ACT. 65. ] MILITIA. 195

SEC. 40. Officers shall take rank from date of commissions; an
officer who has served in the same grade continuously, either by
re-election or re-appointment, shall take rank from the date of
his first commission in the grade.

SEC. 41. A commissioned officer tendering his resignation be-
fore having served five years, if the Governor shall accept it,
shall receive an honorable discharge. If he has served five years
or more he shall receive a full and honorable discharge, provided
he shall not be under arrest or return to a military court for
any deficiency or delinquency; and, provided further, he be not
indebted to the State in any manner, and that his accounts for
money or for public property be correct. In computing the
time served, service as an enlisted man shall be allowed, and
the service is not required to be continuous. If the Governor
accepts the resignation of an officer who at the time shall be
under arrest, under charges, or returned to a military court for
any offense, deficiency or delinquency, such officer shall then
cease to be an officer of the National Guard, and shall receive
a discharge. in such form as the Governor shall direct; nor shall
he again be eligible to receive a commission unless he first re-
enlist, as provided in this chapter in the case of men dishonor-
ably discharged, and until he shall have performed at least
sixty per cent, of duty in each year under such enlistment for
two successive years.

SEC. 42. Any officer of the National Guard who has reached
the age of sixty-four years may be placed upon the retired list by
the Governor. Any commissioned officer who shall have served
in the military service of the State for fifteen years may, upon
his own request, be placed upon the retired list and withdrawn
from active service and command by the Governor. Any com-
missioned officer who has become, or shall hereafter become,
disabled and thereby incapable of performing the duties of his
office shall be withdrawn from active service and command and
placed on the retired list. Any commissioned officer who has
become, or shall hereafter become, unfit or incompetent, and
thereby incapable of performing the duties of his office, shall be
discharged upon the recommendation of his commanding
officer or upon the recommendation of an inspecting -officer;
such retirement or discharge shall be by order of the Governor,
and in either case shall be subject to provisions of this section.
Before making such order a board of not less than three com-
missioned officers, one of whom shall be a surgeon, shall be
appointed, whose duty it shall be to determine the facts as to
the nature and cause of incapacity of such officer as appears
disabled or unfit or incompetent from any cause to perform
military service, and whose case shall be referred to it. No