incur the forfeit section. voluntarily relinquished and forfeited their rights of citizenship, as well as their right to become citizens; and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof. 3 March, 1865, s. 21, v. 13, p. 490. Certain soldiers SEC. 1997. No soldier or sailor, however, who faithfully served accordand sailors not to ing to his enlistment until the 19th day of April, 1865, and who, without ures of the last proper authority or leave first obtained, quit his command or refused to serve after that date, shall be held to be a deserter from the Army or Navy; but this section shall be construed solely as a removal of any disability such soldier or sailor may have incurred, under the preceding section, by the loss of citizenship and of the right to hold office, in consequence of his desertion. [See § 4749.] Avoiding the dratt. Title 57. Certain soldiers 19 July, 1867, v. 15, p. 14. SEC. 1998. Every person who hereafter deserts the military or naval service of the United States, or who, being duly enrolled, departs the jurisdiction of the district in which he is enrolled, or goes beyond the limits of the United States, with intent to avoid any draft into the military or naval service, lawfully ordered, shall be liable to all the penalties and forfeitures of section nineteen hundred and ninety-six. 3 March, 1865, s. 21, v. 13, p. 490. SEC. 4749. No soldier or sailor shall be taken or held to be a deserter from the Army or Navy who faithfully served according to his enlistand sailors not to ment until the nineteenth day of April, eighteen hundred and sixty-five, be deemed de- and who, without proper authority or leave first obtained, quit his comserters, &c. mand or refused to serve after that date; but nothing herein contained shall operate as a remission of any forfeiture incurred by any such soldier or sailor of his pension; but this section shall be construed solely as a removal of any disability such soldier or sailor may have incurred by the loss of his citizenship in consequence of his desertion. [See $2438, BOUNTY LAND, Part IV.] Title 70, Chap. 5. 19 July, 1867, v. 15, p. 14. SEC. 5455. Every person who entices or procures, or attempts or enEnticing deser. deavors to entice or procure, any soldier in the military service of the tions from the United States, or who has been recruited for such service, to desert theremilitary or naval from, or who aids any such soldier in deserting or attempting to desert service. from such service, or who harbors, conceals, protects, or assists any such soldier who may have deserted from such service, knowing him to have deserted therefrom, or who refuses to give up and deliver such soldier on the demand of any officer authorized to receive him, shall be punished by imprisonment not less than six months nor more than two years, and by a fine not exceeding five hundred dollars; and every person who entices or procures, or attempts or endeavors to entice or procure, any seaman or other person in the naval service of the United States, or who has been recruited for such service, to desert therefrom, or who aids any such seamen or other person in deserting or in attempting to desert from such service, or who harbors, conceals, protects, or assists any such seaman or other person who may have deserted from such service, knowing him to have deserted therefrom, or who refuses to give up and deliver such sailor or other person on the demand of any officer authorized to receive him, shall be punished by imprisonment not less than six months nor more than three years, and by a fine of not more than two thousand dollars, to be enforced in any court of the United States having jurisdiction. 3 March, 1863, s. 24, v. 12, p. 735. 1 July, 1864, v. 13, p. 343. 27 February, 1877, v. 19, p. 253. NOTES.-The President may grant conditional pardon for desertion; may remit a part of the penalty or punishment without remitting the whole; may reenfranchise without giving right to forfeited pay.-Op. XIV, 124. If pay forfeited or a fine has passed into the Treasury, by a covering warrant or otherwise, neither can be released without authority of Congress.-Op. VIII, 281; XIV, 599; and XVI, 1. Desertion is a continuing offense. Limitation to trial begins to run from commencement of the offense, except where, by reason of "manifest impediment,” the accused is not amenable to justice within two years from that time. In such a case it runs from the removal of the impediment. Continuing commission limited by the obligation to serve under engagement. When that ceases the commission terminates in cases not excepted." "Amenable" signifies within Sec. the reach and power of the military authorities to bring to trial.