CERTIFICATES OF MERIT. 13 552. When any non-commissioned officer shall distinguish himself, or may have distinguished himself in the service, the President of the United States shall be and is hereby authorized on the recommendation of the commanding officer of the regiment to which said non-commissioned officer belongs, to attach him by brevet of the lowest grade to any corps of the army. Provided, That there shall not be more than one so attached to any one company at the same time, and when any private soldier shall so distinguish himself, the President may in like manner grant him a certificate of merit, which shall entitle him to additional pay at the rate of two dollars per month.-Sec. 17, March 3, 1847, chap. 61. MEDALS OF HONOR. 553. That the President cause to be struck, from the dies recently prepared at the United States mint for that purpose, "medals of honor" additional to those authorized by the act [resolution] of July 12, 1862, and present the same to such officers, non-commissioned officers, and privates as have most distinguished or who may hereafter most distinguish themselves in action; and the sum of twenty thousand dollars is hereby appropriated out of any money in the treasury not otherwise appropriated, to defray the expenses of the same. Sec. 6, March 3, 1863, chap. 79. 13 So much of this section as refers to promotion of non-commissioned officers seems to be supplied by act of 1854: see ¶ 534. The same act makes provision for extra pay on certificates of merit: see Chap. xi., ¶ 331. (a.) This act (552) invests the President with authority to issue such brevets to those who as non-commissioned have rendered distinguished services; and this whether they, at time the appointment issues, have been reduced to lower rank, or have left the service. As the President has the power to appoint a citizen as second lieutenant, "much more would he be deemed to have the power to appoint a private citizen to the place of brevet second lieutenant," etc.-5 Opinions, 22. See note 10 b. 14 The resolution referred to provided for the presentation of medals of honor to such enlisted men as should most distinguish themselves during the then existing rebellion. 15 Acts of Congress regulating appointments and promotions in the army: June 26, 1812, 4. Promotion established through the line. (See note 7.) March 3, 1813, 4. Adjutant-generals, inspector-generals, quartermaster-generals, deputy quartermaster-generals, and assistant deputy quartermaster-generals may be appointed from the line or not, as the President may deem expedient. Assistant adjutant-generals and assistant inspector-generals to be taken from the line. March 30, 1814, 12. Promotion throughout the line. (¶539.) May 18, 1826, 4. the line. March 2, 1829, 22. the line. June 30, 1834, 21. Quartermaster's department. Additional offices to be filled from Subsistence department. Additional offices to be filled from (See Chap. ix., note 2.) Medical department. Appointments and promotions. (See ¶ 283.) July 5, 1838, 4. Topographical engineers to be organized into a corps by regular promotion, etc. 27. Adjutant-general's department. Additional offices to be filled from the line. (See 207.) 29. Quartermaster's department. Appointments in, to be from the line. Promotion by seniority. July 7, 1838, 3. Quartermaster's department. Assistant quartermasters not to be separated from the line. 27. Subsistence department. Commissaries not to be separated from the line. June 18, 1846, § 6. Adjutant-general's department. Additional offices to be filled from the line. 27. Quartermaster's department. Promotion to grade of major by selection from captains of the army. February 11, 1847, 3. Regiments. Additional majors to be selected from the captains of the army. 10. Quartermaster's department. Additional offices to be filled by selection from the line. March 3, 1847, 2. Adjutant-general's department. Additional offices to be filled by selection from the line. September 26, 1850, 1. Subsistence department. Additional offices to be filled by selection from the line. (See Chap. ix., note 2.) March 3, 1851, 1. Staff corps and departments. Promotion in, to be by seniority. (¶540.) March 3, 1853, 9. Engineers and ordnance. Promotion by length of service. (¶ 541.) February 15, 1855, 21. Lieutenant-general. Appointment of, by brevet, to be conferred on a major-general. (See 7 Opinions, 403.) August 3, 1861, 22. Subsistence department. Additional offices to be filled from the line, regulars or volunteers. 23. Quartermaster's department. Promotions of captains by length of service. 3. Engineers. Additional offices in, to be filled by regular promotion. 