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grant furloughs, not exceeding thirty days at one time, to
five per centum of the enlisted men, for good conduct in
the line of duty, but subject to the approval of the com-
mander of the forces of which said enlisted men form a
part. Every company officer of a regiment, commanding
any troop, battery, or company not in the field, or com-
manding in any garrison, fort, post, or barrack, may, in
the absence of his field officer, grant furloughs to the
enlisted men, for a time not exceeding twenty days in six
months, and not to more than two persons to be absent at
the same time. Eleventh Article of War.

1 Furloughs in the prescribed form for periods of twenty days may be granted to enlisted men by commanding officers of posts, or by regimental commanders if the companies to which they belong are under their control. A furlough will not be granted to a soldier about to be discharged. Par. 116, A. R., 1901

Corps or department commanders may grant furloughs to enlisted men, sergeants of the post noncommissioned staff excepted, for two months, and the Commanding General of the Army for four months, or they may extend to such periods furloughs already granted. For a longer period than four months the authority of the Secretary of War is necessary. Permission to delay may be granted to enlisted men traveling under orders as authorized for furloughs. The conditions under which furloughs to soldiers on reenlistment are authorized will be announced from time to time in orders. Par. 117, ibid; G. O., 23, A. G. O., 1899.

Furloughs to sergeants of the post noncommissioned staff or to enlisted men acting as such may be granted as foÎlows: By a post commander for seven days, in case of emergency only; by a department commander for one month. Application for furlough for a longer period will be forwarded to the Adjutant-General of the Army for the decision of the Secretary of War. Par. 119, ibid.

Furloughs will not be granted by commanding officers permitting soldiers to go beyond the limits of the next higher command. To enable them to pass such limits the sanction of higher authority must be obtained and indorsed on the furloughs. The approval of the Secretary of War must be obtained to allow an enlisted man on furlough to leave the United States. The limits prescribed will be stated in the furlough, and if exceeded it may be revoked and the soldier arrested. A company commander in forwarding an application for furlough will state previous absences on furlough and the authority therefor. Par. 120, ibid.

On the application of a soldier on furlough, made at the nearest military station and showing clearly the urgency of his case, a department commander may order transportation and subsistence to be furnished to enable him to rejoin his proper station, and the company commander will charge the cost thereof against the soldier's pay on the next muster and pay roll, in accordance with paragraphs 1203 and 1422. The date of the application will be entered on the furlough. Par. 121, ibid.

A soldier who has returned from furlough to the station from which furloughed, his company having in his absence changed station, is entitled to transportation at the expense of the Government to the new station of his company. Par. 111, ibid., 1895.

Soldiers on furlough will not take with them their arms or accouterments, and no payments will be made to them without authority from the Secretary of War. Par. 121, ibid. For orders in respect to sick furloughs to enlisted men of the volunteer forces see G. (., 114, 121, 130, 134, 139, 148, 168, 170, 173, and 175, A. G. O., 1898; Circulars 34, 39, 41, and 48, A. G. O., 1898.

Section 2 of the act of June 16, 1890 (26 Stat. L., 157), contained the requirement that “at the end of three years from the date of his enlistment every soldier whose antecedent service has been faithful shall be entitled to receive a furlough for three months, and that in time of peace he shall at the end of such furlough be entitled to receive his discharge upon his own application: Provided further, That soldiers discharged under the provisions of this section shall not be entitled to the allowances provided in section twelve hundred and ninety of the Revised Statutes.” See, however, in this connection section 2 of the act of August 1, 1894 (paragraph 1370, ante), which reduced the length of the term of enlistment in time of peace to three years. Section 2 of the act of June 16, 1890, ceased to be operative as to furloughs on August 1, 1897, and as to discharges at expiration of furlough on November 1, 1897.

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THE RETIREMENT OF ENLISTED MEN.

Par.

etc., to be com

Par.
1379. Retirement after thirty years' serv- 1381. Foreign service.
ice.

1382. Allowance for subsistence, etc. 1380. War service.

1379. When an enlisted man has served as such thirty en Retirements years in the United States Army or Marine Corps, either ter thirty years' as private or noncommissioned officer, or both, he shall Feb. 14, 1885, by application to the President be placed on the retired 1890, v.26, p. 504. list hereby created, with the rank held by him at the date of retirement, and he shall receive thereafter seventy-five per centum of the pay and allowances of the rank upon which he was retired. Act of February 14, 1885 (23 Stat. L., 305).

