Evening star., 1915-05-15
GEN. HARR|ES TO RETIRE
WITH ADVANCE IN RANK
His Application for Major Generals
Grade Approved by Acting
Secretary Of War.

Acting Secretary Breckinridge of the
War Department today approved the
application of Brig. Gen. George H.
Harries. commanding the militia of the
District of Columbia, for retirement as
a major general under the provisions
Of section 20 Of the act approved Feb
ruary IS. 1909. In the application Gen.
Harrles stated that he had served con-
tinuously as brigadier general for
more than seventeen years.
Gen. A. l. Mills, chief Of the division
of militia affairs OF the War Depart
ment. to whom the application was re-
ferred for remarks. reported that in his
opinion section 20 of the act referred
to is not mandatory as to retirement
with Increased rank on account of ten
wears service In one grade.
Judge Advocate Generals View.
Brig. Gen. Enoch H. Crowder. the
Judge advocate general of the army.
10 whom the papers then were referred.
gave an opinion reviewing the laws
bearing on the case and held that sec
tion 20, governing retirements In the
District militia with increased rank,
was mandatory. After full considera-
ton OF the statute Gen. Crowder states
his conclusion as follows:
since power is here given to the
President for the benefit of the officers
of the National Guard of the District
of Columbia in order to confer a reward
which the statute provides, Its
annIication results in the view that
AN officer who has served continu-
ously for ten years in one grade Is
entitled upon his applica.ion 70 IN.
creased rank on his retirement In
this. as in other cases of statutory
construction, however, the intent OF
the legislation is the test
Intent of the Statute.
Il think the intent Of the statute is
to reward an officer who has served
continuously in grade Tor ten years
with an advancement Of one grade, ana
that Congress here recognizes the iact
that an officer who served continuously
for 70, wears in one grade does not re-
ceiye as rapid promotion as is usual IN
the National Guard. No words are en-
Moved which indicate meritorious
service as a necessary condition.
I'm fact, l think Congress assumed
that a service for ten years In grace
should be deemed meritorious, Tor the
reason that section 10 of the act OF
February 1s. 1909, authorizes the ex-
animation of an officer who has be
come incapacitated for the performance
of duty for any reason by a boafd
which shall examine said ofhcer as
to his physical. mental and military
qualifications" and section 21 of the
same act authorizes his discharge on
such examination. 1t is a reasona BILE
presumption, therefore, that an officer
who has served for ten years in one
grade deserves the reward which the
statute authorizes. l believe that Con-
gress made that presumption.
Regarding Retirement.
The first provisio also directs that
an officer who is retired with increased
rank under its provisions shall before
being so retired receive from the Presi-
dent of the United States a commits
sion in the new grade This proviso
might be regarded as an encroachment
on the power of the President to make
appointments. but since an honor only
is conferred involving no exercise of
executive functions. it does not invade
the right of the President to select his
assistants in the execution of the laws
to make appointments has been given
him to preserve.
1T is the opinion of this Office that
an officer Of the District of Columbia
National Guard who at the time of his
application for retirement has served
continuously in one grade for ten years
is entitled to an advance of one grade
on his retirement and that Gen. Har-
ries. in view OF his service as brtg~