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 a 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.

2

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.

and in view of the reasons upon which such conclusion rests, held that stoppages may legally be made to reimburse post exchange, company, bakery, hospital, and regimental funds. Cards 3171, June, 1897; 7186, October, 1899.

1425. Where a retired enlisted man embezzled $240, post exchange funds, held, in view of the fact that such funds are recognized as an instrumentality of the Government, that his pay could legally be stopped to reimburse those funds. Card 3171, June, 1897.

1426. Where certain officers had misappropriated and applied to their own use $589.08, company funds, recommended, that that amount be stopped against their pay. Card 7186, October, 1899.

1427. An officer at the time of his death was accountable for $360 company fund. A board of survey reported that he had left in lieu of the money an unindorsed government check for that amount, payable to his order and purporting to be for pay due him. It thus appeared that the officer owed the company fund $360, and that the Government owed him the same amount for salary, the check not having been presented and paid. Advised, therefore, that as an officer's pay may legally be stopped to reimburse the company fund, $360 be stopped against the pay due the deceased officer, and that the check referred to be returned to the drawer to be cancelled. Card 7957, April, 1900.

FURLOUGH.

1428. Held that a department commander, in acceding to the application of an enlisted man for a month's furlough, would not be authorized to make the grant conditional on his giving up or waiving one month of the three months' furlough allowed at the end of the third year of enlistment by the act of June 16, 1890, c. 426, sec. 2. The provisions of this act are based upon public policy, being devised with a view to diminishing the great evil of desertion. In this view they entitle the soldier as a right to the furlough at the time specified and to the discharge at its expiration. The policy is extended to all soldiers, and the right made absolute. It is not even declared that the furlough or discharge shall be allowed under "regulations to be prescribed;" the grant is unqualified and unrestricted. Any condition imposed by a commander would thus be in contravention of the terms and policy of the law. The furlough given a soldier, pending the term of enlistment, under par. 109 or 110, A. R. (1889), is an altogether different matter and should be considered as quite independent of the furlough provided by the act of 1890. The former furlough is in the commander's discretion under the regulations, and should be granted

on the merits of each case as a separate and distinct act and order quite irrespective of the statutory furlough that may be earned by faithful service at the end of the three years. 64, 220, March, 1894.

1429. Under the provisions of sec. 2 of the act of June 16, 1890, granting a three months' furlough to soldiers after three years of "faithful" service, held that it would not be expedient to adopt an inflexible rule that a soldier who at any prior period of his enlistment had been convicted of a military offence should be deemed ineligible to such furlough. As regards offences other than desertion, each case should properly be left to be decided upon its own merits at the discretion of the Secretary of War. 48, 20, June, 1891.

G.

GAMBLING.

1430. Gambling, per se, does not constitute a military offence. If indulged in, however, to such an extent or in such a manner as to give it the character of a disorder "to the prejudice of good order and military discipline" in the sense of Art. 62, or under circumstances so personally discreditable as to bring it within the description of "conduct unbecoming an officer and a gentleman," it may of course be taken cognizance of by a court martial. The Army Regulations recognize it as peculiarly objectionable when practised by a disbursing officer. XVI, 381, July, 1865; XL, 32, October, 1877.

GARNISHMENT.

1431. It is well settled, upon considerations of public policy, that funds in the possession of a paymaster of the army or other disbursing agent of the United States, due as pay, salary, or wages, to an officer or soldier of the army, or other government employee, cannot be attached in a suit instituted against such officer, &c., by a private creditor. VIII, 493, May, 1864; XX, 413, February, 1866; XXVI,

1See, in G. C. M. O. 18, War Dept., 1871, a case of a disbursing officer convicted of gambling, as an offence under Art. 62; and note the remarks of the reviewing authority upon an instance of this class in G. O. 2, Dept. of Arizona, 1878. In an early case-in G. O. 104, Hdqrs. of Army, 1833-it was held that a claim by a disbursing officer that he had played for too small stakes to endanger the safety of the public funds entrusted to his charge, was not a sufficient excuse for his gambling, in view of the regulation. See par. 590, A. R. of 1895 (672 of 1901).

'Buchanan ". Alexander, 4 Howard, 20; Averill v. Tucker, 2 Cranch, C. C. 544; Derr r. Lubey, 1 McArthur, 187; 13 Opins. At. Gen. 566. And the same principle is applied to moneys due from municipal corporations. Hawthorn v. St. Louis, 11 Mo. 59; Burnham‍r. Fond du Lac, 15 Wisc. 211; Wilson 7. Bk. of La. 55 Ga. 98; Pruitte. Armstrong, 56 Ala. 306; Boone Cɔ. v. Keck, 31 Ark. 387.

466, February, 1868; XXVIII, 47, August, 1868; XXXIII, 8, March, 1872; XXXIV, 26, November, 1872; Cards 1901, December, 1895; 2767, December, 1896; 4887, September, 1898; 6103, March, 1899. Where indeed the pay due has been paid over to a third person as the authorized agent or attorney of the party entitled to receive it, it may be attached by the garnishee process in the hands of such person. Card 4887, supra.

1432. The principle is well established that money in the hands of a disbursing agent of the United States is not subject to attachment in a suit by a creditor of a party to whom such money is due and payable. A military disbursing officer is therefore not empowered to pay moneys in his hands, due a government contractor, to any creditor of such contractor, or to any person other than the contractor himself, or his agent or attorney or personal representative; nor can he be made liable to pay over any part of such moneys as garnishee in a suit brought against such contractor. LIV, 514, January, 1888.

1433. A general service clerk received from a paymaster of the army, in payment of his monthly pay, a check upon a national bank, which was a U. S. depositary. On presentation the bank retained the check and refused payment on the ground that the county sheriff had levied an attachment on all the property of the payee in the bank. Held that such refusal was legally unauthorized. The pay due was public money in the hands of the depositary, and could be paid only to the payee of the check or his order. 54, 361, July, 1892.

1434. A creditor of a government contractor, to whom the Government owes a balance, cannot attain the object of a foreign attachment by bringing suit against the contractor, and joining with him, as defendants, the United States, as also the officer of the army who executed the contract, and praying judgment against the United States, or for an order of court upon the officer to pay over the amount claimed. An individual cannot be allowed so to control the operations of the Government.' 40, 251, April, 1890.

GENERAL STAFF.

1435. The General Staff of the army, consisting of the chiefs of the staff corps and inferior officers of the same, constitute the Staff of

'Moreover, when suit is initiated against the United States, the plaintiff is required to proceed according to the provisions of secs. 4, 5 and 6 of the act of March 3, 1887, c. 359, and must duly serve a copy of the petition upon the proper U. S. district attorney, as notice to appear and defend the interests of the United States, and mail a copy to the Attorney General, &c.—a procedure which had not been followed in this case.