MILITIA. 197

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 commissioned officers, one of whom shall
be a surgeon, shall be appointed whose duty it shall be to de-
termine 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 officer whose grade or promotion would be
affected by the decision of such board in any case that may
come before it shall participate in the examination or decision
of the board in such case. Such board is hereby invested with
the powers of courts of inquiry and courts-martial, and when-
ever it finds an officer incapacitated for active service, shall
report such fact to the Governor, stating cause of incapacity,
Whether from disability, unfitness or incompetence; and if he
approves such findings, such officer shall be placed on the re-
dred list or discharged, as provided for in this section. The
members of the board shall, before entering upon the dis-
charge of their duties, be sworn to an honest and impartial
performance of their duties as members of such board. No
officer shall be placed upon the retired list or discharged by
the action of such board before having had a full and fair
tearing before the board, if upon due notice he shall demand
It. It shall not be necessary to refer any case for the action
of such board arising under this section, unless the officer des-
ignated to be placed upon the retired list or discharged shall
within twenty days after being notified that he will be so re-
tired or discharged serve on the Adjutant-General a notice in
writing that he demands a hearing and examination before
such boards. Boards shall be appointed by the Governor for
officers above the grade of Colonel and Captain of the Naval
Brigade, and by the commanding officer of the First Brigade
for officers below the grade of Brigadier-General, and for offi-
cers in the Naval Brigade below the rank of Captain by the
commanding officer of the Naval Brigade. The Governor may
withdraw from active service and command and place upon
the retired list any officer who has been twenty-five years in
the active service of the National Guard, on the recommenda-
tion of the commanding officer of the First Brigade or Naval
Brigade. Vacancies created by the operation of this section
shall be filled in the same manner as other vacancies.

52. Commanding officers of regiments and of battalions not
part of regiments shall appoint and warrant the non-commis-