But the existing law, in entitling him to be retired if he complies with its conditions, evidently contemplates that he shall remain a pensioner on the bounty of the Government during the remainder of his life, if not forfeiting his claim by serious misconduct. So, held that retired enlisted men could not legally be discharged by executive order under the 4th Article of War, which contemplates soldiers on the active list. only. LV, 305, January, 1888.

2219. Held, in the absence of any legislation to the contrary, that retired enlisted men, like retired officers,' might legally be employed, in any department of the Government, as clerks, messengers, watchmen, &c., and receive pay for such employment, while at the same time retaining their positions on the retired list and receiving retired pay. LVI, 144, 493, May and September, 1888.

2220. There is no statute of the United States or regulation of the War Department which prevents a retired enlisted man of the army from accepting an office or employment under either the United States or a State. Held, therefore, that there was no law or regulation of the United States which would prevent a retired enlisted man from organizing and drilling a militia company. Card 3638, November, 1897. 2221. An enlistment contrary to the 50th Article of War, or otherwise fraudulent, is not void but voidable only at the option of the United States. Until thus avoided it is valid and binding on both parties and service under it is valid service. Ild, therefore, that time actually served under such enlistment should be counted in computing the thirty years necessary to entitle the soldier to retirement under the provisions of the act of Sept. 30, 1890 (26 Stats. 504). Cards 355, September, 1894; 2022, January, 1896; 7108, October, 1899. 2222. A marine, after serving nine years and six months in the marine corps, deserted therefrom in 1866, and subsequently while thus in desertion served about sixteen years in the army. Held, that if his service in the marine corps during the civil war was "active service" within the meaning of the act of February 14, 1885 (23 Stats., 305), as amended by the act of September 30, 1890 (26 Stats., 504), he would be eligible under said acts for retirement. Card 6693, July, 1899.

2223. The act of May 26, 1900, provides that hereafter, in computing length of service for retirement, credit shall be given the soldier for double the time of his actual service in Porto Rico, Cuba, or in the Phillipine Islands." Held, that a soldier absent in the United States on sick or ordinary furlough while his company is stationed in Porto Rico, Cuba, or the Phillipine Islands cannot be considered as in “actual service” within the meaning of this statute, in the place where 115 Opins. At. Gen., 306.

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his company is stationed, and he is not therefore, entitled to credit for double time during the period of such absence.' Card 8529, June, 1900.

2224. There is no legal objection to granting an enlisted man of the regular army an indefinite furlough to allow him to accept an appointment as an officer in the volunteer army, and having accepted such furlough and appointment, the period of their continuance may legally be counted as part of the thirty years service as an enlisted man, which would entitle him to retirement. Card 8696, August, 1900.

2225. Pay for certificate of merit (two dollars per month), like continuous service pay, has always been held to be a part of the soldier's pay. Being thus a part of the pay of the rank upon which the soldier receiving it may be retired, he is entitled to receive as a retired soldier seventy-five per centum thereof with his current pay. Card 1308, April, 1895.

2226. Held that a retired soldier may be furnished subsistence in kind instead of the commutation allowances during the time he may be in confinement at a military post under military charges, and either subsistence in kind or full commutation while en route under guard to or from the post. Card 3234, June, 1897.

REVIEWING AUTHORITY.

2

2227. This term is employed in military parlance to designate the officer whose province and duty it is to take action upon the proceedings of a court martial after the same are terminated, and, when the record is transmitted to him for such action, to approve or disapprove, &c., the sentence. This officer is ordinarily the commander who has convened the court. In his absence, however, or where the command has been otherwise changed, his successor in command, or, in the language of Arts. 104 and 109, "the officer commanding for the time being,” is invested (by those articles) with the same authority to pass upon the proceedings and order the execution of the sentence in a case of conviction. XIII, 468, March, 1865.

In cases, however, of sentences of dismissal and of death, imposed in time of peace, and of some death sentences adjudged in time of war, as also of all sentences "respecting general officers,"-while the convening officer (or his successor) is the original reviewing authority, with the same power to approve or disapprove as in other cases, yet, inasmuch as it is prescribed by Arts. 105, 106, 108 and 109 that the sentence shall not be executed without the confirmation of the President, the latter becomes in these cases the final reviewing officer, when-the

sentence having been approved by the commander (for, if disapproved by him, there is nothing left to be acted upon by the superior)-the record is transmitted to him for his action. A similar division of the reviewing function exists in cases in which sentences are approved, but the execution of the same is suspended, and the question of their execution referred to the President, under Art. 111. The same function is also shared between inferior and superior commanders, under Art. 107, in cases in which sentences are imposed by division or separatebrigade courts.

Where a general court martial is convened directly by the President as Commander-in-chief, he is of course both the original and final reviewing authority.

2228. It is no longer necessary that the findings of a court martial should be expressly approved. Formerly the 104th Article of War prescribed that no sentence of a court martial should be carried into execution until the whole proceedings were approved by the reviewing authority, but now as amended by act of July 27, 1892, it simply requires that the sentence shall be approved by such officer, and this applies as well in cases requiring confirmation of the President as in those that do not. Card 2844, January, 1897.

