Under the Act of October 1, 1890, c. 1241, 26 Stat. 562,
regulating examinations and promotions in the army, the board of
examiners may make a provisional order giving the officer a
reasonable period for reexamination and such an order is not final
but provisional, and does not deprive the board of jurisdiction to
subsequently determine the fitness of officer for duty.
What is due process of law depends upon circumstances. To those
in the military or naval service of the United States military law
is due process, and the decision of a military tribunal acting
within scope of its lawful powers cannot be reviewed or set aside
by the courts.
The purpose of the Act of October 1, 1890, is to secure
efficiency, and the only relief from error or injustice in the
order of the board is by review of the President. The courts have
no power of review.
Courts are not the only instrumentalities of government; they
cannot command or regulate the army, and the welfare and safety of
the country, through the efficiency of officers of the army, is
greater than the value of his commission or the right of promotion
of any officer of the army.
There is a difference between the regular army of the nation and
the militia of a state when not in service of the nation, and more
rigid rules and a higher state of discipline are required in the
former than in the latter.
28 App.D.C. 157 affirmed.
The facts, which involve the validity of an order honorably
Page 219 U. S. 297
discharging an officer of the United States Army under the Act
of October 1, 1890, are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Plaintiff in error filed a petition in the Supreme Court of the
District of Columbia for a writ of certiorari to review the
proceedings of a board of examination convened under the authority
of the Act of Congress of October 1, 1890, entitled, "An Act to
Provide for the Examination of Certain Officers of the Army, and to
regulate Promotions Therein" (26 Stat. 562, c. 1241), and to annual
an order made by the President discharging plaintiff in error from
the Army.
The basis of the petition is that, by a prior decision of the
board, he became entitled, by virtue of the Act of Congress, to be
retired with three quarters pay for life.
A writ was issued directed to General Frederick C. Ainsworth,
Military Secretary.
He appeared and moved to quash the writ. The motion was granted
and the petition dismissed. The order, however, was subsequently
vacated, and, by leave of the court, the petition was amended by
making William H. Taft, Secretary of War, one of the
respondents.
An amended writ was issued, which the respondents moved to
supersede upon the following grounds: the writ was granted
improvidently, and upon an
ex parte application; its
allowance would be unjust and contrary to public policy; the
petition does not set up any right of property, title, or interest
in the alleged office; Congress has entrusted to the board of
examination the decision of
Page 219 U. S. 298
matters properly arising before it, and the court has no
jurisdiction by certiorari to examine the proceedings of the board;
the allowance of the writ would embarrass the operations of the
military service of the United States and the proper administration
of the manifold duties of the War Department, hindering the
enforcement of its discipline and regulations, and the discharge of
the legally ordained functions of that branch of the government;
the record sought to be reviewed shows that the petitioner
(plaintiff in error) "is not entitled to the issuance of the writ,
as it appears by a duly certified and true extract from said
record." The record was filed with the motion, and will be given
hereafter.
The motion to supersede was granted, the order reciting, "it
appearing to the court, without considering the question of
discretion, that the writ of certiorari" had been "improperly
granted." The petition was dismissed at the cost of the petitioner,
which ruling was affirmed by the Court of Appeals.
The Court of Appeals expressed the opinion that the board of
examination was military in character, and having had jurisdiction
of the subject matter and of the person, the courts were without
jurisdiction to review its decision.
By § 3 of the Act of October 1, 1890, the President is
authorized to prescribe a system of examination for all officers
below the rank of major, to determine their fitness for promotion,
and it is provided
"that if any officer fails to pass a satisfactory examination
and is reported unfit for promotion, the officer next below him in
rank having passed said examination shall receive the promotion:
And provided, That should the officer fail in his physical
examination and be found incapacitated for service by reason of
physical disability contracted in line of duty, he shall be retired
with the rank to which his seniority entitled him to be promoted;
but if he should
Page 219 U. S. 299
fail for any other reason, he shall be suspended from promotion
for one year, when he shall be reexamined, and in case of failure
of such reexamination he shall be honorably discharged with one
year's pay from the Army, . . . and no act . . . shall be so
construed as to limit or restrict the retirement of officers as
herein provided for."
