UNITED STATES SUPREME COURT DECISIONS ON-LINE

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 clubjuris

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.