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Mar. 3, 1865, 8. dated the 11th day of March, 1865, are deemed to have 21, v. 13, p. 490.
voluntarily relinquished and forfeited their rights of citi. zenship, as well as their right to become citizens; and such deserters shall be forever incapable of holding any oflice of trust or profit under the United States, or of exercising
any rights of citizens thereof. Certain sol. SEC. 1997. No soldier or sailor, however, who faithfully diers and sailors 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 'Sve 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. Avoiding the
SEC. 1998. Every person who hereafter deserts the miliMar. 3, 1865, s. tary 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.
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 do. according to his enlistment until the nineteenth day of
Fuly 18, 1867, v. April, eighteen hundred and sixty-five, and who, without 15, p. 14. proper authority or leave first obtained, quit his command
See sec. 2438, Bounty Land,
or refused to serve after that date; but nothing herein Division, IV. 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. 7. SEC. 5455. Every person who entices or procures, or
Enticing doser-attempts or endeavors to entice or procure, any soldier in military or naval
the military service of the United States, or who has been
recruited for such service, to desert therefrom, or who aids 3 24, v. 12, p. 735; any such soldier in deserting or attempting to desert from July 1, 1861, 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
See noto 1.
See bec. 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 rerniranchise without giving right to forfeited pay. (Op., XIV, 124.)
If pay forfeited or a fino has passed into the Treasury, by a covering warrant or otherwise, neither can bo 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 com. mencement 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 comission 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 contine. ment 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. 173, Taft, Nov. 9, 1876.)
Forfeiture by desertion does not include monoy 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 passel 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 inay 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.
DISMISSAL AND RESIGNATION OF OFFICERS. Sec.
Sec. 1229. Dismissal in time of peace.
1624. Officers dismissed by President 1441. Officers dismissed or resigning to
may demand trial. (Art. 37.) escape dismissal.
Act amending article 37. 1624. Dismissal of officers. (Art. 36.)
Failing in examination. SEC. 1229.
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 : 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 16, chap. 2. missed by the sentence of a court-martial, or suffered to Officers resign in order to escape such dismissal, shall ever again
inissed or resign.
ing become an officer of the Navy.
July 16, 1862, s. 11, v. 12. p. 585.
See no 1, 2, 3.
Government on his entire military record, and an authoritative declaration that he See articles 61 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 descrtion 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 otticer in etfect an acquittal by the court. No authority to withhold pay on account of alleged desertion. (Op., ŠIII, 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-martial 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, 1861.)
Note2.- Where all act directed the Secretary of War to amend the record of an See gec. 1441. officor dismissed by court-martial, so that ho should appear on the rolls and records as if he had been continuously in the service: Held, that it conferred on the Presi. dent 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 8.-Congress, as a general rule, has anthorized the President to restore offi. See sec. 1441. cers to the retired list without requiring the advice and consent of the Senate. Where they have been reinstated to form å 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 title - De
Title 15,chap. 10. SEC, 1624, ART. 36. No officer shall be dismissed from
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 desertence of a general court-martial or in mitigation thereof. tion" for amend. ments to this sec. tion. Officer dig.
SEC. 1624, ART. 37. When any officer, dismissed by missed by the President may
order of the President since 3d March, 1865, makes, in Mar... rials
, writing, an application for trial, setting forth, under oath 12, v. 13, p. 489. that he has been wrongfully dismissed, the President shall,
See act of June 22,1874, aud notes as soon as the necessities of the service may permit, coninfra.
vene 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 thé punishment of such officer, the order of dismissal by the
President shall be void. June 22, 1874. That the accounting officers of the Treasury be, and are Pay on restora- hereby, prohibited from making any allowance to any June 22, 1874, 8. officer of the Navy who has been, or may hereafter be, dis2, v. 18, p. 191. missed 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.
Whenever on an inquiry bad pursuant to law, concernOficers failing ing the fitness of an officer of the Navy for promotion, it "Aug.5, 1882, "22 shall appear that such officer is unfit to perform at sea the Stat. 1., p. 286. duties of the place to which it is proposed to promote him, Naxal appropri by reason of drunkenness, or from any cause arising from
his own misconduct, and having been informell of and
See noto 4.
See note 5.
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 undorother circumstances, can be accomplished without confirmation of the Senate. The words "inferior oilicers" useil in the Constitution, mean suborilinate 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 anthorized by law to reinstato 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.-Ac officer, between date of dismissal and restoration, not demanding, in writing, as often as six months, i trial, vleu restored is not entitled to moru ihan “pay as on leave for six monthis from date of dismissal. (Op., XV, 569, Taft, July
21, 1876.) See act of Aug. Note F.- After a sentence of dismissal from the service has been approved and 5, 1882.
carried into execution, the President can not reconsider his approval and revoke tho 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, anı 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 resignation. intent to remain permanently absent therefrom, prior to 2, v. 13, p. 316.
Aug. 5, 1861, s. due notice of the acceptance of such resignation, shall be See note 6: deemed and punished as a deserter.
See title "Deserters and deser. tion" for amend. ments to this sec. tion.
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, Supremo Court, Otto, 103, p. 227 ; also see Otto, 97, p. 426, Mimmack's Case, and Otto, 102, 126, 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, tbe 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 supersedo 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 oflicer to the service, and leaves the dismissal in full force if those contingencies do not happen. (op., XII, p. 4, Stanbery, Aug. 6, 1886.)
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, þy 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, Up., XV, p. 560, A pr. 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 soction of the act of July 12, 1862, chap. 200, v. 12, p. 594, authorized and requested the President to dismiss and discharge from the inilitary 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 publio 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. Wbile 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 relieť 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.).
A resignation tendered to take effect on a future day, and placed in the hands of a 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 wag 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 bo 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
See sec. 1624.
[Soe also NAVAL ACADEMY.]
424. Chief of Burean.
Restriction on promotions.
Assignment to colleges.
See sec. 1476.
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 Mar. 3, 1871, s. 7, Chapter Four of this Title; v. 16, p. 536; Feb.
Ten chief engineers; 24, 1874, v. 18, p. 17; Aug. 5, 1882. Fifteen chief engineers; and 22 Stat. L., p. 286.
Forty-five chief engineers, who shall have the relative 20 A. G. Op., P. rank of lieutenant-commander or lieutenant.
And each and all of the above-named officers of the Engi. neer Corps shall have the pay of chief engineers of the Navy,
as now provided. Lientenant of Sixty passed assistant engineers, who shall have the relathe junior grade, tive rank of lieutenant or master; and Mar. 3, 1883, 1 Supp. R. S., p. 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. August 5, 1882. That the active list of the engineer corps of the Navy
shall hereafter consist of ten chief engineers with the relaEngineer tive 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;
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 07, par. 3, vol. 22, shall not exceed the reduced number which is fixed by the kuat., b: 208.5 PP. provisions of this act for the several grades.
That no officer now in the service shall be reduced in rank duced or dropped.
or deprived of his commission by reason of any provision of this act reducing the number of officers in the several staff corps:
See note 1.
Mar. 2, 1889, ch. 396.
Number not to
No officer re
that it should be received hy tho 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 potice, does not give effect to tho 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.