the United States Navy or Marine Corps, without having first received a discharge from the regiment, troop, or company in which he had previously served shall be removed in all cases wherein it shall be made to appear to the satisfaction of the Secretary of War, from such rolls and records, or from other satisfactory testimony, that such reenlistment was not made for the purpose of securing bounty or other gratuity that he would not have been entitled to had he remained under his original term of enlistment; that the absence from the service did not exceed four months, and that such soldier served faithfully under his reenlistment. Sec. 3, acts of March 2, 1889 (25 Stat. L., 869); May 9, 1892, (27 ibid, 27).

1245. Whenever it shall appear from the official records in the office of the Adjutant-General, United States Army [or the Record and Pension Office of the War Department'], that any regular or volunteer soldier of the late war was formally restored to duty from desertion by the commander competent to order his trial for the offense, or, having deserted and being charged with desertion, was, on return to the service, suffered, without such formal restoration, to resume his place in the ranks of his command, serving faithfully thereafter until the expiration of his term, such soldier shall not be deemed to rest under any disability because of such desertion in the prosecution of any claim for pension, on account of disease contracted or wounds or injuries received in the line of his duty as a soldier. Sec. 4, ibid.

Limitation.

Return to duty

without trial,

Sec. 4, ibid.

ty.
Sec. 5, ibid.

1246. When the charge of desertion shall be removed,Pay and boununder the provisions of this act from the record of any soldier, such soldier, or, in case of his death, the heirs or legal representatives of such soldier, shall receive the pay and bounty due to such soldier. Sec. 5, ibid.

pay, etc., while

leave.

without

1247. This act shall not be so construed as to give to any Not entitled to such soldier, or, in case of his death, to the heirs or legal absent representatives of any such soldier, any pay, bounty, or Ibid. allowance for any time during which such soldier was absent from his command without proper authority, nor shall it be so construed as to give any pay, bounty, or allowance to any soldier, his heirs or legal representatives, who served in the Army a period of less than six months.2 Sec. 5, ibid.

1Act of May 9, 1892 (27 Stat. L., 27).

"The persons from whose military record there may be a removal of the charge of desertion, under the act of March 2, 1889, chapter 390, are those against whom such a charge is "now standing." Deserters, therefore, whose cases had, at the date of

Mexican war soldiers.

for removal of

tion.

1248. The Secretary of War is hereby authorized and Application directed to amend the military record of any soldier who charge of deser-enlisted for the war with Mexico, upon proper application, where the rolls and records of the Adjutant-General's Office show the charge of desertion against him, when such rolls and records show the facts set out in the following

Sec. 6, ibid.

Length of serv

ice.

Voluntary re

turn.

Casesexcepted.
Sec. 7, ibid.

cases:

First. That said soldier served faithfully the full term of his enlistment, or having served faithfully for six months or more, and until the fourth day of July anno Domini eighteen hundred and forty-eight, left his command without having received a discharge.

Second. That such soldier, after said charge of desertion was entered on the rolls, voluntarily returned to his command within a reasonable time, and served faithfully until discharge. Sec. 6, ibid.

1249. The provisions of this act shall not be so construed as to relieve any soldier from the charge of desertion who left his command from disaffection or disloyalty to the Government, or to evade the dangers and hardships of the service, or whilst in the presence of the enemy (not being sick or wounded), or while in arrest or under charges for breach of military duty, or in case of a soldier of the Mexican war who did not actually reach the seat of war. Sec. 7, ibid.

the act, been judicially duly disposed of-by trial, conviction, and sentence by court-martial-are not within the purview of the statute. Dig. Opin. J. A. G., par. 1103.

Held, that a soldier had “served faithfully" in the sense of section 1 of the lastnamed act when, having been sentenced to reduction and confinement on conviction of desertion, his sentence had been duly executed, and he had thereupon returned to duty and served for a considerable further period in a status of honor. Ibid., par. 1104. The act of 1889 provides that the charge of desertion shall be removed if the soldier has "served faithfully until May 1, 1865, having previously served six months or more" Held, that the six months of service need not have been continuous, provided they were actually served before May 1, 1865, and the soldier was in service at that date. Ibid., par. 1105.

*

* *

*

*

*

Held, that a soldier was not within the description of the third division, section 2, of the act of 1889, of having been "discharged" from service by a court of "competent jurisdiction," who had, as a minor, enlisted without consent, been discharged upon habeas corpus by a State court. Ibid., par. 1107.

A pardon does not operate retroactively, and can not therefore "remove a charge" of desertion. It does not wipe out the fact that the party did desert, nor can it make the record say that he did not desert. It can not change facts of history. Ibid., par. 1117.

The restoration of a deserter to duty without trial under par. 132, A. R. [1895], does not operate as an acquittal, or relieve the deserter from the forfeitures of pay (including retained pay) incurred by operation of law under paragraphs 1380 and 1381, A. R. 1895. Ibid., 351, par. 48.

