21, v. 13, p. 490. Mar. 3, 1865, 8. dated the 11th day of March, 1865, are deemed to have voluntarily relinquished and forfeited their rights of citizenship, as well as their right to become citizens; and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof. Certain soldiers and sailors last section. 15, p. 14. SEC. 1997. No soldier or sailor, however, who faithfully not to incur the served according to his enlistment until the 19th day of forfeitures of the April, 1865, and who, without proper authority or leave first July 19, 1867, v. obtained, quit his command or refused to serve after that See sec. 4749. date, shall be held to be a deserter from the Army or Navy; but this section shall be construed solely as a removal of any disability such soldier or sailor may have incurred, under the preceding section, by the loss of citizenship and of the right to hold office, in consequence of his desertion. SEC. 1998. Every person who hereafter deserts the military or naval service of the United States, or who, being 21, v. 13, p. 490. duly enrolled, departs the jurisdiction of the district in which he is enrolled, or goes beyond the limits of the United States, with intent to avoid any draft into the military or naval service, lawfully ordered, shall be liable to all the penalties and forfeitures of section nineteen hundred and ninety-six. Avoiding the draft. Mar. 3, 1865, s. Title 57. and sailors not to July 19, 1867, v. 15, p. 14. See sec. 2438, Bounty Land, Division, IV. SEC. 4749. No soldier or sailor shall be taken or held to Certain soldiers be a deserter from the Army or Navy who faithfully served be deemed de according to his enlistment until the nineteenth day of serters, etc. April, eighteen hundred and sixty-five, and who, without proper authority or leave first obtained, quit his command or refused to serve after that date; but nothing herein contained shall operate as a remission of any forfeiture incurred by any such soldier or sailor of his pension; but this section shall be construed solely as a removal of any disability such soldier or sailor may have incurred by the loss of his citizenship in consequence of his desertion. Title 70, chap. 5. SEC. 5455. Every person who entices or procures, or Enticing deser attempts or endeavors to entice or procure, any soldier in tions from the the military service of the United States, or who has been recruited for such service, to desert therefrom, or who aids 24, v. 12, p. 735; any such soldier in deserting or attempting to desert from July 1, 1864, v. 13, such service, or who harbors, conceals, protects, or assists 1877, v. 19. p. 253. any such soldier who may have deserted from such service, knowing him to have deserted therefrom, or who refuses military or naval service. Mar. 3, 1863, s. p. 343; Feb. 27, See note 1. See sec. 5455. Note 1.-The President may grant conditional pardon for desertion; may remit a part of the penalty or punishment without remitting the whole; may reenfranchise without giving right to forfeited pay. (Op., XIV, 124.) If pay forfeited or a fine has passed into the Treasury, by a covering warrant or otherwise, neither can be released without authority of Congress. (Op., VIII, 281; XIV, 599; and XVI, 1.) Desertion is a continuing offense. Limitation to trial begins to run from commencement of the offense, except where, by reason of "manifest impediment," the accused is not amenable to justice within two years from that time. In such a case it runs from the removal of the impediment. Continuing commission limited by the obligation to serve under engagement. When that ceases the commission terminates in cases not excepted. "Amenable" signifies within the reach and power of the military authorities to bring to trial. (Op., XV, p. 152, Taft, Sept. 1, 1876.) Where forfeiture or loss of pay is made part of a sentence, in addition to confinement or suspension from duty, the former may be remitted by the proper authority, in whole or in part, without also remitting the latter. (Op., XV, p. 175, Taft, Nov. 9, 1876.) Forfeiture by desertion does not include money of the deserter found in possession of or deposited with paymaster. (Op., XIII, p. 210, Hoar, Feb. 8, 1870.) The honorable discharge of a soldier is a formal, final judgment passed by the to give up and deliver such soldier on the demand of any officer authorized to receive him, shall be punished by imprisonment not less than six months nor more than two years, and by a fine not exceeding five hundred dollars; and every person who entices or procures, or attempts or endeavors to entice or procure, any seaman or other person in the naval service of the United States, or who has been recruited for such service, to desert therefrom, or who aids any such seaman or other person in deserting or in attempting to desert from such service, or who harbors, conceals, protects, or assists any such seaman or other person who may have deserted from such service, knowing him to have deserted therefrom, or who refuses to give up and deliver such sailor or other person on the demand of any officer authorized to receive him, shall be punished by imprisonment not less than six months nor more than three years, and by a fine of not more than two thousand dollars, to be enforced in any court of the United States having jurisdiction. Sec. DISMISSAL AND RESIGNATION OF OFFICERS. 