3. Ordnance department. Additional offices to be filled by selection. August 6, 1861, 1. Engineers. Additional offices in, to be filled by regular promotion. (See 10 Opinions, 144.) April 16, 1862, 24. Medical department. Certain offices created in, to be filled by selection. (See Chap. x., note 4.) July 17, 1862, 22. Adjutant-general's department. Appointments in, from captains. (208.) July 17, 1862, 11. Cavalry. Vacancies created in the, to be filled by promotion. December 27, 1862, 1. Medical department. Inspectors appointed by selection. February 9, 1863, 1. Subsistence department. Certain vacancies to be filled by promotion. February 29, 1864, 1. Lieutenant-general. The, selected from grade of majorgeneral. ( 197.) July 25, 1866, ? 1. General. The, to be selected from those in military service. (¶ 195.) March 3, 1869, ? 2. Infantry promotions suspended. (¶463.) 26. Staff departments. Suspension of appointments and promotions in. (¶538.) March 12, 1872. Medical department. Provides for the designation of a chief medical purveyor. (See Chap. x., note 4 b.) June 3, 1872. Quartermaster's department. Special promotions authorized. (See Chap. viii., note 2 a.) June 4, 1872. Paymaster-general to be appointed. (See Chap. xi., note 1 a.) June 8, 1872. Inspector-general's department. Special promotion in. (See Chap. vii., note 4 b.) June 10, 1872. Engineer corps. Promotion and appointments in, re-established. (¶ 370.) CHAPTER XX. RESIGNATIONS, DISMISSALS, DISCHARGES FROM SERVICE, AND DISEASED OFFICERS AND SOLDIERS. RESIGNATIONS. 561. ANY commissioned officer of the army, navy, or marine corps, who, having tendered his resignation, shall, prior to due notice of the acceptance of the same by the proper authority, and, without leave, quit his post or proper duties with the intent to remain permanently absent therefrom, shall be registered as a deserter, and punished as such.-Sec. 2, August 5, 1861, chap. 54. 562. Any officer of the army or navy of the United States who shall, after the passage of this act, accept or hold any appointment in the diplomatic or consulate service of the government, shall be considered as having resigned his said office; and the place held by him in the military or naval service shall be deemed and taken to be vacant, and shall be filled in the same manner as if the said officer had resigned the same.-Sec. 2, March 30, 1868, chap. 38. 563. It shall not be lawful for any officer of the army of the United States, on the active list, to hold any civil office,' whether by election or appointment; and any such officer accepting or exercising the functions of a civil office shall at once cease to be an officer of the army, and his commission shall be vacated thereby.— Sec. 18, July 15, 1870, chap. 294. DISMISSALS AND DISCHARGES. 564. After a non-commissioned officer or soldier shall have been 1 According to the general principles of law, the resignation of an officer made while he was insane is a mere nullity which could not be made valid by its acceptance.-6 Opinions, 456; 10 ibid., 229. 2 AN OFFICE is a public station or employment conferred by the appointment of government, and embraces the ideas of tenure, duration, emolument, and duties.United States v. Hartwell, 6 Wallace, 385. The employment of army officers on coast survey and lighthouse duties, on river and harbor improvements, on surveys of roads, canals, etc., has been repeatedly authorized, or directed, by laws which are believed to suffer no derogation from above section. See Chap. iv., ¶ 154; Chap. xii., ¶¶ 378, 390; Chap. xxviii., ¶ ¶ 928, 929. duly enlisted and sworn, he shall not be dismissed the service without a discharge in writing; and no discharge granted to him shall be sufficient which is not signed by a field officer of the regiment to which he belongs, or commanding officer, where no field officer of the regiment is present; and no discharge shall be given to a noncommissioned officer or soldier, before his term of service has expired, but by order of the President, the secretary of war, the commanding officer of a department, or the sentence of a general court-martial; nor shall a commissioned officer be discharged the service, but by order of the President of the United States, or by sentence of a general court-martial.—11th Article of War, April 10, 1806. 565. In all cases where it has become necessary for any officer or enlisted man of the army to file his evidence of honorable discharge from the military service of the United States, to secure the settlement of his accounts, the accounting officer with whom it has been filed shall, upon application by said officer or enlisted man, deliver to him such evidence of honorable discharge, providing [provided] his accounts shall have been duly settled; and provided that the fact, date, and amount of such settlement shall first be clearly written across the face of such evidence of honorable discharge, and attested by the signature of the accounting officer.Joint Resolution, May 4, 1870. 3 DISCHARGE FROM SERVICE.-Under this Article of War a department commander can discharge a soldier only upon surgeon's certificate of disability, or in accordance with sentence of a general court-martial.—Adjutant-general, October 14, 1871. In time of war, enlisted men in general or permanent hospitals may be discharged by the medical inspector. See Chap. x., ¶¶285, 286. It is unlawful to discharge a soldier "without pay," except upon sentence of courtmartial.