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1401. Forfeiture by sentence of a summary court is operative only on pay accruing after approval of the sentence unless otherwise specified in the sentence. Card 2791, December, 1896.

1402. In a sentence of forfeiture of "all pay due" (or "all pay now due "), imposed with dishonorable discharge, to add "or to become due" would give no further effect to the sentence. Otherwise where forfeiture is adjudged alone, unaccompanied by dishonorable discharge: there the term "or to become due" would forfeit pay falling due after the date of the promulgation of the approval and while the soldier remained in service. 46, 8, March, 1891.

1403. A sentence "to be dishonorably discharged from the service of the United States, forfeiting all pay and allowances," has the same meaning that it would have if the words "due him" were added after the word "allowances."1 Card 3009, March, 1897.

1404. A forfeiture remitted upon approval does not take effect. So where a forfeiture of pay adjudged a deserter was, upon the approval of his sentence, remitted by the reviewing authority, held that he was entitled to pay from the date of his arrest or surrender and return to military control-the date at which a deserter (A. R. 131; 142 of 1901) is considered as again in service," or rather resumes his service. L, 317, May, 1886.

1405. Where a soldier was sentenced "to be dishonorably discharged, forfeiting all pay and allowances, and to be confined for three months," and the dishonorable discharge was remitted in approving the sentence, held that the forfeiture was evidently intended to relate to pay due at the date of discharge, and that, as the discharge had been remitted, the forfeiture could apply only to pay due at the date of the receipt at the post of the order publishing the sentence. LI, 176, December, 1886.

1406. Where a sentence of forfeiture of ten dollars per month for a certain number of months was remitted thirteen days after promulgation, held that the forfeiture not affected by the remission was to be executed by stopping against the soldier's pay the thirtieth part of ten dollars for each and every day prior to the remission. LV, 227, December, 1887.

1407. As prescribed in paragraph 952, A. R. (1051 of 1901), an order remitting a forfeiture of pay operates only on the pay which becomes due subsequent to the date of the order; in other words the regulation is based upon the assumption that the forfeiture becomes fully executed each day as to that day's pay. Card 2332, June, 1896; 5411, December, 1898; 5883, 5898, February, 1899; 6311, April, 1899. 1408. Where a forfeiture of ten dollars per month for three months

'See Circular 6, A. G. O., 1897.

was imposed upon a soldier (in the first year of his enlistment), held that this could not be executed by forfeiting thirty dollars in one sum when so much had aggregated as pay due, but that, as his available monthly pay was nine dollars only (four dollars being retained under the act of June 16, 1890), the execution would be best managed by remitting one dollar for each month included in the sentence. 63, 54, December, 1893.

1409. Pay for a certificate of merit, like pay for continuous service, has always been held to be a part of the soldier's pay and as such subject to forfeiture by sentence of a court martial. Card 1308, April,

1895.

FORGERY.

1410. A disbursing officer who pays out money of the United States upon vouchers that are forged will in general make himself liable for the amount paid. Thus where such an officer paid out public money upon transportation requests, addressed to a railroad company and accepted by it, which requests had been fraudulently prepared by a quartermaster's clerk who had forged the name of the quartermaster thereto, held that the disbursing officer was responsible for the amount paid. 56, 208, October, 1892.

1411. A paymaster drew his check in favor of a discharged soldier for the amount due him on final settlement. The payee endorsed the check in blank, and the paymaster then, according to a common practice, sub-endorsed it, adding his official designation, merely for the purpose (though the endorsement did not so state), of identifying the signature of the payee. The writing in the body of the check was then removed or altered and the check filled in for a very much greater amount. The check thus raised was on the next day presented to and paid by the Assistant Treasurer at New York. Held that, while, in the hands of a bona-fide endorsee, the liability of the paymaster would have been that of a regular endorser, parol evidence not being then admissible to show that he endorsed merely for identification,' yet the loss in this case legally fell upon the Assistant Treasurer whose liability was the same as that of a bank which pays a forged check in a case in which the forgery has not been facilitated by the negligence of the drawer. 53, 312, May, 1892.

FRAUDULENT ENLISTMENT.

1412. This offence (constituted and made punishable as a violation of Art. 62, by the act of July 27, 1892, c. 272, s. 3) is defined in

1

1 Daniel on Negotiable Instruments, vol. 1, p. 719, and cases cited.

2 Byles on Bills (Sharswood's edition), 337, and cases cited.

Circ. No. 13, A. G. O. 1892.1 The misrepresentation or concealment characterizing it must have induced the enlistment of the soldier and must have related to a fact which if known would have caused his rejection. Where the offence consisted in his having concealed the fact that he had been discharged with a questionable character-viz., “very good except when intoxicated, then bad"-held that such offence was chargeable as "fraudulent enlistment," provided the knowledge of this fact on the part of the recruiting officer would have prevented the enlistment. 63, 153, January, 1894.

1413. A fraudulently enlisting soldier, may be disposed of in either. of two ways, viz., he may be brought to trial for his offence under the statute, or he may be discharged "without honor." If brought to trial and convicted, and his sentence does not include dishonorable discharge (as it need not do under the order prescribing a maximum punishment for this offence), held that the Government could not properly also summarily discharge him. While it might have resorted to either course, it would scarcely be just to subject the offender to both. 60, 174, June, 1893.

1414. The enactment of the law making fraudulent enlistment a military offence, did not take it out of the law of contracts. Fraudulent enlistment has a two-fold character-criminal and civil. In the latter character it is a fraudulent contract which may be avoided, and when a contract is avoided for fraud, the party committing the fraud has no right to the benefits of the contract. Paragraph 1519, A. R. (1386 of 1895; 1564 of 1901) simply carries out this principle. It is therefore legal under this regulation to summarily discharge a fraudulently enlisted soldier with loss of all pay and allowances, instead of bringing him to trial. 58, 318, March, 1893.