This statute constitutes the law of the case. The material facts
are these: plaintiff in error was a second lieutenant of artillery
on sick leave at Fort Hamilton on account of neurasthenia,
resulting from overwork in the Philippine Islands. On August 16,
1904, he was ordered for promotion before a board of examination,
constituted of five members, two of whom were surgeons. The
surgeons found him physically fit for duty, but he was, on their
recommendation, allowed to return to Fort Hamilton. On October 5,
1904, while still on sick leave, he was again ordered to Fort
Monroe before the same board and forced to take a mental
examination. He broke down completely, and was found deficient. On
May 22, 1905, he was again ordered before the board for
reexamination, and appeared before it on the twenty-third. On the
twenty-fourth, the board made the following order, which was
referred to above in connection with the motion to supersede the
writ:
"The board is of opinion that 2nd Lieut. Winslow H. Reaves,
Art'l Corps, is physically incapacitated for service at the present
time, but that there is a reasonable hope of his recovery. Lieut.
Reaves' present condition is such that it is not possible for him
to proceed with the mental examination without serious interference
with his future recovery."
"His disability is due to severe cerebral and cardiovascular
neurasthenia, contracted in line of duty."
Subsequently he was ordered to appear before the same examining
board, convened by special order of the President, but changed as
to a majority of its members. The
Page 219 U. S. 300
board convened at Fort Monroe August 21, 1905, and he appeared
before it pursuant to orders. He was found physically fit for duty.
He failed, however, in his mental examination, and, we may assume,
although it is not directly averred, that in consequence of the
report of the board, the President made the order above set out,
honorably discharging the plaintiff in error from the service of
the United States. This order he attacks, and urges that of the
twenty-fourth of May as the foundation of his rights and
contentions. He maintains that the surgeons having reported as
therein set out, and their report having been confirmed by a full
board of five officers, and forwarded to the Secretary of War, it,
under the express wording of the statute of October 1, 1890, had
the finality of an acquittal of a court-martial, "and that, by the
operation of the statute," plaintiff in error "was thereupon
retired and entitled to retired pay during life, instead of being
dismissed from the service with one year's pay," and that, as such
right became absolute by the report of the surgeons and the action
of the board thereon, the subsequent proceedings of the board were
without jurisdiction and void, and that they and the President's
order deprived him of his property without due process of law.
Plaintiff in error misunderstands the order of May 24. It is not
a final order, but a provisional one. It was an indulgence to the
afflicted officer, giving him a chance for recovery and promotion
and assignment to the active list of his profession. And we have no
doubt of the power of the board to make it and reserve jurisdiction
for further proceedings.
It is next contended that, even if the board had jurisdiction,
its proceedings subsequent to the order of May 24, 1905, were
arbitrary and illegal, and that the relief prayed does not involve
the
"question of interference with the discretion of the board; it
is a question of the jurisdiction
Page 219 U. S. 301
of the board and of the fact that discretion, if exercised, was
abused."
On this contention, the averments of the petition have a more
pertinent bearing than on the first contention. The petition
described with much detail and quite vividly his disability. He
alleges that, for the last two years, he has been suffering from an
extremely acute case of cerebral neurasthenia, or nervous
exhaustion, for which he has been almost continuously under the
care of physicians, some of whom are the most famous in the world
as specialists for nervous diseases. And, further, that he is today
in as bad a condition as at any time during the last two years, and
is wholly unable to exercise mental effort; his memory is at times
a blank, and it is, and for two years has been, utterly impossible
for him "to study, read, or think consecutively, except for a few
moments at a time, and "his" sleep has not averaged more than about
two and one-half hours per day." This was his condition, it is
alleged, when he was ordered before the first board. The
allegations are supported by an affidavit of Dr. Weir Mitchell and
Dr. John K. Mitchell. The affidavit, which was submitted to the
first board, illustrated his condition and its effects in various
ways, and declared that, from the experience and knowledge obtained
from actual attendance upon him, he was not "competent to undergo a
mental examination or to do any military duty."
