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1364. Recruits enlisting in the Army must be effective General qualiand able-bodied men, and between the ages of eighteen and Mar. 16,1502, C. thirty-five years, at the time of their enlistment." nis Mar. 3, 1815, c. 79,

S. 7, v. 3, p. 221; limitation as to age shall not apply to soldiers reenlisting. Jul 5233, c.

162, s. 30, v. 5, p. 260; Feb, 13, 1862, c. 25, s. 2, v. 12, p. 339; June 21, 1862, Res, 37, v.12, p. 620; July 17, 1862, c. 200, s. 21, v. 12, p. 597; Feb. 27, 1893,

v. 27, p. 486; Mar. 2, 1899, s. 4, v. 30, p. 978. Sec. 1116, R. S. 1365. The limits of age for original enlistments in the Limits of uger Army shall be eighteen and thirty-five years. Sec. 4, act 4, v. 30, p. 978. of March 2, 1899 (30 Stat. L., 978).

The requirements of section 1116, Revised Statutes, in respect to the limits of age for recruits upon their original enlistment into the military service have been modified by the act of February 27, 1893 (27 Stat. L., 486), which established the superior limit at thirty years in time of peace, and by section 4 of the act of March 2, 1899 (30 Stat. L.,978), which fixes the limits of age for original enlistments at from eighteen to thirty-five years.

Enlistment is a contract, but it is one of those contracts which changes the status, and where that is changed no breach of contract destroys the new status or relieves from the obligations which its existence imposes.

By enlistment the citizen becomes a soldier. His relations to the State and the public are changed. He acquires a new status, with correlative rights and duties, and although he may violate his contract obligations, his status as a soldier is unchanged. He can not of his own

*

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citizen

Age, ship.

v, p. 978.

1366. In time of peace no person (except an Indian) who Aug, 2, 1894,5: is not a citizen of the United States, or who has not made Mar..?, 1998, s. 4, legal declaration of his intention to become a citizen of the

United States, or who can not speak, read, and write the
English language, or who is over thirty-five years of age,
shall be enlisted for the first enlistment in the Army.'
Sec. 4, act of March 2, 1899 (30 Stat. L., 978).

1367. No person under the age of twenty-one years shall

be enlisted or mustered into the military service of the Sec. 1117,R.s. United States without the written consent of his parents

or guardians: Provided, That such minor has such parents or guardians entitled to his custody and control.

1368. No minor under the age of sixteen years, no insane 68.5.6,1.1, p. 617; or intoxicated person, no deserter from the military service 237, 2.5, v. 13. p.: of the United States, and no person who has been conc.79,s.18, v. 13, p. victed of a felony shall be enlisted or mustered into the c.69, v. 19, p. 212. military service.

Enlistment of minors.

May 15, 1872, c. 162, s. 1, v. 17, p. 117.

Persons not to be enlisted.

Mar. 2, , c.

490; Feb. 27, 1877,

Sec. 1118, R.S.

volition throw off the garments he has once put on, nor can he, the State not objecting, renounce his relations and destroy his status on the plea that, if he had disclosed truthfully the facts, the other party, the State, would not have entered into the new relations with him or permitted him to change his status. L. S. r. Grimley, 137 U. S., 147.

Our law not defining enlistment, nor designating what proceeding or proceedings shall or may constitute an enlistment, it may be said, in general, that any act or acts which indicate an undertaking, on the part of a person legally competent to do so, to render military service to the United States for the term required by existing law, and an acceptance of such service on the part of the Government, may ordinarily be regarded as legal evidence of a contract of enlistment between the parties and as equivalent to a formal agreement where no such agreement has been had. The fortyseventh article of war practically makes the receipt of pay by a party as a soldier evidence of an enlistment on his part, estopping him from denying his military capacity when sought to be made amenable as a deserter. The continued rendering of service which is accepted may constitute an enlistment. But enlistments in our Army are now almost invariably evidenced by a formal writing and engagement under oath. Dig. Opin. J. A. G., 384, par. 1. See also In re McDonald, 1 Lowell, 100.

An enlistment is the act of making a contract to serve the Government in a subordinate capacity either in the Army or the Navy. Erichson v. Beach, 40 Conn., 283. An enlistment is not a contract only, but effects a change of status. In re Grimley, 137 U. S., 151. The statutes employ the term "enlist' only with reference to contracts with persons who enter the Army as privates, and to certain other classes of men, like Indian scouts and hospital stewards, who rank like soldiers, and voluntarily put themselves under military law. Babbitt v. U. S., 16 Ct. Cls., 214.

