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, ¿. 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.

2

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.

1135. A volunteer officer was summarily dismissed on account of unfitness caused by his own fault. Held, that his discharge was without honor. 52, 403, March, 1892. Similarly held where the officer was summarily "dropped" for absence without leave. 46, 389, April,

1891.

1136. But where an officer of volunteers was examined as to his qualifications by a board of officers under "an act to provide for the examination of certain officers of the army," approved June 25, 1864, and was reported mentally disqualified for the duties of his office and was thereupon dismissed by executive order in accordance with the provisions of the act, held that the dismissal was in effect an honorable discharge from the service.1 46, 333, April, 1891; 65, 31, May, 1894.

1137. A soldier was tried by court martial for offences which, upon conviction, would have justified his discharge, but having been acquitted by the court, held, that his discharge without honor, primarily on account of said alleged offences would not be proper. Card 1058, February, 1895.

1138. The statement of character being no part of the discharge, held, that the discharge "without character" given when a soldier's character has not been sufficiently good to allow of his re-enlistment (par. 148, Army Regulations, 1895) is in legal effect an honorable discharge. 30, 169, February, 1889; Cards 352, September, 1894; 604, November, 1894.

1139. Where a soldier's service has been honest and faithful, held, that discharge without character was improper. Card 2230, April,

1896.

1140. An executed honorable discharge cannot be revoked unless obtained by fraud on the part of the soldier. Mere mistake on the part of the officers executing it will not justify revocation. Card 2700, October, 1896. The same is equally true of a discharge without honor when once duly executed. Cards 2099, March, 1896; 2423, July, 1896; 9028, September, 1900. An order directing a discharge may of course be revoked or suspended at any time before the discharge ordered has actually taken effect. XXIX, 508, January, 1870. An order purporting to revoke an executed honorable discharge, not obtained by fraud, and substituting therefor a dishonorable one, held, wholly unauthorized and illegal. VI, 478, November, 1864; XI, 197, December, 1864; XX, 584, April, 1866; XXV, 541, May, 1868; Cards 2700, supra; 1200, 1399, April and May, 1895; 2543, August, 1896. Similarly held, respecting the substitution of an honorable discharge for an executed legal discharge without honor, or for an exe

1 See Circ. 4, A. G. O., 1891.

cuted legal dishonorable discharge. Cards 605, November, 1894; 1382, May, 1895; 2099, March, 1896; 2174, April, 1896; 6378, July, 1899. 1141. A soldier was duly discharged pursuant to an order from the War Department. The order was issued under a misapprehension in regard to his actual status at the time-a mistake of fact-which if discovered would have deferred or prevented the issuing of the order. Held, that the mistake of fact did not invalidate the discharge; that having been duly executed, it could not be revoked. 61, 421, Septemher, 1893. Cards 1876, November, 1895; 1791, January, 1896.

1142. Where a soldier, by making an alteration in his "descriptive list" so as to cause it to appear that his term of enlistment, which was in fact five years, was three years only, induced the regimental commander to give him an honorable discharge at the end of three years' service; held, upon the fraud being presently discovered, that the discharge might legally be revoked and the soldier be brought to trial by court martial under the 99th (now 62d) Article of War. XXI, 390, May, 1866. But where by competent authority an honorable discharge was given to a soldier who was at the time in arrest under charges, held that such discharge-no fraud being imputable to the soldier-could not legally be revoked. XXIII, 483, May, 1867.

1143. Where a soldier, before the expiration of his term, received under the 4th Article of War a discharge in due form, though charges were then pending against him, the authority ordering the discharge not having been made aware of such charges, held that the discharge was executed and could not be revoked with a view to bringing the soldier to trial; that he had, by the discharge, duly become a civilian and was no more than any other civilian under the control of the military 50, 295, November, 1891; Card 1791, January, 1896. 1144. The fact that a soldier has been a deserter does not preclude his receiving an honorable discharge, if either he be restored to duty without trial, or having been tried and sentenced, he yet, by reason of his imprisonment being fully executed or being remitted before the end of his term, is returned to duty and is in the performance of faithful service when his term is completed. An honorable discharge then given to him is an authoritative declaration by the Government that he leaves the military service in a status of honor. Thus honorably discharged he cannot, by reason of his having formerly deserted, be deprived of any rights to pay, allowances or bounty usually incident upon honorable discharge.1 XXVI, 484, March, 1868.

1145. A soldier while a deserter again enlisted, was allowed to serve such second enlistment, and did so honestly and faithfully; held that

This opinion is quoted and adopted by the U. S. Supreme Court in United States r. Kelly, 15 Wallace, 34, 36.

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he was entitled at the end of the term, being in respect to this term in a status of honor, to an honorable discharge from it. But this did not affect his other enlistment; as, to that he should be treated as a deserter. 43, 48, September, 1890; Card 902, February, 1895.

1146. Where a court martial, in imposing dishonorable discharge in connection with confinement, directs that the discharge be first executed; or where it is reasonably to be inferred from the terms of the sentence that it was the intention of the court that the punishments should be executed in this order; the reviewing officer, in approving the sentence, is not empowered to command that the execution of the discharge be postponed to the end of the term of confinement.' XXXII, 390, March, 1872; 529, April, 1872; XXXIV, 32, November, 1872; 580, November, 1873; XXXVII, 22, June, 1875. On the other hand, if the sentence clearly imposes the dishonorable discharge of the soldier at the end of the term of confinement, the reviewing officer is not authorized to direct that he be discharged forthwith. XXXVII, 456, January, 1869. A dishonorable discharge given in the latter case at the beginning instead of at the end of the term, would not be given pursuant to the sentence and should therefore be set aside as void and inoperative, the man taken up again as a soldier and the discharge given at the end of the confinement as directed by the sentence. Card 5968, March, 1899.

1147. Where a court martial sentenced a soldier, in connection wit confinement, to be dishonorably discharged at such date as might be fixed by the reviewing officer, advised that such a sentence was illegal as devolving upon the reviewing officer a duty pertaining to the court.2 XXXIII, 401, October, 1872.

1148. Ield, that a soldier may be summarily discharged while in confinement under sentence, but a summary discharge under such circumstances would not only discharge him from the service but would effect a remission of so much of the sentence as remained unexecuted on the date of the discharge. 53, 409, May, 1892; Cards 1906, 1907, and 1912, December, 1895.

1149. A sentence of dishonorable discharge (even when ignominious, as when accompanied by drumming out) entails per se no disqualification for civil employment under the United States. VIII, 91, March,

See an opinion of the Judge-Advocate General on this subject, published and approved by the Secretary of War in G. O. 71, War Dept., 1875.

See an opinion to this effect published, as approved by the Secretary of War, in G. O., 90, War Dept., 1872.

That a discharge by reason of expiration of term of service given pending the exe-, cution of a period of confinement, which extends beyond the term of enlistment, does not have such effect, see G. O., 138, A. G. O., 1899.

Sec. 2 of the act of August 1, 1894 (28 Stats., 216), provides that “no soldier shall be again enlisted in the Army whose service during his last preceding term of enlistment has not been honest and faithful."