This condition is further set forth in the petition and the
affidavit which accompanied it, with circumstances of emphasis, and
there is an intimation that the final action of the board was
contrived. The details we may omit. The important facts which are
alleged, and which, as it is contended, give character to the
action of the board as illegal and arbitrary, are the following:
the board had before it papers from the War Department, and his
counsel made a series of motions for permission to examine them and
to inspect the other evidence, which included
Page 219 U. S. 302
documents of all kinds, reports of surgeons, and the report of
the surgeons made to the board May 23, 1905.
A motion was also made to strike out the report of the surgeons
on the ground that the report of the examining board of May 24,
1905, was final, and plaintiff in error's retirement was mandatory
under said report and the Act of Congress of October 1, 1890.
The motions were all denied except the request to produce
witnesses. At the request of the board, he presented the names of
about thirty witnesses who were physicians and had had him under
observation for different periods of time, and all of whom could
swear to facts, exact symptoms of his malady, and besides could
give expert evidence as to his condition while under observation.
The names of the witnesses and the facts were given. It was offered
to be shown that the reports of the surgeon who had charge of a
hospital at Fort McPherson, Georgia, to which plaintiff had been
sent, that he was competent to do duty, were not based on facts or
the reports of the attendants, "but were prepared negligently,
ignorantly, wickedly, and corruptly." And an offer was made to
produce the attendants with their official reports.
The board refused to call in witnesses, on the ground that the
doctors named had already filed certificates and that the laymen
were not expert witnesses. Plaintiff in error was not allowed to
call witnesses, nor to inspect exhibits presented to the board, nor
to cross-examine the surgeons on their report. All testimony,
documentary or otherwise, was taken in secret.
The board went into executive session and formally reported
plaintiff in error to be without physical disqualification, and
competent to take the examination, and to do the duty of a first
lieutenant of artillery. He was thereupon ordered to take such
examination, and attempted to take the same, until prevented by
spells of weeping and other marked symptoms of neurasthenia.
Page 219 U. S. 303
Thereupon the post surgeon made a certificate as to his
condition and put him on the sick report, and on the following day
the surgeons of the board were sent to Fort Monroe and superseded
the post surgeon, and plaintiff in error was forced to go
through
"the farcical form of an examination under the personal
supervision of the board surgeons, turning in practically blank
examination papers, petitioner's mind being almost a blank."
The prayer is for a writ of certiorari to bring up all of the
proceedings which we have detailed, that they may be reviewed, and
that the following order discharging him from the Army be annulled.
The order is annexed to the petition as an exhibit, and is as
follows:
"4. By direction of the President, 2d Lieutenant Winslow Hart
Reaves, Artillery Corps, is honorably discharged from the services
of the United States, under the provision of the Act of Congress
approved October 1, 1890, to take effect September 14, 1905
(1052959, M. S. O.)."
"By order of the Acting Secretary of War."
"J. C. BATES"
"
Major General, Acting Chief of Staff"
"Official: F. C. Ainsworth"
"
The Military Secretary"
And it is further prayed that petitioner be put upon the retired
list under the Act of October 1, 1890, and the findings of the
board of May 24, 1905, and that the proceedings of the board and of
the Acting Secretary of War subsequent to that date be found to be
void and without effect. And such further relief is prayed as may
be just.
The petition is verified and is accompanied by an affidavit of
plaintiff in error's counsel, corroborating with some detail its
statements of the mental and physical condition of plaintiff in
error.
It will be seen that the report of the board of May 24,
Page 219 U. S. 304
1905, is made by the petition, and urged in the argument, as the
foundation of the rights of plaintiff in error. It is argued that
his commission in the Army constituted property of which to be
retired from the Army, with pay for life, was a valuable attribute,
and of which he could not be deprived without due process of law.
Such process, he urges,
"consists of two independent parts, both of which must be lawful
-- one, the proceeding before the board of examination and its
report, which conforms in all respects to a 'decision' by a judge,
which is the foundation of a judgment; second, the confirmation of
that report by the President."
These being filed, it is further argued all subsequent
proceedings affecting them, if without jurisdictional support, as
it is contended they are, are void and may be declared so, and
plaintiff in error's right to be promoted and put upon the retired
list adjudged. But the contention and argument are without
foundation, as we have seen, and the case presented by the petition
does not exist. It is not necessary, therefore, to review the able
argument of counsel. It is based entirely on the unsound assumption
which we have pointed out. Besides, what is due process of law must
be determined by circumstances. To those in the military or naval
service of the United States, the military law is due process. The
decision, therefore, of a military tribunal acting within the scope
of its lawful powers cannot be reviewed or set aside by the courts.