-Op. XV, p. 152, Taft, Sept. 1, 1876. Where forfeiture or loss of pay is made part of a sentence, in addition to confinement or suspension from duty, the former may be remitted by the proper authority, in whole or in part, without also remitting the latter.-Op. XV, p. 175, Taft, Nov. 9, 1876. Forfeiture by desertion does not include money of the deserter found in possession of or deposited with paymaster.-Op. XIII, p. 210, Hoar, Feb. 8, 1870. The honorable discharge of a soldier is a formal, final judgment passed by the Government on his entire military record, and an authoritative declaration that he left the service in a status of honor. As such it relieves him from a charge of desertion appearing on the rolls. Does not restore pay and allowances forfeited by sentence of a military court-martial for desertion.-Court of Claims, VIII, 110; IX, 190; Wallace, XV, 34. A seaman charged before a court-martial with desertion may be found guilty of attempting to desert. -Howard, 20, p. 65. In a trial for theft and desertion, sentence and conviction disapproved and prisoner restored to duty. Action of reviewing officer in effect an acquittal by the court. No authority to withhold pay on account of alleged desertion.-Op. XIII, p. 459, Bristow, June 21, 1871. DISMISSAL AND RESIGNATION OF OFFICERS. APPOINTMENTS, ETC. 1229. Dismissal in time of peace. 1441. Officers dismissed or resigning to escape dismissal. 1624. Dismissal of officers. Art. 36. SEC. 1229. No * Sec. 1624. Officers dismissed by President may demand trial. Art. 37. Act amending article 37. officer in the military, or naval Title 14, Chap. 1. service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof. 15 July, 1870, s. 17, v. 16, p. 319. 13 July, 1866, s. 5, v. 14, p. 92. [Section 1230 of the Revised Statutes is almost the same as art. 37, sec. 1624, except the words "since 3d March, 1865," are omitted.] SEC. 1441. No officer of the Navy who has been dismissed by the sen- Title 15, Chap. 2 ̧ tence of a court-martial, or suffered to resign in order to escape such dismissal, shall ever again become an officer of the Navy. 16 July, 1862, s. 11, v. 12, p. 585. NOTE. Congress did not intend by this clause to preclude the President from reappointing officers dismissed by sentence of court-martial to whom he has extended a pardon. Pardon purges the offense, but does not of itself restore lost position.-Up. XI, p. 19, March 12, 1864. Officers dismissed, or resigning to escape dismissal. of SEC. 1624, ART. 36. No officer shall be dismissed from the naval service Title 15,Chap.10. except by the order of the President or by sentence of a general court- Dismissal martial; and in time of peace no officer shall be dismissed except in officers. pursuance of the sentence of a general court-martial or in mitigation thereof. 13 July, 1866, s. 5, v. 14, p. 92. SEC. 1624, ART. 37. When any officer, dismissed by order of the Presi- Officer dismissed dent since 3d March, 1865, makes, in writing, an application for trial, by the President may demand setting forth, under oath that he has been wrongfully dismissed, the trial. President shall, as soon as the necessities of the service may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed. And if such court-martial shall not be convened within six months from the presentation of such application for trial, or if such court, being convened, shall not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. [See act of June 22, 1874, and notes infra.] 3 March, 1865, s. 12, v. 13, p. 489. June 22, 1874. Pay on restora That the accounting officers of the Treasury be, and are hereby, prohibited from making any allowance to any officer of the Navy who has been, or may hereafter be, dismissed from the service and restored to tion. the same under the provisions of the twelfth section of the act of March third, eighteen hundred and sixty-five, entitled, "An act to amend the several acts heretofore passed to provide for the enrolling and calling out the national forces, and for other purposes," [sec. 1624, R. S.] to exceed more than pay as on leave for six months from the date of dismissal, unless it shall appear that the officer demanded in Aug. 5, 1882. in examination. writing, addressed to the Secretary of the Navy, and continued to demand as often as once in six months, a trial as provided for in said act. 22 June, 1874, s. 2, v. 18, p. 191. NOTE.