1229. Dismissal in time of peace. 1441. Officers dismissed or resigning to escape dismissal. 1624. Dismissal of officers. SEC. 1229. (Art. 36.) Sec. 1624. Officers dismissed by President Act amending article 37. Failing in examination. July 13, 1866, s. officer in the mili- Title 14, chap. 1. tary, or naval service shall in time of peace be dismissed July 15, 1870, s. from service except upon and in pursuance of the sentence 17, v. 16, p. 319; of a court-martial to that effect, or in commutation thereof. 5, v. 14, p. 92. [Section 1230 of the Revised Statutes is almost the same as art. 37, sec. 1624, except the words "since 3d March, 1865," are omitted.] SEC. 1441. No officer of the Navy who has been dis- Title 15, chap. 2. missed by the sentence of a court-martial, or suffered to resign in order to escape such dismissal, shall ever again become an officer of the Navy. Officers disInissed, or resign. ing to escape dismissal. July 16, 1862, s. 11, v. 12, p. 585. See notes 1, 2, 3. See articles 61 Government on his entire military record, and an authoritative declaration that he left the service in a status of honor. As such it relieves him from a charge of deser- and 62 for the tion appearing on the rolls. Does not restore pay and allowances forfeited by sen- government of tence of a military court-martial for desertion. (Court of Claims, VIII, 110; IX, 190, the Navy, p. 21. Wallace, XV, 34, A seaman charged before a court-martial with desertion may be found guilty of attempting to desert. (Howard, 20, p. 65.) In a trial for theft and desertion, sentence and conviction disapproved and prisoner restored to duty. Action of reviewing officer in effect an acquittal by the court. No authority to withhold pay on account of alleged desertion. (Op., XIII, p. 459, Bristow, June 21, 1871.) Note 1.-Congress did not intend by this clause to preclude the President from reappointing officers dismissed by sentence of court-inartial to whom he has extended a pardon. Pardon purges the offense, but does not of itself restore lost position. (Op. XI, p. 19, Mar. 12, 1864.) Note 2.-Where an act directed the Secretary of War to amend the record of an officer dismissed by court-martial, so that he should appear on the rolls and records as if he had been continuously in the service: Held, that it conferred on the President the power to appoint in the usual way. If so appointed, the commission should refer to the act, in a proper manner, under which the appointment was made, by nomination and confirmation of the Senate.-Op. XIV, 448, Williams, Aug. 13, 1874; but see Court of Claims, XIV, 573; XV, 22. Note 3.-Congress, as a general rule, has authorized the President to restore offi cers to the retired list without requiring the advice and consent of the Senate. Where they have been reinstated to form a part of the active force of the Army, a different phraseology has been employed-requiring the advice and consent of the Senate. An officer dismissed by sentence of a court-martial can not, under section See sec. 1441. See sec. 1441. Title 15,chap. 10. officers. SEC. 1624, ART. 36. No officer shall be dismissed from Dismissal of the naval service except by the order of the President or July 13, 1866, s. by sentence of a general court-martial; and in time of peace 5, v. 14, p. 92. no officer shall be dismissed except in pursuance of the senserters and deser tence of a general court-martial or in mitigation thereof. See title "De tion" for amend ments to this sec tion. missed by the President may demand trial. Mar. 3, 1885, 8. 12. v. 13, p. 489. See act of June 22, 1874, and notes infra. Officer dis- SEC. 1624, ART. 37. When any officer, dismissed by order of the President since 3d March, 1865, makes, in Writing, an application for trial, setting forth, under oath that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed. And if such courtmartial shall not be convened within six months from the presentation of such application for trial, or if such court, being convened, shall not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. June 22, 1874. tion. June 22, 1874, 8. 2, v. 18, p. 191. See note 4. That the accounting officers of the Treasury be, and are Pay on restora hereby, prohibited from making any allowance to any officer of the Navy who has been, or may hereafter be, dismissed from the service and restored to the same under the provisions of the twelfth section of the act of March third, eighteen hundred and sixty-five, entitled, "An act to amend the several acts heretofore passed to provide for the enrolling and calling out the national forces, and for other purposes," [sec. 1624, R. S.] to exceed more than pay as on leave for six months from the date of dismissal, unless it shall appear that the officer demanded in writing, addressed to the Secretary of the Navy, and continued to demand as often as once in six months, a trial as provided for in said act. Aug. 5, 1882. Officers failing in examination. Aug. 5, 1882, 22 Stat. L., p. 286. [Naval appropri See act of Aug. 5, 1882. Whenever on an inquiry had pursuant to law, concerning the fitness of an officer of the Navy for promotion, it shall appear that such officer is unfit to perform at sea the duties of the place to which it is proposed to promote him, by reason of drunkenness, or from any cause arising from his own misconduct, and having been informed of and 1228 R. S., be reinstated except by reappointment, confirmed by the Senate. This is a clear recognition that restoration of officers separated from the service under other circumstances, can be accomplished without confirmation of the Senate. The words "inferior officers" used in the Constitution, mean subordinate or inferior officers in whom, respectively, the power of appointment may be invested by Congress in the President, the courts of law, and the heads of Departments.