Johnson v. Sayre, 158 U. S. 109.
See also Mullan v. United States, 212 U.
S. 516.
It is contended, however, that the board of examination did not
observe the procedure required by law, and that they are bound, as
retiring boards are bound under § 1248 of the Revised Statutes
to
"inquire into and determine the facts touching the nature and
occasion of the disability of any officer, . . . and shall have
such powers of a court-martial and of a court of inquiry as may be
necessary for that purpose. "
Page 219 U. S. 305
But the Act of October 1, 1890, has a different purpose from the
retirement of an officer from service. Its purpose is to secure
efficiency in those who are to be active in service, and physical
capacity, of course, is as necessary as mental capacity, but no
fixed procedure is provided by the statute to ascertain either; but
by very comprehensive words, power is conferred upon the President
to
"prescribe a system of examination of all officers of the Army,
to be conducted at special times anterior to the acquiring of the
right of promotion, as may be best for the interests of the
service."
This power is exercised through special orders creating
examining boards, which define their membership and duties. For
officers of artillery, the board shall consist of five members, two
of whom shall be medical officers, and a recorder, all of whom take
an oath to act and report impartially. The medical officers are
required to make the necessary physical examination of all
officers, reporting their opinion to the board, by which "all
questions relating to the physical condition of an officer shall be
determined." The orders directed that
"if anything should arise during the examination regarding the
introduction of evidence, the inquiry shall proceed upon written
interrogatories as far as possible, the board determining to whom
questions shall be forwarded."
If it becomes necessary to take oral testimony, the fact must be
reported to the War Department for the necessary orders in regard
to witnesses summoned from a distance.
The record, where an officer is found physically disqualified,
must be authenticated by all members of the board and the recorder.
If the disability be the result of an incident of the service, and
the proceedings of the board be approved by the President, the
officer
"shall be regarded as physically unfit for promotion, within the
meaning of section 3 of the Act of October 1, 1890, and shall be
retired with the rank to which his seniority entitles
Page 219 U. S. 306
him whenever a vacancy occurs that otherwise would result in his
promotion on the active list."
If it be disputable whether these provisions guarantee to an
officer "the safeguards of a trial in court," it is certain that
the decision is not final with the board, but must be reported with
the proceedings to the President, and may be approved or
disapproved by him. This is the only relief from the errors or the
injustice that may be done by the board which is provided. The
courts have no power to review. The courts are not the only
instrumentalities of government. They cannot command or regulate
the Army. To be promoted or to be retired may be the right of an
officer, the value to him of his commission, but greater even than
that is the welfare of the country, and, it may be, even its
safety, through the efficiency of the Army. And this was the motive
of the Act of October 1, 1890, and naturally its accomplishment was
entrusted to the President. He executed the trust by constituting
examining boards, defining their duty, and reserving to himself the
ultimate review of their proceedings and decision. This is the
protection which the Act of Congress gives to the rights conferred
by it. If it had been the intention of Congress to give to an
officer the right to raise issues and controversies with the board
upon the elements, physical and mental, of his qualifications for
promotion, and carry them over the head of the President to the
courts, and to be there litigated, it may be, through a course of
years, upon the assertion of error or injustice in the board's
rulings or decisions, such intention would have been explicitly
declared. The embarrassment of such a right to the service, indeed,
the detriment of it, may be imagined.
It is, however, contended, that
People ex Rel. Smith v.
Hoffman, 166 N.Y. 462, sustains the right of review. The case
does not support the contention. The decision was based on the
statutes of the state, which made, it was
Page 219 U. S. 307
decided, the military board whose action was reviewed a judicial
tribunal, and its decision subject to be reviewed by certiorari.
And, replying to the argument against the existence of the power of
the courts to review the determination of a military tribunal, and
the cases from the federal courts adduced to support the argument,
the court said: "There is a wide difference between the regular
Army of the nation and the militia of a state, when not in the
service of the nation," and that "more rigid rules and a higher
state of discipline are required in the one case than in the
other."
Judgment affirmed.