nor a soldier within the ordinary meaning of that term. Where such a drafted man failed to report and subsequently within four months enlisted elsewhere, held upon an application by him to have the charge of desertion removed under the act of March 2, 1889, that not being a soldier in the military service within the meaning of the act at the time he became a "deserter," the same did not apply to his case and that therefore the charge could not be removed. Cards 2041, 2042, May, 1896.

1115. Sec. 7 of the act March 2, 1887, provides that the charge of desertion shall not be removed if the soldier left his command while in arrest or under charges for breach of military duty. Where a soldier deserted in 1865, while in arrest and under charges for breach of military duty, after the expiration of his term of enlistment, it was held that he was still a soldier at the time he deserted and that therefore the section named applied in his case and precluded a removal of the charge of desertion. Card 3099, April, 1897.

1116. Held that a charge of desertion entered against a soldier in a particular term of enlistment is removed by an honorable discharge from such enlistment. Card 2041, May, 1896.

1117. A pardon does not operate retroactively, and cannot therefore "remove a charge" of desertion. L, 395, June, 1886; 42, 406, August, 1890; 43, 36, September, 1890. It does not wipe out the fact that the party did desert, nor can it make the record say that he did not desert. It cannot change facts of history. 58, 446, March, 1893.

1118. A deserter at large from the volunteer army was drafted in 1864, and served as a drafted soldier until mustered out. Held that his status as such drafted soldier was unaffected by the fact that he was in desertion at the time he was drafted; nor was his status as a soldier in desertion affected by his being drafted or by his service as a drafted man. Card 2106, March, 1896.

1119. Ordinarily desertion would be sufficient evidence that service during the term in which it occurred was not honest and faithful, but if in an exceptional case the Secretary of War should decide that it was, notwithstanding the desertion, he would be acting within his discretion under the act of August 1, 1894. The provision in the act of June 16, 1890, that desertion renders service not honest and faithful is limited to the purposes of that act and does not control enlistments under the act of 1894. Cards 2004, January, 1896; 2121, March, 1896; 3530, September, 1897; 3794, June, 1898.

1120. When a soldier deserts from one regiment and enlists in another he may be held to serve out both enlistments or either of them. In the latter case all that need be done is for the Government to aban

don the enlistment in one regiment (ordinarily by a discharge therefrom without honor) and recognize the enlistment in the other. No transfer is necessary. Card 2115, March, 1896.

1121. There is no law extending amnesty to soldiers who are now deserters from the U. S. army. Card 778, December, 1894.

1122. The restoration of a deserter to duty without trial under par. 128, A. R. (139 of 1901), does not operate as an acquittal, or relieve the deserter from the forfeitures of pay incurred by operation of law under pars. 1513 and 1514, A. R. (1380, 1381 of 1895; 1557, 1558 of 1901.) L, 122, March, 1886; 21, 224, December, 1887. Nor does it operate to remove the charge of desertion and substitute therefor that of absence without leave. Card 4076, April, 1898.

DISBURSING OFFICER.

1123. A disbursing officer of the army who has paid out public moneys upon vouchers which prove to have been false or forged is personally responsible to the United States for the amount of the loss; and it is the usage of the Government to hold such an officer so responsible, however innocent of criminality he may be; the fact that he has acted in good faith not affecting his legal liability. Such an officer, further, is not entitled to call upon the Government to prosecute a civil suit against the party chargeable with the fraud, but he may legally himself initiate such a suit if he desires to do so for his own. indemnity. XVI, 635, October, 1865; XXVIII, 20, 42, August, 1868; XXXII, 423, March, 1872.

1124. It is in accordance with the usage of the military service, as well as the general practice under existing laws, for an officer of the army charged with the disbursement of public funds to pursue in his own name and representative capacity the proper legal remedies when such funds are illegally appropriated or withheld by third parties. This official function of the officer cannot properly be imposed upon the head of his department. The Secretary of War cannot be required to institute the legal proceedings, nor would his doing so make the claim any more a public claim of the United States than it is as prosecuted by the disbursing officer in his official capacity. Thus advised, in the case of such an officer, a portion of whose public funds were in the possession of a bank, as an authorized public depositary, at a time when the same stopped payment and went into insolvency, that the officer should file and prove his claim before the Register in Bankruptcy and prosecute the collection of the same so far as necessary and practicable; and further that a due and reasonable diligence on his part in pursuing the legal measures open to him for realizing the amount for which he was officially responsible would furnish the

strongest support to any application, which he might in future prefer, to be discharged from liability for any loss to the United States resulting from the failure of the depositary. XXXV, 365, May, 1874.

66

1125. Congress, in appropriating money for the new State, War and Navy Building, has provided that the amounts shall be expended under the direction of the Secretary of War." While the Secretary would thus be authorized to commit the disbursing of the funds employed to any proper person, yet advised, in view of the policy of the law as expressed in Sec. 1153, Rev. Sts., that the Secretary would properly designate as the disbursing agent the engineer officer engaged in superintending the work, especially since-as provided in said section-the duty of disbursing would thus be performed without any charge to the United States. XLI, 283, June, 1878.

1126. Sec. 3620, Rev. Sts., provides that a disbursing officer, having on deposit in a public depositary public moneys intrusted to him for the purpose of disbursement, shall "draw for the same only in favor of the persons to whom payment is made." Where, upon the order of a party to whom the United States was indebted in a certain amount, a disbursing officer made payment of the amount to a firm to which such party was indebted-advised that such payment was clearly in contravention of the statute. 53, 239, April, 1892.

1127. Upon construing Sec. 1766, Rev. Sts., in connection with the original act-that of January 25, 1828, entitled "An Act to prevent defalcations on the part of the disbursing agents of the Government”— held that such section, though expressed in somewhat general terms, properly applied only to bonded disbursing officers. 61, 167, August, 1893.

