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be no more appointments or promotions in the department until the further order of Congress, but this requirement was modified by the act of June 4, 1872 (17 ibid., 219), which authorized the appointment of a Paymaster-General with the rank of colonel to fill an existing vacancy, and by the act of March 2, 1875 (18 ibid., 338), and joint resolution No. 7 of March 2, 1875 (ibid., 524), which fixed the number of paymasters at fifty. The rank of brigadier-general was restored to the office of Pavmaster-General by the act of July 22, 1876 (19 ibid., 95), and the restriction established by the act of March 3, 1869, was finally removed by the act of March 3, 1877 (ibid., 270).

A gradual reduction in the strength of the department was provided for in the acts of March 3, 1883 (22 Stat. L., 451), and July 5, 1884 (23 ibid., 108), by authorizing the voluntary retirement of paymasters of over twenty years' service, and by a requirement that there should be no more original appointments to the grade of lieutenantcolonel and major until the number of officers in the department had been reduced to thirty-five and the organization oi the department was thereafter to be as follows: one paymaster-general (brigailier-general), two assistant paymasters-general (colonels), three deputy paymasters-general (lieutenant-colonels), and twenty-nine paymasters (majors). By the act of July 16, 1892 (27 ibid., 175), the number of majors was reduced to twenty-five, by the act of February 12, 1895 (28 ibid., 655), it was still further reduced to twenty, which was declared to be the number authorized by law.

By section 21 of the act of February 2, 1901 (31 Stat. L., 75+), the permanent strength of the department was fixed at one paymaster-general with the rank of brigadiergeneral, three assistant Paymasters-General with the rank of colonel, four deputy paymasters-general with the rank of lieutenant-colonel, twenty paymasters with the rank of major, and twenty-five paymasters with the rank of captain, mounted. A system of details was also established by the operation of which the permanent commissioned personnel of the department will be replacedl, as vacancies occur, by officers detailed from the line of the Army for duty in the Pay Department.

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Composition.
Feb. 2, 1901, S.

899. The Medical Department shall consist of one 18:31,6372s. Surgeon-General with the rank of brigadier-general,

eight assistant surgeons-general with the rank of colonel, twelve deputy surgeons-general with the rank of lieutenantcolonel, sixty surgeons with the rank of major, two hundred and forty assistant surgeons with the rank of captain and first lieutenant, the Hospital Corps as now authorized by law and the Nurse Corps. Sec. 18, act of February 2, 1901 (31 Stat. L., 752).

900. On or after the passage of this act the President may appoint for duty in the Philippine Islands fifty surgeons of volunteers with the rank and pay of major, and one hundred and fifty assistant-surgeons of volunteers with the rank and pay of captain mounted, for a period of two years: Provided, That so many of these volunteer medical officers as are not required shall be honorably discharged the service whenever, in the opinion of the Secretary of War, their services are no longer needed. Ibid.

Volunteer surgeons.

Ibid.

1 For a note containing the statutory history of the Medical Department see end of chapter.

901. Officers of the Medical Department shall take rank Rank and preand precedence in accordance with date of commission or July 5, 1884, v.

23, p. 111. appointment, and shall be so borne on the official Army Register. Act of July 5, 1884 (23 Stat. L., 111).

APPOINTMENTS, PROMOTIONS, EXAMINATIONS.

Par.

902. Appointments, examinations.
903. Promotion after five years' service.
904. The same, examinations.

Par.
905. Credit for service.
906. Relative rank on appointment.

Promotion af.

Mar. 2, 1867, c.

902. No person shall receive the appointment of assistant Examinations surgeon unless he shall have been examined and approved 3, s. 1, v. 4, P, by an army medical board, consisting of not less than Sec. 1172, R.S. three surgeons or assistant surgeons, designated by the Secretary of War; and no person shall receive the appointment of surgeon unless he shall have served at least five years as an assistant surgeon in the Regular Army, and shall have been examined and approved by an army med• ical board, consisting of not less than three surgeons, designated as aforesaid. 903. Assistant surgeons who have served five years as

ter five years' surgeons or assistant surgeons in the volunteer forces service. [shall]’ be eligible to promotion to the grade of captain. 245, 6. 5, v. 14, p. Sec. 4, act of June 23, 1874 (18 Stat. L., 244).

4 904. Before receiving the rank of captain of cavalry, of assistant sur assistant surgeons shall be examined, under the provisions toons for promoof an act approved October first, eighteen hundred and ca. 26, Li 562; ninety, entitled "An act to provide for the examination 1892, v. 27, p. 276. of certain officers of the Army and to regulate promotions therein." Sec. 2, act of July 27, 1892 (27 Stat. L., 276).

905. The period during which any assistant surgeon ice. shall have served as a surgeon or assistant surgeon in the 18.4.):12,...99S. Volunteer Army during the war with Spain, or since, shall be counted as a portion of the five years' service required

423; June 23,
1874, s. 4, v. 18, p.
244.
Sec. 1170, R.S.
Examination

Credit for sery

*

*

*

No allowance will be made for the expenses of persons undergoing examination, but those who receive appointments will be entitled to travel allowances in obeying the first order assigning them to duty. Par. 1573, A. R., 1901.