1380. If said enlisted man had war service with the War service, Army in the field, or in the Navy or Marine Corps in pinted as double active service, either as volunteer or regular, during the 2600, 1890, v. war of the rebellion, such war service shall be computed as double time in computing the thirty years necessary to entitle him to be retired.' Act of September 30, 1890 (26 Stat. L., 504).

The act of February 14, 1885 (23 Stat. L., 305), which created the retired list for enlisted men, was amended by the act of September 30, 1890 (26 Stat. L., 504), by the addition of the proviso permitting war service during the war of the rebellion to be computed as double time in computing the thirty years' service necessary to entitle him to be retired.

An enlisted man on the retired list is subject to trial by court-martial, and to dishonorable discharge by sentence, if such be adjudged. 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 ciaim by serious misconduct. So, held that retired enlisted men could not legally be discharged by Executive order under the Fourth Article of War, which contemplates soldiers on the active list only. Dig. Opin. J. A. G., par. 2218.

Theld, 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, etc., and receive pay for such employment, while at the same time retaining their positions on the retired list and receiving retired pay. Dig. Opin. J. A. G., par. 2219.

The act of February 14, 1885 (23 Stat. L., 305), entitles a retired enlisted man to three-fourths of his service ration. He is not entitled to commutation for things which, in active service, he enjoys only in common with others, such as medicine, medical services, fuel, and quarters. Mckenna v. U. S., 23 Ct. ('ls, 308.

The authorized pay and allowances of retired enlisted men will be paid them monthly by the Pay Department. Their pay will be three-fourths of the monthly pay allowed them by law in the grade held when retired, including reenlisted and continuous-service pay then received. No deduction will be made except the monthly tax of 12, cents for the support of the Soldiers' Hoine. They are not entitled to conimutation for fuel or quarters, but will receive commutation for subsistence and clothing as follows:

For subsistence. --At the rate of 222 cents per day.

For clothing.--Three-fourths of the average annual allowance prescribed in orders for an entire enlistment in the grade from which retired, one-twelfth of such amount to be paid monthly. The allowance of clothing to chief musicians is the same as that to quartermaster-sergeants. Par. 119, A. R., 1901.

It has been held by the Secretary of War that the term “war service," as used in the act of September 30, 1890, shall include service rendered as a commissioned offi

Foreign service.

31, p. 211.

1381. Hereafter, in computing length of service for Max 126, 1890, v. retirement, credit shall be given the soldier for double

the time of his actual service in Porto Rico, Cuba, or in the Philippine Islands. Act of May 26, 1900 (31 Stat. L., 211).

1382. Hereafter a monthly allowance of nine dollars and Mar. 16, 189, v. fifty cents shall be granted in lieu of the allowance for 29, p. 62.

subsistence and clothing. Act of March 16, 1896 (29 Stat. L., 62).

Allowance for subsistence and clothing.

DISCHARGE OF ENLISTED MEN.

Par.

Par. 1383. Discharges, by whom given. 1387. Discharge for dependency of parent. 1384. Jurisdiction after dishonorable dis- 1388, 1389. Duplicate certificate of discharge.

charge. 1385. Discharge for disability.

1390. The same, return of certificate. 1386. Discharge by purchase. Discharge of

1383. No enlisted man, duly sworn, shall be discharged enlisted men. 4 Art. War.

from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer, when no field officer is present; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial.' Fourth Article of War.

cer, and that, for the purposes of this statute, the war began on April 15, 1861, and ended on April 2, 1866, as respects all theaters of operation, except the State of Texas, and as to that State that the war ended on April 20, 1866. Circular No. 2, 11 H. Q. A., March 10, 1891.

Upon the retirement of an enlisted man from active service he is entitled to transportation in kind to the place of his enlistment or to his home. Section 1290, Revised Statutes, does not apply to enlisted men transferred to the retired list, in that they are not discharged. 3 Dig. 2nd Compt. Dec., par. 874; U. S. v. Tyler, 105 U. S., 244.