1 Any male citizen of the United States, or person who has legally declared his intention to become a citizen, if above theage of twenty-one and under the age of thirtyfive years, able-bodied, free from disease, of good character and temperate habits, may be enlisted under the restrictions contained in this article. In regard to age or citizenship this regulation shall not apply to soldiers who have served honestly and faithfully a previous enlistment in the Army. Par. 921, A. R., 1901. See also circular of June 3, 1898, from the Adjutant-General's Office for qualifications for volunteer recruits.

2 Sections 1116, 1117, and 1118, Revised Statutes, providing that deserters, convicted felons, insane or intoxicated persons, and certain minors shall not be enlisted are regarded as directory only, and not as making necessarily void such enlistments, but as rendering them voidable merely, at the option of the Government. In cases of such enlistments, except of course where the party, by reason of mental derangement or drunkenness was without the legal capacity to contract, the Government may elect to hold the soldier to service, subject to any application for discharge which may be addressed by himself or his parent, etc., either to the Secretary of War or to a United

3 Art. War.

1369. Every officer who knowingly enlists or musters Enlistment of into the military service any minor over the age of sixteen ed, [eighteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated persons, or any deserter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct. Third Article of War. Sec. 4, act of March 2, 1899 (30 Stat. L., 978).

1370. That hereafter all enlistments in the Army shall nderm of enlistbe for the term of three years, and no soldier shall be requalifications again enlisted in the Army whose service during his last mont, preceding term of enlistment has not been honest and 1894, v. 28, p. 216 faithful.

1371. A premium of two dollars shall be paid to any cit- Premium izen, noncommissioned officer, or soldier for each accepted Resumen

, 22. 12.02. recruit he may bring to a recruiting rendezvous."

1372. Fraudulent enlistment, and the receipt of any pay listment or allowance thereunder, is hereby declared a military Sec. 3, July 27 offense and made punishable by court-martial, under sixty-second article of war. Sec. 3, act of July 27, 1892 (27 Stat. L., 278).

Sec. 2, Aug. 1.

for recruit.

620.

Sec. 1120, R.S. Fraudulenten

1892, v. 27

REENLISTMENT.

1873. All enlisted men mentioned in section twelve hun- Reenlistment, dred and eighty who, having been honorably discharged, 1926

Sec. 1282,. have reenlisted or shall reenlist within three months

States court. Dig. Opin. J. A. G., 385, par. 3. See, also, U. S. 1. Gri ey, 137 C.S., 147, cited in note to paragraph 1361, ante.

The enlistment contract of a minor is void when the recruit is under 16, with or without the consent of the parent. In re Lawler, 40 F. R., 233: It is not void, but voidable only, as to minors between 16 and 21. V. S. 1. Morrissey, 137 L'. S., 157. It is not voidable at the instance of the minor. Ibid. It is voidable at the instance of the parent or guardian. Com. l'. Blake, 8 Phil., 523; Turner v. Wright, 5 ibid., 296; Menges 1. Camac., 1 Serg. and R., 87; Henderson v. Wright, ibid., 299; Seavey v. Seymour, 3 Cliff., 439; In re Cosenow, 37 F. R., 668; In re Hearn, 32 ibid., 141; In re Davison, 21 ibid., 618; C. S. 1. Wagner, 24 ibid., 135; In re Dohrendorf, 40 F. R., 148; In re Spencer, ibid., 149; In re Lawler, ibid., 233; In re Wall, 8 ibid., 85.

A minor's contract of enlistment is voidable, not void, and is not so voidable at the instance of the minor. If, after enlistment, he commits an offense, is actually arrested, and in course of trial before the contract is duly avoided, he may be tried and punished. In re Wall., 8 Fed. Rep., 85; see also Barrett r. Hopkins, 7 ibid., 312.

The contract of enlistment is an entirety. If service for any portion of the time is criminally omitted the pay and allowances for faithful services are not earned. Lander 2. Ư. S., 92 U. S., 17.

As to what constitutes faithful service within the meaning of this statute, see note to paragraph 1373, post. This section operates to repeal section 1119, Revised Statutes, and section 2 of the act of June 16, 1890 (26 Stat. L., 187), which fixed the term of enlistment in the Army at five years.

* This statute is practically obsolete. It was last applied during the rebellion of 1861-1805 against the United States.

Additional рау.

thereafter, shall after five years' service, including their first enlistment, be paid at the rate allowed in said section to those serving in the fifth year of their first enlistment."