-An officer, between date of dismissal and restoration, not demanding, in writing, as often as six months, a trial, when restored is not entitled to more than pay as on leave for six months", from date of dismissal.-Op. XV, 569, Taft, July 21, 1876. Whenever on an inquiry had pursuant to law, concerning the fitness of an officer of the Navy for promotion, it shall appear that such officer Officers failing is unfit to perform at sea the duties of the place to which it is proposed to promote him, by reason of drunkenness, or from any cause arising from his own misconduct, and having been informed of and heard upon the charges against him, he shall not be placed on the retired-list of the Navy, and if the finding of the board be approved by the President, he shall be discharged with not more than one year's pay. [One year's leave pay, as decided by the accounting officers in 1882.] 5 Aug., 1882, P. E., p. 286. [Naval appropriation act.] NOTES.-After a sentence of dismissal from the service has been approved and carried into execution, the President cannot reconsider his approval and revoke the sentence.-Op. IV, p. 274, Nov. 3, 1843; Op. VII, p. 99, April 11, 1855; Op. X, p. 64, June 13, 1861; Op. XI, pp. 19 and 251, March 12, 1864, and June 20, 1865, re spectively; Op. XV, p. 291 and Feb. 24, 1881. The President by and with the advice and consent of the Senate, can supersede a military or naval officer by the nomination of a successor. The confirmation and appointment of the latter vacates the office of the former.-Blake's case, Supreme Court, Otto, 103, p. 227; also see Otto, 97, p. 426, Mimmack's case, and Otto, 102, 426, McElrath's case. So much of this section (1624) as relates to dismissal in time of peace did not take effect before August 20, 1866, on which day, in contemplation of law, the rebellion against the national authority was suppressed.-S. U., Otto, 102, p. 426. Not the effect of this act (sec. 1624) to withdraw the power of the President to supersede an officer by appointment, by and with the advice and consent of the Senate, of another.-Otto, 103, p. 226. Article 37, section 1624 (12 of act of March 3, 1865, 13 Statutes, 489), is constitutional and imperative. It provides, in certain contingencies, for the restoration of the officer to the service, and leaves the dismissal in full force if those contingencies do not happen.—Öp. XII, p. 4, Stanbery, August 6, 1866. The President in 1861 had the power to dismiss an officer from the Marine Corps.-Tyler's case, Op. 15, p. 421, Jan. 8, 1878. Dismissal of an acting master, March, 162, by the Secretary of the Navy, lawful. In the absence of legislation, the Secretary had a right to determine at what time an acting appointment should cease.-A. M. Smith's case, Op. XV, p. 560, April 25, 1876. The Secretary of the Navy had the power to dismiss an "acting gunner on temporary service" in the volunteer Navy. The power to appoint gunners to an undefined extent does not preclude the appointment of acting gunners also.Soper's case, Op. XV, p. 564, June 10, 1876. The 17th section of the act of July 12, 1862, chap. 200, v. 12, p. 594, authorized and requested the President to dismiss and discharge from the military service, either in the Army, Navy, Marine Corps, or volunteer force in the United States service, any officer for any cause which, in his judgment, either rendered such officer unsuitable for, or whose dismission would promote, the public service. This section was repealed by section 5 of an act approved July 13, 1866, chap. 176, v. 14, p. 90. In a case where an officer was dismissed by the President, and the dismissal revoked in due form, no unreasonable time having elapsed, the vacancy not hav ing been filled, and the rights of other parties not having intervened, the revocation presents only a case of Executive authority, which has repeatedly been exercised; but in view of late decisions the court gave judgment for the claimant in order that the case might go to the Supreme Court.-C. C., XVII, p. 344, Corson's case, Dec., 1881, term. Title 15, Chap.10. SEC. 1624, ART. 10. Any commissioned officer of the Navy or Marine Corps who, having tendered his resignation, quits his post or proper by duties without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of such resignation, shall be deemed and punished as a deserter. Desertion resignation. 