-Adjutant-general, August 9, 1869. (a.) "No discharge shall be made in duplicate, nor any certificate given in lieu of discharge."-Army Regulations (1863), ¶ 165. See ¶ 570. (b.) "It is decided that a discharge from the service, given before the expiration of the term of confinement imposed by sentence of court-martial (where by the terms of the sentence a dishonorable discharge is to be given at the end of the confinement), will operate as a remission of the remaining portion of the sentence."--Adjutantgeneral, August 12, 1871. (c.) "Applications of soldiers for discharge, by reason of twenty years' service, are not entertained by this office, unless the soldier is a fit subject for discharge on certificate of disability, or desires to enter the Soldiers' Home."-Adjutant-general, May 1, 1872. See 595. (d.) General service clerks may be discharged, or transferred to companies at the discretion of the commanding general.-Indorsement of Adjutant-general on G. O. No. 92, A.-G. O., 1868. 4 DISMISSAL OF OFFICERS.-No officer can be dismissed in time of peace except by, or under commutation of, sentence of general court-martial (¶ 567); but he may be dropped from the rolls, for desertion, under the law cited in ¶ 569. This article transferred to the President the power of summary dismissal theretofore vested in Congress, and this power finds its only limitation in ¶ 567. The last clause of this Article of War is as applicable to the commissioned officers of 566. In case any officer of the military or naval service who may be hereafter dismissed by authority of the President shall make an application in writing for a trial, setting forth under oath that he has been wrongfully and unjustly dismissed, the President shall, as soon as the necessities of the public service may permit, convene a court-martial to try such officer on the charges on which he was dismissed. And if such court-martial shall not award dismissal or death as the punishment of such officer, the order of dismissal shall be void. And if the court-martial aforesaid shall not be convened for the trial of such officer within six months from the presentation of his application for trial, the sentence of dismissal shall be void.-Sec. 12, March 3, 1865, chap. 79. 567. That sec. 17 of an act entitled "An act to define the pay and emoluments of certain officers of the army," approved July 17, 1862, . . . be and the same are hereby repealed. And no officer in the military or naval 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."-Sec. 5, July 13, 1866, chap. 176. 568. No officer of the army of the United States, who has been or shall hereafter be cashiered or dismissed from the service by the volunteers, when mustered into the service of the United States, as it is to regular officers. Having once been mustered into the national forces, the volunteer officer cannot be dismissed or discharged by the State executive.-10 Opinions, 281, 306. (a.) Regulations for carrying into effect provisions of this section: Army, department, or division commanders, forwarding recommendations for summary dismissal, will transmit, accompanying the same, charges and specifications appropriate to the offenses imputed, properly framed, and supported by affidavits or official reports, with the names of the witnesses by whom all material allegations can be substantiated. Applications for trial under this act must be made as soon as practicable after receipt of notice of dismissal, setting forth, under oath, facts showing the error or injustice complained of, and must be addressed to the adjutant-general of army. Should there be no general court-martial, appointed by direction of the President, then in session at a convenient point, one will be convened within the department or corps where the accused last served, unless the latter shall have suggested sufficient reasons for causing the trial to be elsewhere held. The trial will proceed in the usual manner, upon the charges originally forwarded; and, should the President revoke the order of dismissal before arraignment of the accused, he may also be tried upon such additional charges as may be properly preferred. Should the court award any other punishment than death or dismissal, such sentences will, if approved by the President, be duly executed.-G. O. No. 112, A.-G. O., 1865. The section thus repealed provided "that the President of the United States be and hereby is authorized and requested 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 renders such officer unsuitable for, or whose dismission would promote, the public service;" and simply affirmed a power held by the Supreme Court to be "an incident of the power of ap pointment" (see 13 Peters, 259), and exercised from the foundation of the government. -4 Opinions, 603; 8 ibid., 223. See also last clause of¶ 564; and for power to drop an officer from the roll see ¶ 569. (a.) But see ¶ 744. |