Military record honorable dis

corrected and

charge to issue.

1250. When such charge of desertion is removed under the provisions of this act, the soldier shall be restored to a status of honorable service, his military record shall be Sec. 8, ibid. corrected as the facts may require, and an honorable discharge shall be issued in those cases where the soldier has received none; and he shall be restored to all his rights as to pension, pay, or allowances as if the charge of desertion Pension, etc., had never been made; and in case of the death of said soldier, his widow or other legal heir shall be entitled to the same rights as in case of other deceased honorably discharged soldiers. Sec. 8, ibid.

claims.

No pay while

Claims to

be

filed within three

1251. This act shall not be construed to give to any absent." soldier, or his legal representatives or heir, any pay or allowance for any period of time he was absent without leave and not in the performance of military duty. Ibid. 1252. All applications for relief under this act shall be made to and filed with the Secretary of War within the period of three years from and after July first, eighteen hundred and eighty-nine, and all applications not so made and filed within said term of three years shall be forever barred, and shall not be received or considered. ibid.

Sec. 9,

years from July

1889.

Sees. 9 and 10,

ibid.

for applications. Mar. 2, 1895, v. 28, p. 814.

1253. Section nine of the act for the relief of certain Time extended volunteer and regular soldiers of the late war and the war, with Mexico, approved March second, eighteen hundred and eighty-nine, is hereby so amended as to remove the limitation of time within which applications for relief may be received and acted upon under the provisions of said act. Act of March 2, 1895 (28 Stat. L., 814).

REMUSTER OF OFFICERS OF VOLUNTEERS.

cases.

29, p. 593.

1254. Any person who was duly appointed or commissioned to be an officer of the volunteer service during the Feb. 24, 1897, V. war of the rebellion, and who was subject to the mustering regulations at the time applied to members of the volunteer service, shall be held and considered to have been mustered into the service of the United States in the grade named in his appointment or commission from the date from which he was to take rank under and by the terms of his said appointment or commission, whether the

'The act of July 27, 1892 (27 Stat. L., 278), extended the operation of this section for a period of two years from July 1, 1892. By the act of March 2, 1895 (28 ibid., 814), the limitation of time was indefinitely extended.

same was actually received by him or not, and shall be entitled to pay, emoluments, and pension as if actually mustered at that date: Provided, That at the date from which he was to take rank by the terms of his said appointment or commission there was a vacancy to which he could be so appointed or commissioned, and his command had either been recruited to the minimum number required by law and the regulations of the War Department, or had been assigned to duty in the field, and that he was actually performing the duties of the grade to which he was so appointed or commissioned; or if not so performing such duties, then he shall be held and considered to have been mustered into service and to be entitled to the benefits of such muster from such time after the date of rank given in his commission as he may have actually entered upon such duties: Provided further, That any person held as a prisoner of war, or who may have been absent by reason of wounds, or in hospital by reason of disability received in the service in the line of duty, at the date of issue of his appointment or commission, if a vacancy existed for him in the grade to which so appointed or commissioned, shall be entitled to all the benefits to which he would have been entitled under this act if he had been actually performing the duties of the grade to which he was appointed or commissioned at said date: Provided further, That this act shall be construed to apply only in those cases where the commission bears date prior to June twentieth, eighteen hundred and sixty-three, or after that date when the commands of the persons appointed or commissioned were not below the minimum number required by then existing laws and regulations: And provided further, That the pay and allowances actually received for the period covered by the recognition extended under this act shall be deducted from the sums otherwise to be paid thereunder. Act of February 24, 1897 (29 Stat. L., 593).

1255. The heirs or legal representatives of any person whose muster into service shall be recognized and established under the terms of this act shall be entitled to receive the arrears of pay and emoluments due, and the pension, if any, authorized by law, for the grade to which recognition shall be so extended. Sec. 2, ibid.

1256. The pay and allowances of any rank or grade paid to and received by any military or naval officer in good faith for services actually performed by such officer

in such rank or grade during the war of the rebellion, other than as directed in the fourth proviso of the first section of this act, shall not be charged to or recovered back from such officer because of any defect in the title of such officer to the office, rank, or grade in which such services were so actually performed. Sec. 3, ibid.

CERTIFICATES OF SERVICE IN MILITARY TELEGRAPH CORPS.

Jan. 26, 1897, v

1257. The Secretary of War is hereby authorized and Certificates. directed to prepare a roll of all persons who served not 29. p. 497. less than ninety days in the operation of military telegraph lines during the late civil war, and to issue to each, upon application, unless it appears that his service was not creditably performed, or to the representatives of those who are dead, suitable certificates of honorable service in the military telegraph corps of the Army of the United States, stating the service rendered, the length of such service, and the dates, as near as may be, between which such service was performed: Provided, That this law shall Restriction not be construed to entitle the persons herein mentioned to any pay, pension, bounty, or rights not herein specifically provided for. Act of January 26, 1897 (29 Stat L., 497).