1415. A fraudulent contract of enlistment is not void but voidable only at the option of the Government. The Government, on becoming cognizant of the fraud, may avoid the contract, or waive the objection and allow it to stand-in which latter case the accepted service is as legal as that of any other soldier. Where the fraudulent character of an enlistment contract did not become known until after a part of it had been executed, held, that while the same, as to its unexecuted portion might legally then be avoided and terminated, yet, as to the part executed, it was a valid, contract, and the soldier could not lawfully be required to refund money paid for that part. 55, 183. August, 1892; Cards 355, 359, September, 1894; 494, October, 1894; 1624, August, 1895; 2022, January, 1896; 2717, November, 1896; 6398, May, 1899.

1416. There is a distinction between a fraudulent contract of enlist

See Court-Mar. Manual (1901), page 14, note 4. 16906-01-25

ment and the character of service thereunder. While the former is voidable at the option of the Government, the service is legal service and, if the contract be not avoided on account of the fraud, the soldier would be entitled to such a discharge upon completion of his term as his services may merit. And if the discharge is an honorable one, it should in general be viewed as establishing the fact that the service referred to therein was honest and faithful. Card 6406, May, 1899. 1417. Before fraudulent enlistment was made a military offence by the act of July 27, 1892, it was held that persons fraudulently enlisting (except those who were undischarged under a former enlistment) could not be tried for the fraudulent enlistment as a military offence, because when the act was done they were not in the "land forces." So in the act of 1892, receipt of pay or allowance was made part of the offence. The complete offence therefore is the entry into the service by means of a misrepresentation and the receipt of pay or allowance. The procuring of the enlistment by means of misrepresentation, &c., and not the misrepresentation itself, constitutes the offence. Card 2768, January, 1897; see § 312, ante.

1418. The act of enlisting without a discharge from a prior enlistment was punishable as fraudulent enlistment before the enactment of the legislation of July 27, 1892, there being no doubt that the soldier so enlisting is in the military service at the time of such fraudulent enlistment. In such a case it is not necessary to allege the receipt of pay or allowances. These words were inserted in the act of 1892 to meet the cases of men, not bound to service, who fraudulently enlist. It was thought that the view might be taken in such cases that the act of fraudulent enlistment was not committed in the military service and would not be sufficient, taken alone, to form the subject of a military charge.1 In these cases therefore an allegation in the specification of receipt of pay or allowances is essential to properly describe the military offence of fraudulent enlistment defined and prohibited by the statute. Cards 7275, February, 1899; 7668, February, 1900.

1419. Where & soldier fraudulently enlists without a discharge from a prior enlistment, he may be brought to trial for desertion and fraudulent enlistment, or he may be restored to duty without trial and held to serve either the fraudulent enlistment or the one from which he deserted, or both, at the option of the Government. In practice, if he is held to serve only one, he is discharged without honor from the other. 49, 442, October, 1891; Cards 359, September, 1894; 2115, March, 1896; 4711, August, 1898; 5592, January, 1899.

1 In a recent case (In re Carver, 103 Federal Reporter, 624) the court said: "It may well be doubted whether under the Constitution fraudulent enlistments can be made offences punishable by courts martial; but there can be no question that the receipt of pay or allowance after fraudulent enlistment may be made so punishable."

1420. Where a man, not a deserter from a prior enlistment, fraudulently enlists he may be allowed to serve out such enlistment or he may be discharged therefrom without honor, or brought to trial for the offence of fraudulent enlistment at the option of the Government. Cards 4797, August, 1898; 5481, December, 1898.

1421. Disqualifications for enlistment may be statutory and not statutory. Congress has said (act of August 1, 1894) that a man whose service during his last preceding term of enlistment has not been honest and faithful is disqualified for enlistment, and this governs all recruiting officers. But where such service has been honest and faithful, there may be disqualifications which would justify the rejection of the applicant; in short, the fact of such honest and faithful service takes him out of the class whose enlistment is prohibited by the act of August 1, 1894, but does not prevent his enlistment being fraudulent if he concealed facts in regard to other previous service, which if known would have caused his rejection. Card 7542, January and February, 1900.

1422. A deserter from the Navy of the United States who enlists in the Army by concealing the fact of such desertion, commits the offence of fraudulent enlistment and may be brought to trial therefor. 59, 91, April, 1893.

1423. The dishonorable discharge by sentence of court-martial of a soldier for fraudulent enlistment is not intended as a rescission of the contract but as a punishment for the military offence. Being discharged by way of punishment for an offence (Sec. 1290, Rev. Sts.), he is not entitled to travel allowances; but if such sentence does not provide for forfeiture of pay and allowances, he is entitled to all current pay and allowances due him at date of the discharge. Paragraph 1386, A. R. (1564 of 1901), which provides that enlisted men discharged for fraudulent enlistment shall not be entitled to pay and allowances, etc., applies only to summary discharges for fraudulent enlistment and not to discharges by court martial for fraudulent enlistment.1 Card 3608, November, 1897.

FUNDS FROM SAVINGS.

1424. The company, hospital, and similar funds, not being public money, it was formerly held that stoppages of pay of officers and soldiers could not be made to reimburse these funds (XLVII, 151, June, 1883; 35, 189, September, 1889); but as the post exchange fund has been recognized as an agency or instrumentality of the Government,2

'The Comptroller of the Treasury held contra as to this regulation, in opinion dated January 28, 1898 (not published), and cited in support the case of Fernandes, decided Aug. 12, 1897 (4 Comp. Dec., 54).

See extract from decision of Court of Claims, in Dugan v. United States, in note to § 2014, post.

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