2229. While approval gives life and operation to the sentence, disapproval, on the other hand, quite nullifies the same. A disapproval of the sentence of a court martial by the legal reviewing authority is not a mere expression of disapprobation, but a final determinate act, putting an end to the proceedings in the particular case and rendering them entirely nugatory and inoperative; and the legal effect of a disapproval is the same whether or not the officer disapproving is authorized finally to confirm the sentence. But to be thus operative, a disapproval should be express. As frequently remarked in the opinions of the Judge-Advocate General, the mere absence of an approval is not a disapproval, nor can a mere reference of the proceedings to a superior without words of approval operate as a disapproval of the sentence.1 The effect of the disapproval, wholly, of a sentence is not merely to annul the same as such but also to prevent the accruing of any disability, forfeiture, &c., which would have been incidental upon an approval. XXVI, 568, June, 1868; XXX, 497, July, 1870; XXXII, 1, December, 1870; L, 121, March, 1886; 60, 36, June, 1893; Card 2195, April, 1896.

See 16 Opins. At. Gen. 312, where it is remarked that it is not a legal disapproval of a conviction or sentence for the original reviewing officer, in forwarding the proceedings for the action of superior authority, to endorse upon the same an opinion to the effect that the finding is not sustained by the evidence.

A disapproval of a sentence by the proper reviewing authority is "tantamount to an acquittal by the court." 13 Opins. At. Gen. 460.

Where the original reviewing officer disapproves a sentence, to the execution of which the confirmation of superior authority is made requisite by the code-as where (in time of peace) the department commander, who has convened the court in the case of an officer, disapproves a sentence of dismissal adjudged thereby the sentence being nullified in law, there remains nothing for the superior authority to act upon and to transmit the proceedings to him for action will be improper and unauthorized. III, 537, August, 1863; VII, 479, April, 1864; XXX, 497, July, 1870; XXXII, 630, May, 1872.

A reviewing officer cannot disapprove a sentence and then proceed to mitigate or commute the punishment, since, upon the disapproval, there is nothing left in the case upon which any such action can be based. XXII, 456, October, 1866.

It is quite immaterial to the legal effect of a disapproval whether any reasons are given therefor, or whether the reasons given are wellfounded in fact or sufficient in law. XXVIII, 198, October, 1868.

2230. A reviewing officer cannot himself correct the record of a court martial by striking out any part of the finding or sentence, or otherwise (see § 2256, post); nor can he in general change the order in which different penalties are adjudged by the court to be suffered (see § 1146, ante); nor can he add to the punishment imposed by the court though deemed by him quite inadequate to the offence. (See § 2320, post.) He may, however, in general, specify the reasons for the action taken by him, without transcending his authority. Thus, where a department commander disapproved a sentence as inadequate, and, in stating his grounds for so doing, commented unfavorably upon the conduct of the accused as indicated by the evidence, held that such comments were a legitimate explanation of the action taken and did not constitute an adding to the punishment.' XIX, 676, August, 1866.

2231. Where the reviewing officer deems that the proceedings of the court are in any material particular erroneous or ill advised, his proper course in general will be to reconvene the court for the purpose of having the defect corrected, at the same time furnishing it with the grounds of his opinion. Thus if he regards the sentence inadequate, he should, in reassembling the court for a revision of the same, state why he so considers it. XI, 490, February, 1865. While he cannot compel the court to adopt his views in regard to the supposed defect, he may, in a proper case, express his formal disapprobation of their neglect to do so. Thus where a court martial, on being reconvened with a view of giving it an opportunity to modify a sentence manifestly too lenient for the offence found, decided to adhere

See as a marked instance of such comments, G. C. M. O. 104, Navy Dept., Sept. 13, 1897.

to the sentence as adjudged, and, on being again reassembled to consider further grounds presented by the reviewing commander for the infliction of a severer penalty, again declined to increase the punishment,-held that it was within the authority of the reviewing officer, and would be no more than proper and dignified for him, in taking final action upon the case, to reflect upon the refusal of the court as illjudged, and as having the effect to impair the discipline and prejudice the interests of the military service.' IV, 579, January, 1864; XII, 546, August, 1865.

2232. In passing upon the findings and sentence of a court martial, the reviewing officer will properly attach special weight to its conclusions where the testimony has been of a conflicting character. This for the reason that, having the witnesses before it in person, the court was qualified to judge, from their manner in connection with their statements, as to the proper measure of credibility to be attached to them individually. XXX, 383, 447, May and June, 1870; XXXV, 542, August, 1874; XXXVIII, 272, 325, August and September, 1876. 2233. The reviewing authority should properly authenticate the action taken by him in any case by subscribing in his own hand (adding his rank and command, as indicating his legal authority to act) the official statement of the same as written in or upon the record. (See § 2136, k, ante.) Impressing the signature by means of a stamp is not favored. IV, 567, January, 1864; XXII, 513, December, 1866; 568, January, 1867.

2234. A military commander cannot of course delegate to an inferior or other officer his function as reviewing authority of proceedings or sentence of a court martial, as conferred by the 104th or 109th Article of War or other statute. Nor can he, regularly, authorize a staff or other officer to subscribe for him the action, by way of approval, disapproval, &c., which he has decided to take upon such proceedings. An approval purporting to be subscribed by the commander, "by" his staff judge-advocate or other staff officer, would be open to question and quite irregular; as would also be any action subscribed by such an officer, purporting to be taken "in the absence and by the direction of" the commander. IV, 567, January, 1864; VII, 19, and VIII, 639, July, 1864; IX, 27, May, 1864; XV, 548, July, 1865; XVII, 191, August, 1865; XXVII, 297, October, 1868.

2235. Action taken by a reviewing officer upon the proceedings and sentence of a court martial may be recalled and modified before it is

1See G. C. M. O. 88, A. G. O., 1864.

See the early case of Capt. Weisner, Am. Archiv., 5th Series, vol. II. p. 895. So, civil courts will rarely interfere, except in cases of clear injustice, with verdicts of juries which have turned upon the credibility of witnesses. Wright v. State, 34 Ga. 110; Whitten v. State, 47 id 297.