5 Aug., 1861, s. 2, v. 12, p. 316. NOTES.-An offer to resign is revokable by the officer prior to its acceptance. After acceptance and before it has taken effect it may be modified or withdrawn entirely by the consent of both parties. Control over it, in point of duration, extends no further.-Op. XIV, p. 260, June 17, 1873; Op. XII, p. 555, Feb. 10, 1869. A resignation tendered to take effect on a future day, and placed in the hands of a party to be delivered to the President, can be recalled before delivery. Its subsequent delivery is not binding.-Op, XIII, p. 77, June 2, 1869. A valid resignation of a military officer, followed by an unconditional acceptance of it, operates to remove the incumbent, and a new appointment is required to restore him to the office.-Op. XII, p. 555, Feb. 10, 1869. But in cases where the officer was insane at time of resignation, his action was held to be a nullity and capable of being rectified.-Ops. III, p. 641, VI, p. 456, and X, Sec. p. 229. If the vacancy has been properly filled, the acceptance cannot be legally revoked.-Op. XV, p. 469, March 22, 1878; Otto, 103, p. 227. A civil officer has a right to resign at his own pleasure, and it is only necessary that it should be received by the Executive. Its acceptance or rejection by him is unimportant.-U. S. vs. Wright, 1 McLean, 509. A resignation does not become operative until the officer is officially notified of the acceptance of the same. Mere acceptance, without notice, does not give effect to the resignation. It is not until due notice of the same is received that the officer is legally separated from the Army and made a civilian, and up to the date of such notice he is entitled to pay.-Winthrop's Digest, p. 430. ENGINEER CORPS. [SEE ALSO NAVAL ACADEMY.] SEC. 424. The Chief of the Bureau of Steam Engineering shall be appointed from the chief engineers of the Navy, and shall be a skillful engineer. 5 July, 1862, s. 1, v. 12, p. 510. SEC. 1390. The active list of the Engineer Corps of the Navy shall consist of seventy chief engineers, who shall be divided into three grades. by relative rank, as provided in Chapter Four of this Title; [See 1476.] Ten chief engineers; Fifteen chief engineers; and Forty-five chief engineers, who shall have the relative rank of lieutenant-commander or lieutenant. And each and all of the above-named officers of the Engineer Corps shall have the pay of chief engineers of the Navy, as now provided. Sixty passed assistant engineers, who shall have the relative rank of lieutenant or mastert; and Forty assistant engineers, who shall have the relative rank of master or ensign; and the said assistant engineers shall have the pay of passed and assistant engineers of the Navy, respectively, as now provided.* 3 March, 1871, s. 7, v. 16, p. 536. 24 Feb., 1874, v. 18, p. 17. 5 Aug., 1882, P. E. L., 286. Hereafter only one-half of the vacancies shall be filled by promotion March 3, 1883. until the number is reduced as required by act of August 5, 1882. [Sec. 1390.] 3 March, 1883. [Naval appropriation act.] Restriction on promotion. SEC. 1391. Engineers shall be appointed by the President, by and Title 15, Chap. 1. with the advice and consent of the Senate. 31 Aug., 1842, s. 6, v. 5, p. 577. 25 July, 1866, s. 7, v. 14, p. 223. Appointment. SEC. 1392. No person under nineteen or over twenty-six years of age Qualificati on s. shall be appointed an assistant engineer in the Navy; nor shall any person be appointed or promoted in the Engineer Corps until after he has been found qualified by a board of competent engineers and medical officers designated by the Secretary of the Navy, and has complied with existing regulations. 3 March, 1871, s. 8, v. 16, p. 536. 24 Feb., 1874, v. 18. p. 17. 25 July, 1666, s. 7, v. 14, p. 223. NOTE.-The naval appropriation act approved August 5, 1882, requires that thereafter all appointments to the Engineer Corps shall be made from naval cadets, graduates of the year in which the vacancies which they are appointed to fill shall occur. See NAVAL ACADEMY. SEC. 1393. The President may designate among the chief engineers in Engineer of the the service, and appoint to every fleet or squadron, an engineer, who fleet. shall be denominated "engineer of the fleet." 