morally wrong and of such a nature that, while dishonoring or disgracing him as a gentleman, it compromises his character and position as an officer of the army. V, 148, October, 1863; XXIV, 555, May, 1867; XXVIII, 649, June, 1869. 133. Thus, though a mere neglect on the part of an officer to satisfy his private pecuniary obligations will not ordinarily furnish sufficient ground for charges against him (XXVI, 551, May, 1868), yet where the debt has been dishonorably incurred, as where money has been borrowed under false promises or representations as to payment or security, or where the non-payment has been accompanied by such circumstances of fraud, deceit, evasion, denial of indebtedness, &c., as to amount to dishonorable conduct, the continued non-payment, in connection with the facts or circumstances rendering it dishonorable, may properly be deemed to constitute an offence chargeable under this Article. XIII, 425, February, 1865; XXIII, 564, July, 1867; XXVII, 430, December, 1868; XXVIII, 328, January, 1869; XXIX, 208, August, 1869; XXXIV, 307, June, 1873. 1 134. Where an officer, in payment of a debt, gave his check upon a bank, representing at the same time that he had funds there, when in fact, as he was well aware, he had none; held that he was amenable to a charge under this Article. XIII, 207, January, 1865. 135. Neglect or refusal to pay honest debts may constitute an offence under this Article, where so repeated or persistent as to furnish reasonable ground for inferring that the officer designs or desires to avoid, or indefinitely defer, a settlement. This, especially, where the debts are due to soldiers for money borrowed from, or held in trust for, them. XXI, 635, September, 1866; XLII, 54, November, 1873. 136. An indifference on the part of an officer to his pecuniary obligations, of so marked and inexcusable a character as to induce repeated just complaints to his military commander or the Secretary of War by his creditors, and to bring discredit and scandal upon the military service, held to constitute an offence within the purview of this Article. XXIII, 566, July, 1867. 137. Where certain officers of a colored regiment made a practice of 1Cases of officers made amenable to trial by court-martial, under this Article, for the non-fulfilment of pecuniary obligations to other officers, enlisted men, post traders and civilians, are found in the following General Orders of the War Dept., and Hdqrs. of Army:-No. 87, of 1866; do. 3, 55, 64, of 1869; do. 15, of 1870; do. 17, of 1871; do. 22, 46, of 1872; do. 10, of 1873; do. 25, 50, 68, 82, of 1874; do. 25, of 1875; do. 100, of 1876; do. 46, of 1877; do. 39, 124, of 1885; do. 31, of 1887; do. 54, of 1888; do. 20, of 1890; do. 3, 85, of 1891; do. 45, 65, 106, of 1893; do. 53, of 1894; do. 20, of 1895; do. 38, of 1896, and do. 5, of 1897. For English precedents see James Courts Martial (Collection, Charges, &c.), pp. 303, 395, 510, 618, 622, 696, 797, 802. See, on the subject of these complaints, the Circular, issued originally from the War Department (A. G. O.), on Feb. 8, 1872, in which the Secretary of War "declares his intention to bring to trial by court-martial," under the 61st Article of War, "any officer who, after due notice, shall fail to quiet such claims against him." loaning to men of the regiment small amounts of money, for which they charged and received in payment at the rate of two dollars for one at the next pay day; held that they were properly convicted of a violation of this Article. XXIII, 260, October, 1866; XXIV, 72, December, 1866. 138. Held that a continued neglect, without adequate excuse, to satisfy a pecuniary obligation long overdue, after specific assurances given of speedy payment, was a dishonorable act constituting an offence under this Article. 59, 261, May, 1893. 139. Where an officer stationed in Utah was married there by a Mormon official to a female with whom he lived as his wife, although having at the same time a legal wife residing in the States; held that he might properly be brought to trial by general court martial for a violation of this article. XXIII, 164, August, 1866. So held of an officer who committed bigamy by publicly contracting marriage in the United States, while having a legal wife living in Scotland whom he had abandoned. XLII, 98, January, 1879. 140. Abusing, assaulting, and beating his wife by an officer held chargeable as an offence under this Article. XXXI, 400, May, 1871. 141. The institution by an officer of fraudulent proceedings against his wife for divorce, and the manufacture of false testimony to be used against her in the suit, in connection with an abandonment of her and neglect to provide for her support, held to constitute "conduct unbecoming an officer and a gentleman" in the sense of this Article. XLIII, 21, October, 1879; L, 392, 431, June, 1886. Similarly held with respect to failure on the part of an officer to support his wife and children without adequate excuse therefor. 