An enlisted man will not be discharged before the expiration of his term except: 1. By order of the President or Secretary of War. 2. By sentence of a general court-martial.

3. On certificate of disability, by direction of the commander of a territorial department or army in the field; but when the disability of a soldier is caused by disease contracted before enlistment, or by his own misconduct or bad habits, discharge will be ordered only by the Secretary of War.

4. In compliance with an order of one of the United States courts, or a justice or a judge thereof, on a writ of habeas corpus. Par. 151, A. R., 1901.

The act of March 16, 1896 (29 Stat. L., 63), contains the requirement "that no enlisted man discharged by order of the Secretary of War for disability caused by his own misconduct shall be entitled to the travel allowances provided for in section 1290 of the Revised Statutes."

When an enlisted man is discharged, his company commander will furnish him with final statements in duplicate or a full statement in writing of the reasons why such final statements are not furnished. Final statements will not be furnished a soldier who has forfeited all pay and allowances and has no deposits due him. When the discharge is made on certificate of disability, the ascertained disability as recited in the certificate must be given in the final statements as the reason or cause for discharge. Par. 152, A. R., 1901.

When an enlisted man is discharged by expiration of service, his discharge will take effect on the last day thereof; i. e., if enlisted on the second day of the month

1384. Soldiers sentenced by court-martial to dishonora- lurisdiction ble discharge and confinement' shall, until discharged from blydscharger such confinement, remain subject to the Articles of War 5, v. 30, p. 484. s. and other laws relating to the administration of military justice. Sec 5, act of June 18, 1898 (30 Stat. L., 484).

1385. No enlisted man discharged by order of the Sec-Discharge for retary of War for disability caused by his own misconduct misconduct

hall be entitled to the travel allowances provided for in 29, p. 03.
section 1290 of the Revised Statutes. Act of March 16,
1896 (29 Stat. L., 63).

Mar. 16, 1896, v.

his term will expire on the first day of the same month in the last year of his term of enlistment. Par. 154, ibid.

For provisions of regulations respecting the discharge of enlisted men see paragraphs 151-170, Regulations of 1901.

'DISHONORABLE DISCHARGE.

A dishonorable discharge from the service is a complete expulsion from the Army and covers all unexpired enlistmenis. Par. 168, A. R., 1901.

A dishonorable discharge is a discharge expressly imposed as a punishment by sentence. Such a discharge is held also to be involved in a sentence "to be drummed out of the service.” It is only by a sentence that a dishonorable discharge can be authorized. Being a punishment, it cannot be prescribed by an Order. In a case of this discharge, the word “dishonorably” is inserted before the word “discharged” in the certificate, and it is added that the discharge is given pursuant to the sentence of a certain general court-martial, specifying it by reference to the order by which it was constituted. Dig. Opin. J. A. G., 361, par. 25.

Held that an executed dishonorable discharge was an absolute expulsion from the Army, and as such did not merely terminate the particular enlistment, but covered all previous unexecuted enlistments of the soldier, if any. A soldier sentenced to a dishonorable discharge, duly approved and executed, can not be made amenable for a desertion committed under a prior enlistment. Ibid., par. 26.

The discharge of a soldier, discharged not by reason of the expiration of his term of enlistment, but under a sentence of court-martial, should be dated as of the day on which the approval of the sentence is officially published, or the order promulgating such approval is received, at the post where the soldier is held. It is to that date that he is to be paid, if pay is due him. Ibid., 359, par. 16.

The formai certificate of discharge, furnished in blank by the Adjutant-General (see par. 151, A. R.), is, when duly made out and signed, legal evidence of the fact of discharge, and of the circumstances therein stated, under which it was given. The certificate is not a record, and its statements are not conclusive upon the Government when contradicted by record or other better evidence. Dig. Opin. J. A. G., 358,

The discharge furnished to the soldier, or for him, takes effect, like a deed, upon delivery. The delivery should be personal, unless, at its date, the soldier is in confinement awaiting trial or under sentence; in such case the delivery may be constructive, the certificate being committed to the commander of the company, post, etc., to be retained by him for the soldier until released from arrest or imprisonment, and then rendered to him personally. This is the recognized practice; the delivery to the commander being deemed tantamount to actual delivery. Ibid., par. 14.