21 April, 1864, s. 7, v. 13, p. 54. *The titles of first and second assistant engineers were changed to passed and assistant engineers, respectively, Feb. 24, 1874. The grade of third assistant was a bolished July 15, 1870. Lieutenant of the junior grade. (March 3, 1883.) Title 15, Chap. 4. Rank of Chief of Bureau. Rank. SEC. 1471. The Chief of the Bureau of Steam Engineering shall have the relative rank of commodore while holding said position, and the title of engineer-in-chief. # * * 3 March, 1871, s. 12, v. 16, p. 537. SEC. 1476. Officers of the Engineer Corps on the active list shall have relative rank as follows: Of the chief engineers, ten shall have the relative rank of captain, On the active fifteen that of commander, and forty-five that of lieutenant-commander or lieutenant. list. Passed assistant engineers shall have the relative rank of lieutenant or master*, and assistant engineers that of master* or ensign. from age or shall have served faithfully for forty-five years, shall, when retired, length of service. have the relative rank of commodore; and who have been Engineers or shall be retired at the age of sixty-two years, before having served for forty-five years, but who shall have served faithfully until retired, shall, on the completion of forty years from their entry into the service, have the relative rank of commodore. 3 March, 1871, s. 11, v. 16, p. 537. SEC. 1484. Engineer officers graduated at the Naval Academy shall graduated at the take precedence with all other officers with whom they have relative Academy. rank, according to the actual length of service in the Navy. Mliitary command. Title 15, Chap. 8. Pay of fleet engineers. 3 March, 1873, s. 1, v. 17, p. 555, NOTE.-Engineer officers, graduates of the Naval Academy, are not entitled to the six years' constructive service allowed to other staff officers of the Navy in estimating length of service. Engineer officers not graduated at the Acad emy, stand on the same footing with other staff officers, and are entitled to the constructive service.-Op. XV, p. 336, Devens, July 11, 1877. SEC. 1488. The relative rank given by the provisions of this chapter to officers of the ** Engineer Corps shall confer no authority to # exercise military command. SEC. 1556. * 5 Aug., 1854, s. 4, v. 10, p. 587. G. O., 31 Aug., 1846, and 27 May, 1847. 3 March, 1859, s. 2, v. 11, p. 407. * Fleet engineers, four thousand four hundred dollars. Chief engineer having the same rank as pay director and pay inspector, when on duty at sea, four thousand four hundred dollars. When not at sea, the same as surgeons and paymasters, respectChief engineers. ively. Chief engineers, who have the same rank with pay masters, during the first five years after date of commission, when at sea, two thousand eight hundred dollars; on shore duty, two thousand four hundred dollars; on leave, or waiting orders, two thousand dollars; during the second five years after such date, when at sea, three thousand two hundred dollars; on shore duty, two thousand eight hundred dollars; on leave, or waiting orders, two thousand four hundred dollars; during the third five years after such date, when at sea, three thousand five hundred dollars; on shore duty, three thousand two hundred dollars; on leave, or waiting orders, two thousand six hundred dollars; during the fourth five years after such date, when at sea, three thousand seven hundred dollars; on shore duty, three thousand six hundred dollars; on leave, or waiting orders, two thousand eight hundred dollars; after twenty years from such date, when at sea, four thousand two hundred dollars; on shore duty, four thousand dollars; on leave, or waiting orders, three thousand dollars. Passed assistant engineers, during the first five years after date of appointment, when at sea, two thousand dollars; on shore duty, one thousand eight hundred dollars; on leave, or waiting orders, one thousand five hundred dollars; after five years from such date, when at sea, two thousand two hundred dollars; on shore duty, two thousand dollars; on leave, or waiting orders, one thousand seven hundred dollars. Assistant engineers, during the first five years after date of appointment, when at sea, one thousand seven hundred dollars; on shore duty, one thousand four hundred dollars; on leave, or waiting orders, one thousand dollars; after five years from such date, when at sea, one thousand nine hundred dollars; on shore duty, one thousand six hun* Lieutenant of the junior grade. (March 3, 1883.) |