, etc., as regular officers. See ¶¶ 519, 520. 3 The resolution thus repealed provided: "That whenever military operations may require the presence of two or more officers of the same grade in the same field or department, the President may assign the command of the forces in such field or department, without regard to seniority of rank." Officers of the regular army, and of volunteers in the service of the United States, being now upon an equal footing as to rank, etc., seniority of rank can only be disregarded as between them and the officers of militia-of like grades. But superiority in grade can only be disregarded in the temporary emergencies provided for in the 27th Article of War. See Chap. xxiii.,¶747. 4 That article of war provided that: "Officers having brevets, or commissions of a prior date to those of the regiment in which they serve, may take place in courts 514. Brevet rank shall not entitle an officer to precedence or command except by special assignment of the President, but such assignment shall not entitle any officer to additional pay or allowance. -Sec. 7, March 3, 1869, chap. 124. 515. The relative rank between officers of the navy and the army shall be as follows, lineal rank only to be considered:5 Rear-admirals with major-generals. Commodores with brigadier-generals. Commanders with lieutenant-colonels. Masters with first lieutenants. Ensigns with second lieutenants.-Sec. 13, July 16, 1862, chap. 183. 516. The relative rank between officers of the navy and army on the retired list shall be the same as on the active list.-Sec. 20, July 16, 1862, chap. 183. 517. The officers of the marine corps shall be, in relation to rank, on the same footing as officers of similar grades in the army.-Sec. 4, June 30, 1834, chap. 132. 518. All officers who have served during the rebellion as volunteers in the armies of the United States, and who have been or may hereafter be honorably mustered out of the volunteer service, shall be entitled to bear the official title, and upon occasions of ceremony to wear the uniform of the highest grade they have held by brevet or martial and on detachments, when composed of different corps, according to the ranks given them in their brevets or dates of their former commissions; but in the regiment, troop, or company to which such officers belong, they shall do duty and take rank both in courts-martial and on detachments which shall be composed of their own corps, according to the commissions by which they are mustered in the said corps." (a.) No officer to wear any other than the uniform of his actual rank, nor to be addressed officially by his brevet title. See Chap. xix., ¶ 551. 5 The act of December 21, 1864, provides for a vice-admiral "whose relative rank with officers of the army shall be that of lieutenant-general of the army." The relative rank of the admiral with army officers has not been determined by law. Officers of the revenue cutter service, when serving as part of the navy, are entitled to relative rank as follows: captains, with and next after lieutenants commanding in the navy; first lieutenants, with and next after lieutenants in the navy; second lieutenants, with and next after masters in line in the navy; third lieutenants, with and next after passed midshipmen in the navy.-Sec. 4, February 4, 1863. 6 Under act of July 11, 1798, the marine corps "shall, at any time, be liable to do duty in the forts and garrisons of the United States, on the sea-coast, or any other duty on shore, as the President, at his discretion, shall direct." When serving with the army they are subject to the Rules and Articles of War (see ¶¶954, 955; and under the 68th Article of War they may be associated on courts-martial with army officers; "and, in such cases, the orders of the senior officer of either corps, who may be present and duly authorized, shall be received and obeyed." See ¶ 637. other commissions in the volunteer service. In case of officers of the regular army, the volunteer rank shall be entered upon the official Army Register. Provided, That these privileges shall not entitle any officer to command, pay, or emoluments.-Sec. 34, July 28, 1866, chap. 299. 519. In computing the length of service of any officer of the army, in order to determine what allowance and payment of additional or longevity rations he is entitled to, and also in fixing the relative rank to be given to an officer as between himself and others having the same grade and date of appointment and commission, there shall be taken into account and credited to such officer whatever time he may have actually served, whether continuously or at different periods, as a commissioned officer of the United States, either in the regular army, or, since the 19th day of April, 1861, in the volunteer service, either under appointment or commission from the governor of a State or from the President of the United States; and the provision herein contained as to relative rank shall apply to all appointments that have already been made under the "act to fix the military peace establishment of the United States," approved July 28, 1866.-Sec. 1, March 2, 1867, chap. 159. 520. In all matters relating to pay, allowances, rank, duties, privileges, and rights of officers and soldiers of the army of the United States, the same rules and regulations shall apply without distinction for such time as they may be or have been in the service, alike to those who belong permanently to that service and to those who, as volunteers, may be or have been commissioned or mustered into the military service under the laws of the United States for a limited period. But nothing in this act shall be construed as affecting or in any way relating to the militia of the several States when called into the service of the United States.-Sec. 2, ibid. 521. Excepting the ordnance storekeeper and paymaster at the Springfield Armory, who has the rank, pay, and allowances of a 7 Under sec. 29 of same act, providing "that, in construing this act, officers who have heretofore been appointed or commissioned to serve with the United States colored troops shall be deemed and held to be officers of volunteers; and officers of the regular army who have also held commissions as officers of volunteers, or have commanded volunteers, shall not on that account be held to be volunteers under the provisions of this act," the war department decides that this section does not apply to officers while holding commissions in the regular army, except that their volunteer rank shall be entered upon the Army Register.-G. O. No. 78, A.-G. O., 1867. No officer shall be addressed in orders or official communications by any title other than that of his actual rank. See Chap. xix., ¶ 550. The act of February 24, 1814, enacted: "That the officers of the corps of volunteers which shall be taken into service shall rank, according to grade and the dates of their commissions or appointments, with other officers of the army." |