A soldier should not be furnished with his formal discharge on the day of the expiration of his term if he is then awaiting sentence of court-martial. No soldier in such a status can be entitled to his discharge till the result of his trial be published. Ibid., 359, par. 15.

Any form of discharge other than such as is prescribed in the fourth Article of War is irregular and inoperative (unless indeed otherwise authorized by subsequent statute). Mere desertion does not operate as a discharge of a soldier; he may then be dropped from the rolls of his command, but he is in no sense discharged from the Army. Nor can an official publication, in orders, of a sentence of dishonorable discharge have the effect of discharging a soldier; there must still be a notice, actual, as by the delivery of the formal discharge certificate, or constructive, of the formal discharge. A soldier can not discharge himself by simply leaving the service at the

par. 13.

DISCHARGE BY PURCHASE.

Discharge by purchase.

1890, v. 26, p. 157.

1386. That in time of peace the President may, in his Scc 4; bunga, discretion and under such rules and upon such conditions

as he shall prescribe, permit any enlisted man to purchase his discharge from the Army. The purchase money to be paid under this section shall be paid to a paymaster of the Army and be deposited to the credit of one or more of the current appropriations for the support of the Army, to be indicated by the Secretary of War, and be available for the payment of expenses incurred during the fiscal year in which the discharge is made.' Sec. 4, act of June 16, 1890 (26 Stat. L., 157).

as

expiration of his term. The final statements required by paragraph 141, A. R., to be furnished with the discharge, constitute no part of the discharge; the discharge is complete without them. Ibid., par. 17.

Discharge certificates will not be made in duplicate. Upon satisfactory proof of the loss of a discharge or of its destruction without the fault of the party entitled to it, the War Department may issue to such party a certificate of service, showing date of enlistment in and discharge from the Army and character given on discharge certificate. Discharge certificates must not be forwarded to the War Department in correspondence unless called for. Par. 155, A. R., 1901.

Blank forms for discharge and final statements will be furnished by the AdjutantGeneral of the Army, and will be retained in the personal custody of company commanders; those for discharge will be of three classes: For honorable and for dishonorable discharge and for discharge without honor. They will be use llows:

(1) The parchment discharge blank, for honorable discharge only, and the word “honorably” will be interlined in the old blanks when used.

(2) The blank for dishonorable discharge, for such discharge alone.
(3) The blank for discharge without honor when a soldier is discharged:
(a) Without trial, on account of fraudulent enlistment.

(b) Without trial, on account of having become disqualified for service, physically or in character, through his own fault.

(c) On account of imprisonment under sentence of a civil court.

(a) On account of being at the expiration of his term of enlistment in confinement under the sentence of a general court-martial which does not provide for dishonorable discharge.

(e) When discharge without honor is specially ordered by the Secretary of War for any other reason. Par. 167, ibid.

An enlisted man remains in service until receipt of his discharge, or until such action is taken as will render him legally chargeable with notice thereof, notwithstanding the expiration of his term of enlistment during his absence on a furlough granted at his own request. 2 Compt. Dec., 94.

Under section 4 of the act of June 16, 1890, the President may, in his discretion, permit a soldier to purchase his discharge, even if his service has not been faithful. This section does not, as do section 1 (relating to pay) and section 2 (relating to discharge and furlough), prescribe as a condition to receive its benefits that the antecedent service shall have been “faithful.” Dig. Opin. J. A. G., p. 362, par. 32.

The act of June 16, 1890, section 4, leaves it to the President, in his discretion,” to determine the amount to be paid for the discharge, the time of payment, etc., and, indeed, whether the purchase shall be permitted at all. But it specifically declares that the money when paid “shall be paid to a paymaster of the Army;" and, in view of this express provision, held that payments could not legally be made to post, regimental, company, or other commanders. The paymaster, a bonded official, is appointed to receive payment in the first instance and thereupon make the deposit directed in the act. Ibid., par. 33.

Held that there was no legal authority for the refunding, by the military authorities, of money paid to purchase a discharge under the act of June 16, 1890. This clearly appears from the terms of the act, which provides that the money, when

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