59, 348, May, 1893. 142. According to the accepted principle of interpretation, by which Articles of War enjoining a specific punishment or punishments, are held to be in this particular both mandatory and exclusive, no sentence other than one of simple dismissal can legally be adjudged upon a conviction under this Article. A sentence which adds to dismissal any other penalty or penalties-as disqualification for office, forfeiture of pay, imprisonment, &c., is valid and operative only as to the dismissal, and as to the rest, should be formally disapproved as being unauthorized and of no effect. IV, 283, October, 1863; IX, 672, October, 1864; XIV, 330, March, 1865. 143. The use of abusive language toward a commanding officer may constitute an offence under this Article. But, both as a matter of correct pleading, and because the 20th Article authorizes a punishment 1See the recent ruling to a similar effect by the Supreme Court in Fletcher v. U. S., 148 U. S., 84, 91-92; also the same case in 26 Ct. Cls., 541. less than dismissal, the language should be so particularized as to show that it constituted an offence more grave than the mere disrespect which is the subject of the latter Article. A specification not thus setting forth and characterizing the epithets or words employed will be subject to a motion to make definite or strike out. LVI, 562, September, 1888. 144. The mere acceptance by an officer of compensation from private parties (civilians) whom, by permission of his superior, he assists in a private undertaking, though it may be an indelicate act, is not an offence under this Article. Of the propriety of such conduct an officer must judge for himself. 52, 322, March, 1892; 53, 25, March, 1892. 145. The duplication of a "pay account," or claim for monthly pay, is always an offence under this Article. It is no defence that the transfer was made before the pay was actually due and payable, i. e. before the end of the month. While such a transfer may be inoperative in view of par. 1440, A. R. (1300 of 1895),' in so far as that the Government may refuse to recognize it, it is valid as between the officer and the party, and to allow the former to shelter himself behind the regulation would be to permit him to take advantage of his own wrongful and fraudulent act. 51, 370, January, 1892; 50, 45, October, 1891. 146. The regulation-par. 1440, A. R. (1300 of 1895)1-does not assume to invalidate, as between the parties, a transfer made or dated before the last day of the month, nor could it do so. Nor, though the money may not be payable thereon by the paymaster, is the offence of the officer, under this or the 60th Article, any the less. An officer has no right to present for payment and procure to be paid to himself a pay account of which a duplicate remains outstanding in the hands of a bona fide transferee. The latter has an equitable, if not a legal, claim to the pay, and this claim can not be ignored by the officer without dishonor. Moreover an officer of the Army has no right to place the military authorities in the position of thus refusing to pay a bona fide holder of a draft upon the Treasury. Such an act compromises and discredits the United States and the Government, and is especially an offence in a public officer. 50, 219, November, 1891. 147. It is no defence whatever to a charge under this Article that between the date of the refusal by the United States to pay the assignee of a duplicated voucher and the date of the arraignment of the officer or of the service of the charges, the money due has been paid, or somehow secured or made good to the assignee, or that he has been induced to withdraw or suspend his claim against the officer." 50, 45, October, 1891. 'A. R. 1447 of 1901. *See the remarks of the reviewing authority in the cases published in G. C. M. O. 88 of 1886 and 56 of 1893. SIXTY-SECOND ARTICLE. All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general or a regimental, garrison, or field-officers' court-martial, according to the nature and degree of the offence, and punished at the discretion of such court. 