1

1128. Held that the act of April 20, 1874, c. 117, entitled "An Act to provide for the inspection of the disbursements of appropriations made by officers of the Army," applied only to the inspection of disbursements of monies appropriated by legislation of Congress. 48, 184, July, 1891.

1129. Any officer of the United States "having any public money entrusted to him for disbursement" is a "disbursing officer" within the meaning of Secs. 3620 and 5488, Rev. Sts. Held, therefore, that medical officers entrusted with moneys for disbursement under general orders 116 and 136 A. G. O. 1898, were such disbursing officers. Card 5269, November, 1898. But held that the moneys received by the quartermaster in charge of a U. S. transport from parties travelling thereon, for meals furnished them can be applied, under Sec. 3618, Rev. Sts., and the act of March 3, 1875 (18 Stat., 410), to the purchase of fresh supplies. Card 5048, October, 1898.

2

1 But see the general provision of the Army Appropriation Act of June 16, 1892, in regard to the withholding of the pay of officers under this section.

See Dig. Dec. Second Comp., vol. 3, p. 324.

DISCHARGE.

1130. The classification of discharges has never been assumed by Congress but has been left by it to the Executive branch of the Government. Card 2731, November, 1896. At present there are three kinds of discharges expressly recognized, to wit: The honorable, the dishonorable, and the discharge without honor. The dishonorable discharge is given only in the case of discharge by sentence of courtmartial. The discharge without honor is given in the cases first specified in circular 15, Headquarters of the Army, 1893; but this circular did not create such discharge; it merely gave it a name. Before the issue of the circular and as far back as the rebellion (notwithstanding that it was from time to time theoretically asserted that the only kind of discharges known to the law were the honorable and the dishonorable, and that all discharges except by sentence of court-martial were honorable) a third kind of discharge was out of necessity resorted to. It is now recognized that there is a kind of discharge which is neither honorable nor technically dishonorable, but must be classified by itself this is the "discharge without honor." There were many soldiers summarily discharged during the rebellion for causes tainting the character of their discharges. In numerous cases the orders were made to read dishonorably discharged, although a dishonorable discharge in the technical sense of that term cannot be imposed except by sentence of a court-martial. A summary discharge, cannot be a dishonorable discharge, if the term is used in such technical sense, but it may be for a cause tainting the character of the discharge a discharge manifestly not honorable. Such a summary discharge is now called a discharge without honor. Its name however is only important as a recognition of a discharge, not technically dishonorable, but not honorable in fact. (See X, 286, September, 1864.) It might not be going too far to say that when soldiers were summarily “dishonorably discharged" during the rebellion the order was so worded simply because the soldier had done something to disgrace the service, and could not be in fact honorably discharged. 60, 241, June, 1893. Thus where a volunteer soldier under arrest for desertion was dishonorably discharged" by order on account primarily of the desertion, held that while his discharge was not technically dishonorable, it was what is now called a discharge without honor, and therefore not honorable. Card 2128, March, 1896. The term also covers the summary dismissal of an officer. 52, 403, March, 1892; Card 1503, August, 1895.

1131. On the question whether a discharge by order (summary) was of the class designated as not honorable, i. e. without honor, held that

in the absence of express evidence that such discharge was given on account of an unfitness for the service for which the person discharged was culpably responsible, or by reason of fraud in the enlistment, or when the person at the time of his discharge was in a status of dishonor, i. e. in confinement under the sentence of a general court-martial or of a civil court, the discharge should be deemed honorable. Card 270, September, 1894.

1132. The discharge without honor is not a punishment. When a soldier is discharged before or on expiration of service, he is entitled to a certificate to that effect, but he is not entitled to a certificate of honorable discharge (which is now only given to soldiers whose service has been honest and faithful) if in fact his service has not been honest and faithful. In such case he has failed to earn an honorable discharge and is given a discharge which discloses that fact-a discharge without honor. This discharge carries with it forfeiture of retained pay, if any, as an incident, not of the discharge but of the failure to render honest and faithful service. Not being a discharge "by way of punishment for an offence" (Sec. 1290, Rev. Sts.), forfeiture of travel allowances is not an incident of it. But when a soldier is discharged without trial on account of fraudulent enlistment, or "for disability caused by his own misconduct" (¿. e. "without honor"), travel allowances are forfeited; in the first case by reason of the right of the Government, on the discovery of the fraud, to rescind the contract of enlistment and thus avoid all unexecuted obligations under it, and in the second under the provisions of the Army Appropriation Act, approved March 16, 1896. Cards 1862, November, 1895; 1906, December, 1895; 6569, June, 1899. But a soldier discharged without honor, except for fraudulent enlistment, does not forfeit clothing money due him at date of discharge. Card 2107, March, 1896.

1133. A company of volunteers having in 1862 refused to proceed to a certain point when ordered to go there, was subsequently duly mustered out because of its refusal to obey the order. Held that the members of the company were discharged without honor. Card 1915, December, 1895.

1134. Held that the discharge of a cadet from the United States Military Academy, in 1862, for demerits in excess of the limit fixed, was what is now known as a discharge without honor. Card 2533, August, 1896.

The discharge without honor has been given upon the remission of a sentence (S. O. 169, A. G. O., July 26, 1893); also where sentence was set aside on account of fatal defect in record (par. 55, S. O. 257, A. G. O., 1898).

'Concurred in by the Comptroller of the Treasury under date of Dec. 14, 1895, overruling last paragraph of sec. 880 and section 1449, Digest Dec. Second Comptroller, Vol. 3, 1884-1893.