-C. C., XIV, 573, Collin's Case. See sec. 1594, Retirement. When the President is authorized by law to reinstate a discharged Army officer, he may do so without the advice and consent of the Senate. When he exercises the discretion vested in him by an act of Congress, of reinstating an officer, and expresses his will by an order to that effect, the officer acquires a vested right to the office. By antedating an appointment or commission he can not create a liability on the part of the Government, but the legislative branch of the Government can.-C. C., XV, 22, Collin's Case. Note 4.-An officer, between date of dismissal and restoration, no! demanding, in writing, as often as six months, a trial, when restored is not entitled to more than "pay as on leave for six months" from date of dismissal. (Op., XV, 569, Taft, July 21, 1876.) Note 5.-After a sentence of dismissal from the service has been approved and carried into execution, the President can not reconsider his approval and revoke the sentence. (Op., IV, p. 274, Nov. 3, 1843; Op., VII, p. 99, Apr. 11, 1855; Op., X, p. 64, June 13, 1861; Op., XI, pp. 19 and 251, Mar. 12, 1864, and June 20, 1865, respectively; Op. XV. p. 291, and Feb. 24, 1881.) The President, by and with the advice and consent of the Senate, can supersede heard upon the charges against him, he shall not be placed on the retired-list of the Navy, and if the finding of the board be approved by the President, he shall be discharged with not more than one year's pay. [One year's leave pay, as decided by the accounting officers in 1882.] SEC. 1624, ART. 10. Any commissioned officer of the Title 15,chap. 10. Navy or Marine Corps who, having tendered his resigna- Desertion by tion, quits his post or proper duties without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of such resignation, shall be deemed and punished as a deserter. resignation. v. 12, p. 316. See note 6. Aug. 5, 1861, s. 2, See title "Deserters and desertion" for amend ments to this sec a military or naval officer by the nomination of a successor. The confirmation and appointment of the latter vacates the office of the former. (Blake's Case, Supreme Court, Otto, 103, p. 227; also see Otto, 97, p. 426, Mimmack's Case, and Otto, 102, 426, McElrath's Case.) So much of this section (1624) as relates to dismissal in time of peace did not take effect before August 20, 1866, on which day, in contemplation of law, the rebellion against the national authority was suppressed. (S. C., Otto, 102, p. 426.) Not the effect of this act (sec. 1624) to withdraw the power of the President to supersede an officer by appointment, by and with the advice and consent of the Senate, of another. (Otto. 103, p. 226.) Article 37, section 1624 (12 of act of Mar. 3, 1865, 13 Stat., 489), is constitutional and imperative. It provides, in certain contingencies, for the restoration of the officer to the service, and leaves the dismissal in full force if those contingencies do not happen. (Op., XII, p. 4, Stanbery, Aug. 6, 1866.) The President in 1861 had the power to dismiss an officer from the Marine Corps. (Tyler's Case, Op., XV, p. 421, Jan. 8, 1878.) Dismissal of an acting master, March, 1862, by the Secretary of the Navy, lawful. In the absence of legislation, the Secretary had a right to determine at what time an acting appointment should cease. (A. M. Smith's Case, Op., XV, p. 560, Apr. 25, 1876.) The Secretary of the Navy had the power to dismiss an "acting gunner on temporary service" in the volunteer Navy. The power to appoint gunners to an undefined extent does not preclude the appointment of acting gunners also. (Soper's Case, Op., XV, p. 564, June 10, 1876.) The seventeenth section of the act of July 12, 1862, chap. 200, v. 12, p. 594, authorized and requested the President to dismiss and discharge from the military service, either in the Army, Navy, Marine Corps, or volunteer force in the United States service, any officer for any cause which, in his judgment, either rendered such officer unsuitable for, or whose dismission would promote, the public service. This section was repealed by section 5 of an act approved July 13, 1866, chap. 176, v. 14, p. 90. In a case where an officer was dismissed by the President, and the dismissal revoked in due form, no unreasonable time having elapsed, the vacancy not having been filled, and the rights of other parties not having intervened, the revocation presents only a case of Executive authority, which has repeatedly been exercised; but in view of late decisions the court gave judgment for the claimant in order that the case might go to the Supreme Court. (C. C., XVII, p. 344, Corson's Case, Dec., 1881, term.) The President, by and with the advice