66 148. The word "crimes" in this Article, distinguished as it is from neglects" and "disorders," means military offences of a more serious character than these, including such as are also civil crimes-as homicide, robbery, arson, larceny, &c. "Capital" crimes (i. e. crimes capitally punishable), including murder, or any grade of murder made capital by statute, can not be taken cognizance of by courts martial under this Article. I, 473, December, 1862; VII, 429, 465, March and April, 1864; XI, 176, November, 1864; XXIX, 257, September, 1869; XXXII, 478, 522, April, 1872; XXXIV, 350, 447, July and September, 1873; XXXV, 385, September, 1874; XXXVI, 364, April, 1875; XLI, 50, November, 1877. A crime which is in fact murder, and capital by statute of the United States or of the State in which committed, cannot be brought within the jurisdiction of a courtmartial under this Article, by charging it as "manslaughter, to the prejudice," &c., or simply as "conduct to the prejudice," &c.1 If the specification, or the proof, shows that the crime was murder and a capital offence, the court should refuse to take jurisdiction, or to find or sentence. If it assume to do so, the proceedings should be disapproved as unauthorized and void. XXXIII, 155, July, 1872; XXXIV, 250, May, 1873; XLII, 451, December, 1879. 149. The term "to the prejudice of good order and military discipline," qualifies, according to the accepted interpretation, the word "crimes" as well as the words "disorders and neglects." Thus, the crime of larceny (sometimes charged as "theft" or "stealing") is held chargeable under this Article, when it clearly affects the order and discipline of the military service. Stealing, for example, from a fellow soldier or from an officer (or stealing of public money or other public property, where the offence is not more properly a violation of Art. 60) is generally so chargeable. XXIV, 441, April, 1867; XXVI, 23, 439, 487, September, 1867, to March, 1868; XXXVI, 214, January, 1875; XXXIX, 47, December, 1876. And so of any other crime (not capital), the commission of which has prejudiced military discipline. As for example, manslaughter (or homicide not amounting to murder 1 See this opinion, as given in an important case, adopted by the Secretary of War in his action on the same published in G. C. M. O. 3, War Dept., 1871; also the similar rulings in G. C. M. O. 28, Dept. of Texas, 1875; G. O. 14, Dept. of Dakota, 1868; do. 104, Army of the Potomac, 1862. As to the jurisdiction of courts martial in cases of murder, &c., in time of war, see FIFTY-EIGHTH ARTICLE. see $ 148, ante) of a soldier (XXV, 592, June, 1868; XXXI, 87, December, 1870; 278, April, 1871; XXXIII, 155, July, 1872; XXXVI, 667, September, 1875; XXXVII, 380, March, 1876; XLI, 188, April, 1878); assault with intent to kill a fellow soldier (XXVII, 587, 654, March and May, 1869); forgery of the name of a disbursing or other military officer to a government check or draft (XXIX, 369, October, 186); or forgery of an officer's name to a check on a bank (XXXII, 623, May, 1872) whether or not anything was in fact lost by the Government or the bank or officer: forgery in signing the name of a fellow soldier to a certificate of indebtedness to a sutler (IX, 328, July, 1864); or to an order on a paymaster (XLII, 562, March, 1880); embezzlement or misappropriation of the property of an officer or soldier. XXXIX, 201, October, 1877. 150. Held that for an officer to print and publish to the army a critieism upon an official report, made by another officer in the course of his duty to a common superior, charging that such report was erroneous and made with an improper and interested motive, was gravely unmilitary conduct to the prejudice of good order and military discipline. An officer who deems himself wronged by an official act of another officer should prefer charges against the latter or appeal for redress to the proper superior authority. He is not permitted to resort to any form of publication of his strictures or grievances. XXXIX, 431, February, 1878. So hold that for an officer to publish or allow to be published in a newspaper of general circulation, charges and insinuations against a brother officer by which his character for courage and honesty is aspersed and he is held up to odium and ridicule before the army and the community-was a highly unmilitary proceeding and one calling for a serious punishment upon a conviction under this Article, and this whether or not the charges as published were true. XLII, 284, May, 1879. 151. A crime, disorder, or neglect, cognizable under this Article, may be charged either by its name simply, as larceny," "drunkenthe words. "to the prejudice of good order and military discipline;" ness," "neglect of duty." &c.: or by its name with the addition of or simply as conduct to the prejudice of good order and military discipline;" terial in which form the charge is expressed, provided the specification sets forth facts constituting an act prejudicial to good order and military discipline. VII, 485, March, 1864; IX, 328, March, 1864; XI, 228, December, 1864; XXVIII, 486, April, 1869. Whenever the charge and specification taken together make out a statement of an act clearly thus prejudicial, &c., the pleading will be regarded as substan Or as "violation of the 62d Article of War." It is imma 16906-01 4 |