The word “shall” omitted from the roll. * Section 1172, Revised Statutes, provides that “no person shall receive the appointment of surgeon

unless he shall have been examined and approved by an army medical board." The act of October 1, 1890 (26 Stat. L., 562), provides that “should the officer fail in his physical examination and be found incapacitated for service by reason of physical disability contracted in the line of duty, he shall be retired with the rank to which his seniority entitled him to be promoted.” An assistant surgeon reported by one board as "not qualified physically,” and by a subsequent board as “incapacitated for active service,” is not entitled to be retired as if he had passed examination, though he continues on the active list for several years, and requests examination for promotion. Steinmetz v. U. S., 33 Ct. Cls., 404.

to entitle him to the rank of captain. Sec. 18, act of Feh.

ruary 2, 1901 (31 Stat. L., 752). Relative rank. 906. Nothing in this section shall affect the relative rank Ibid.

for promotion of any assistant surgeon now in the service, or who may hereafter be appointed therein, as determined by the date of his acceptance of appointment or commission and as fixed in accordance with existing law and regulations. Ibid.

CONTRACT SURGEONS--DENTAL SURGEONS.

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907. In emergencies the Surgeon-General of the Army, with the approval of the Secretary of War, may appoint as many contract surgeons as may be necessary, at a compensation not to exceed one hundred and fifty dollars per month. Sec. 17. lbid.

908. The Surgeon-General of the Army, with the approval of the Secretary of War, is hereby authorized to employ dental surgeons to serve the officers and enlisted men of the Regular and Volunteer Army, in the proportion of, not to exceed one for every one thousand of said Army, and not exceeding thirty in all. Said dental surgeons shall be employed as contract dental surgeons under the same terms and conditions applicable to army contract surgeons, and shall be graduates of standard medical or dental colleges, trained in the several branches of dentistry, of good moral and professional character, and shall pass a satisfactory professional examination. Ibid,

909. Three of the number of dental surgeons to be employed shall be first appointed by the Surgeon General, with the approval of the Secretary of War, with reference

The same.
Examination.
Supervision.
Ibid.

? This enactment replaces section 2 of the act of May 12, 1898 (30 Stat. L., 400), in pari materia. The office of contract surgeon was first established by regulation, but their compensation has been provided for in the annual acts of appropriation for the support of the Army. Such provision ceased to be made in the act of July 16, 1892 (27 stat. L., 175), and, until May 12, 1898, when their employment was again authorized by law.

A“contract” or “acting assistant" surgeon is not a military officer and has no military rank or status. He is amenable, indeed, to the military jurisdiction when employed with the Army in the field in time of war, but he is in fact no part of the military establishment, but is simply a civilian employed by the United States, under a special contract for his personal services as a medical attendant to the troops. When not serving with troops before the enemy he has no other relation to the military organization or the Government than that established by the terms of his contract, made in accordance with the Army Regulations. He is not subject to military orders in general, like an officer or soldier, but only to such orders or directions as properly pertain to the peformance of his particular duties. He is of course not eligible to be detailed as a member of a military court. As a civilian, however, he is entitled to the per diem allowance, etc., when duly attending a court-martial as a witness. Dig. Opin. J. A. G., par. 384.

to their fitness for assignment, under the direction of the Surgeon-General, to the special service of conducting the examination and supervising the operations of the others; and for such special service an extra compensation of sixty dollars per month will be allowed: Provided further, That dental-college graduates now employed in the Hospital Corps, who have been detailed for a period of not less than twelve months to render dental service to the Army, and who are shown by the reports of their superiors to have rendered such service satisfactorily, may be appointed contract dental surgeons without examination. Ibid.

DUTIES.

attendance

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cers, etc.

78, . 8, . 12, p.

Sec. 1171, R, S.

Right of com

910. Medical officers of the Army may be assigned by gussignment to the Secretary of War to such duties as the interests of the Sec, , -J 27

1892, . 27, p. 277. service may demand.” 911. The medical officers of the Army and contract sur

Profession geons shall whenever practicable attend the families of the families oi ottiofficers and soldiers free of charge. Act of July 5, 1884 23. ply , 1851, v. (23 Stat. L., 112).

912. The officers of the Medical Department of the Army .compervision of shall unite with the officers of the line, under such rules Mar. 3, 13. and regulations as shall be prescribed by the Secretary of 74.. War, in superintending the cooking done by the enlisted men; and the Surgeon-General shall promulgate to the officers of said corps such regulations and instructions as may tend to insure the proper preparation of the ration of the soldier.

913. Othcers of the Medical Department of the Army mana. shall not be entitled, in virtue of their rank, to command Feb 11, 1817 in the line or in other staff corps."

See. 1169, R. S. ? For regulations fixing the status and regulating the employment and duties of contract and dental surgeons see par. 1574 to 1589, Army Regulations, of 1901.

2 The Medical Department, under the direction of the Secretary of War, is charged with the duty of investigating the sanitary condition of the Army and making recommendations in reference thereto, with the duty of caring for the sick and woundel, making physical examinations of officers and enlisted men, the management and control of military, the recruitment, instruction and control of the Hospital Corps and of the Army Nurse Corps (female), and furnishing all medical and hospital supplies, except for public animals. Par. 1570, A. R., 1901.

The medical officer of a command is responsible (within reasonable limits) for the health of the men composing it. Where, in the course of the proper and regular performance of his function, he excuses men from duty on account of sickness or disability, the commanding officer should almost as a matter of course accept his action as conclusive and final. If he refuses to do so and orders on duty a soldier thus excused, he assumes the responsibility of any material injury that may thus result to the individual or the service, and, if injury results in fact, is amenable to trial for the military offense involved. Dig. Opin. J. A. G., par. 1658.

3 An officer of the Pay or Medical Department can not exercise command, except in his own department; but by virtue of his commission he may command all enlisted men like other commissioned officers. Par. 18, A. R., 1901,

H. Doc. 515-23

8, s, 9, 135.

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