and consent of the Senate, may, by reappointment and commission, restore lost rank, including seniority, to an officer of the Army or Navy. Cases cited. (Op. VIII, 223 Cushing, Dec. 10, 1856.) In the same way he can correct the date of a military appointment, or an error in the date of appointment, or an inadvertence to nominate an officer entitled to promotion by ten years' service. (Op. III, 307; VIII, 223.) The right of a reinstated officer to pay during the time he was out of the service must depend on the will of Congress, as expressed in the act authorizing his reinstatement, and not upon the date of his commission. (C. C., XV, 41, Kilburn's Case.) Commissions signed by his predecessor should be regarded by the President as conclusive evidence of the officers' right to the rank and authority given thereby. While their commissions stand the President should respect them, and in making promotions by seniority have regard for them. If wrong has been sustained, Congress can remedy it by a special relief act empowering the President. (Op. XVI, 583, Devens, Dec. 9, 1880.) Note 6.-An offer to resign is revocable by the officer prior to its acceptance. After acceptance and before it has taken effect it may be modified or withdrawn entirely by the consent of both parties. Control over it, in point of duration, extends no further. (Op., XIV, p. 260, June 17, 1873; Op., XII, p. 555, Feb. 10, 1869.) tion. A resignation tendered to take effect on a future day, and placed in the hands of a See sec. 1624. party to be delivered to the President, can be recalled before delivery. Its subsequent delivery is not binding. (Op., XIII, p. 77, June 2, 1869.) A valid resignation of a military officer, followed by an unconditional acceptance of it, operates to remove the incumbent, and a new appointment is required to restore him to the office. (Op., XII, p. 555, Feb. 10, 1869.) But in cases where the officer was insane at time of resignation, his action was held to be a nullity and capable of being rectified. (Ops., III, p. 641, VI, p. 456, and X, p. 229.) If the vacancy has been properly filled, the acceptance can not be legally revoked. (Op., XV, p. 469, Mar. 22, 1878; Otto, 103, p. 227.) A civil officer has a right to resign at his own pleasure, and it is only necessary Title 10. SEC. 424. The Chief of the Bureau of Steam Engineering Chief of Bureau. shall be appointed from the chief engineers of the Navy, July 5, 1862, s. and shall be a skillful engineer. 1, v. 12, p. 510. Title 15, chap. 1. SEC. 1390. The active list of the Engineer Corps of the Engineer Navy shall consist of seventy chief engineers, who shall be Corps, number divided into three grades, by relative rank, as provided in Chapter Four of this Title; and rank. Mar. 3, 1871, s. 7, v. 16, p. 536; Feb. 24, 1874, v. 18, p. 17; Aug. 5, 1882. 22 Stat. L., p. 286. See sec. 1476. 20 A. G. Op., p. 358. Lieutenant of Ten chief engineers; Fifteen chief engineers; and Forty-five chief engineers, who shall have the relative rank of lieutenant-commander or lieutenant. And each and all of the above-named officers of the Engineer Corps shall have the pay of chief engineers of the Navy, as now provided. Sixty passed assistant engineers, who shall have the rela the junior grade, tive rank of lieutenant or master; and Mar. 3, 1883, 1 Supp. R. S., p. 401. See note 1. August 5, 1882. Forty assistant engineers, who shall have the relative rank of master or ensign; and the said assistant engineers shall have the pay of passed and assistant engineers of the Navy, respectively, as now provided. That the active-list of the engineer corps of the Navy shall hereafter consist of ten chief engineers with the relaEngineertive rank of captain, fifteen chief engineers with the relative Corps, number of rank of commander, forty-five chief engineers with the relaR. S. sec. 1390. tive rank of lieutenant-commander or lieutenant, sixty passed assistant engineers, and forty assistant engineers, with the relative rank for each as now fixed by law; officers. Mar. 2, 1889, ch. 396. Number not to be exceeded. And after the number of officers in the said grades shall Mar. 3, 1883, ch. be reduced as above provided, the number in each grade 97, par. 3, vol. 22, shall not exceed the reduced number which is fixed by the R. S., p. 401. provisions of this act for the several grades. Stat. L., 1 Supp. No officer re duced or dropped. That no officer now in the service shall be reduced in rank or deprived of his commission by reason of any provision of this act reducing the number of officers in the several staff corps: that it should be received by the Executive. Its acceptance or rejection by him is unimportant. (U. S. v. Wright, 1 McLean, 509.) A resignation does not become operative until the officer is officially notified of the acceptance of the same. Mere acceptance, without notice, does not give effect to the resignation. It is not until due notice of the same is received that the officer is legally separated from the Army and made a civilian, and up to the date of such notice he is entitled to pay. (Winthrop's Digest, p. 430.) Note 1.-The titles of first and second assistant engineers were changed to passed and assistant engineers, respectively, February 24, 1874. The grade of third assistant was abolished July 15, 1870. |