1374. Every soldier who, having been honorably dis1894, 124, p.216 charged, reenlists within three months thereafter, shall Sec. 1281,R.S. be further entitled after five years service, including his

first enlistment, to receive for the period of five years
next thereafter two dollars per month in addition to the
ordinary pay of his grade; and for each successive period
of five years of service so long as he shall remain continu-
ously in the Army a further sum of one dollar per month.
The past continuous service of soldiers now in the Army
shall be taken into account and shall entitle such soldier
to additional pay according to this rule; but services ren-
dered prior to August fourth, eighteen hundred and fifty-
four, shall in no case be accounted as more than one
enlistment.
1375. That the period within which soldiers may

reenlist with the benefits conferred by sections twelve hundred and 1891, v. 28, p. 216. eighty-two and twelve hundred and eighty-four of the

Revised Statutes, be, and the same is hereby, extended to three months; and hereafter cvery cnlisted man in the Army,

shall be entitled to all the benefits conferred by sections twelve hundred and eighty-one and

twelve hundred and eighty-two of the Revised Statutes. Continuous Provided, That to entitle them to the additional pay

authorized by section twelve hundred and eighty-one, for men serving in the third, fourth, and fifth years, the serv

Period extended to three months,

Sec. 3, Aug. 1,

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service.

The additional pay given to soldiers by this section does not depend upon mere length of service, but upon two other conditions--an honorable discharge and a voluntary reenlistment. Webb 7. U. S., 23 Ct. Cls., 58. It is intended, primarily, to be an inducement to the prompt reenlistment of an honorably discharged soldier, and it can be earned in no other way. Ibid.

The act of June 16, 1890 (26 Stat. L., 157), contained the provision that the Secretary of War shall determine what misconduct shall constitute a failure to render honest and faithful service within the meaning of this act. But no soldier who has deserted at any time during the term of an enlistment shall be deemed to have served such term honestly and faithfully.” Under the authority conferred by this statute the Secretary of War has decided that in the following cases there has been a failure to render honest and faithful service:

(1) Desertion.

(2) When the soldier is in confinement under a general court-martial sentence expressly imposing imprisonment until or beyond the expiration of his term; when discharged under sentence of general court-martial; when discharged by order from the War Department specifying forfeiture, or because of imprisonment by the civil authority.

(3) When the soldier is discharged for minority concealed at enlistment, or forother cause involving fraud in enlistment, or for disability caused by his misconduct.

(4) Upon the approved finding of a board of officers, called under paragraph 148, that the soldier has not served honestly and faithfully to the date of discharge.

The cause of forfeiture will be stated on the muster and pay rolls and on the final statements of the soldier.

ice must have been continuous within the meaning of this section.' Sec. 3, act of August 1, 1894 (28 Stat. L., 216)

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service.

1376. Any person enlisted in the military service of the Transfer from

military to naval United States may, on application to the Navy Depart

July 1, 1861, c. ment, approved by the President, be transferred to the 201, s. 1, v. 13, p. Navy or Marine Corps, to serve therein the residue of his Sec. 1421, R.S. term of enlistment, subject to the laws and regulations for the government of the Navy. But such transfer shall not release him from any indebtedness to the Government, nor, without the consent of the President, from any penalty incurred for a breach of military law.

1377. Any enlisted man in the Army shall be eligible Ospital bers for transfer to the Hospital Corps as a private. Sec. 5, Act of March 1, 1887 (24 Stat. L., 435).

Mar. 1, 1887, s. 5, v. 24, p. 435.

FURLOUGHS TO ENLISTED MEN.

1378. Every cfficer commanding a regiment or an inde- Funeusihan pendent troop, battery, or company, not in the field, may, when actually quartered with such command, grant furloughs to the enlisted men, in such numbers and for such time as he shall deem consistent with the good of the service. Every officer commanding a regiment, or an independent troop, battery, or company, in the field, may

1 This section repeals and replaces the requirement of the act of February 27, 1893 (27 Stat. L., 486), " that hereafter, in time of peace no recruit shall be enlisted in the Army for the first time who is over 30 years of age, and no private shall be reenlisted who has served ten years or more, or who is over 35 years of age, except such as have already served as enlisted men for twenty years or upward."

2 TRANSFER OF ENLISTED MEN.

Transfers of enlisted men will be made for cogent reasons only. They will be effected as follows:

(1) From one company to another of the same regiment, not involving change of station, by the colonel. In cases involving change, then by the colonel with the consent of the department commander if change of station is within department limits.

(2) From one regiment to another, and between companies of the same regiment serving in different military departments, by the Commanding General of the Army.

(3) In all other cases, by the Secretary of War. Par. 125, A. R., 1901.

DETACHED SOLDIERS.

Enlisted men detached from their companies will be provided with descriptive lists showing the pay due them, the condition of their clothing allowance, and all information necessary to the settlement of their accounts with the Government should they be discharged. When it can be avoided, the descriptive list will not be intru-ted to the soldier, but to an officer or noncommissioned officer, under whose charge he may be serving, or it may be forwarded by mail. The immediate commanding officer will note upon the descriptive lists the date and result of the last vaccination of each soldier. Par. 115, ibid.

H. Doc. 515 -33

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