Evening star. [volume] (Washington, D.C.) 1854-1972, 1906-12-19

service the practice is practically the same.
1t has been objected to the form of order
in this case that, while the President might
have the right to lay down rules Of eligi-
bility to exclude men discharged under cir
cumstances like those present in the case
under consideration. his power is that of
laying down rule applicable to all individ
uals coming within its application, and not
of directing by arbitrary order the exclusion
of particular individuals. To this objection
1t may be answered that under the statute
and the regulations the eligibility of the
discharged enlisted man to re-enlistment
depends upon the character Of the discharge
which he receives. Thus, in the navy If
enlisted man receives an ordinary discharge,
and the paper does not contain permission
to re-enliSt he Is not eligible to re-enlist
ment except by special permission Of the
Navy Department. So in the case of the
army, If the discharge shows 1t to have
been under circumstances specified in the
regulations for refusing re-enlistment, he
is not allowed to re-enlist. The words of
the President, therefore, in the discharges
in question barring the men from re-enlist
ment are in effect a mere declaration that
they are discharged under such circum-
stances as not to warrant re-enlistment,
which brings them within paragraph 2,
class d. No. 14S of the Regulations of the
Army.
Again, it is objected that the President
has no power to make the order in question,
because, If he has, he may disband the
army. There is clear distinction between
disbanding a company, battalion
regiment and the discharge of certain of
its members. This order named the persons
who were discharged, and did not embrace
all members of the three companies I'm
mediately upon the discharge Of these men
an order was issued filing up the three
companies by transfer from the other COM
panies of the regiment, so that the entity
and services Of the companies are continued
in the army, and 0oubtles; by proper re-
cruiting will soon be brought up to the
usual number in each company. The order
appears in the accompanying exhibit.
Among the similar cases which are set
forth In the exhibits the case of the 4th
Cavalry. In that case a number Of men In
a squadron, reused to passion and violence
lynched the person charged with the crime
1t was impossible to determine who had
committed the crime; no evidence was
forthcoming from the members OF the
squadron. The members of the court OF In
quiry, consisting of Gen. Kautz. Col. Carlin
and Col. Thos M. Anderson, recommended
that the troops Of the squadron be dis
banded. The matter was presented to Act
ing Judge Advocate General Leiber, who,
after pointing out that the organization and
maintenance of the squadron was provided
for by law. said: THE Secretary of War
has therefore, strictly speaking, no author
ity to disband these companies as such. He
may indeed discharge all the men of such
companies, enlisting others in their stead,
but this would be treating innocent and
guilty alike, and the discharge would be In
law honorable and In the case of the
guilty would be a premium upon crime.
Since that time the practice has been put
in force by regulation of issuing discharges
without honor, in which there can be no re-
enlistment except by executive permission.
There is nothing in this precedent which, In
the slightest degree affects the legality of
the present order, for the principle upon
which the decision rests recognizes fully
the complete power of the President to dis
charge every member of any organization.
Very respectfully, VIM. H. TAFT,
Secretary of War.
Questions Not Answered.
AS an answer to several legal questions
raised by Senator Foraker In his resolution
Of inquiry respecting the effect Of the dis
charge without honor imposed in the cases
of the members of the LIST Battalion of the
25th Infantry, Secretary Taft has forward
ed to the Senate a memorandum on the
subject prepared by Judge Advocate Cen
eral Davis of the army. AS to the question
as to the amount OF retained pay to the
credit of these soldiers Gen. Davis said
that the practice of retaining portion Of
the monthly pay of enlisted meA to be
paid over to them at discharge was discon-
tnued in 1898 by statute. and consequently
no money stood to the credit of any enlisted
man of the 25th Infantry at the time Of
his discharge.
Another question was as to the eligibility
of these soldiers to retirement on three
fourths pay and clothing and subsistence
allowances To that Gen. Davis replies:
1.-THE right Of an enlisted man to retire
accrueS when he shall have completed