#### DENNIS W. MULLAN v. THE UNITED STATES.

[42 C. Cls. R., 157; 212 U. S. R., 516.]

*On the claimant's Appeal.*

An officer in the Navy requests the Secretary to refer certain charges against himself to a court of inquiry. The finding of the court of inquiry being adverse, he requests the Secretary to grant a court-martial. The Secretary does so, but on condition “ *that the record of such court of inquiry be accepted as evidence in the case, each of the pwties to the’trial to have the privilege of introducing other evidence.”*The officer agrees to this and raises no objection at the trial to the condition imposed and calls a witness. The decision of the court-martial is that the officer be dismissed. The sentence is mitigated by the President so as to suspend the officer from rank and duty on half sea pay for five years. This suit is to recover the difference in pay, and it involves the legality of the court-martial.

The court below decides:

I. Civil courts are precluded from setting aside or reviewing the proceedings and sentences of courts-martial where it affirmatively appears that they are legally constituted and had jurisdiction of the offense charged.

II. It is provided by the Revised Statutes (§ 1624, art. 60) that the proceedings of courts of inquiry “ *shall in all cases not capital nor extending to the dismissal of a commissioned or warrant officer, be evidence before a court-martial, provided oral testimony can not be obtained.”*

*597III. The provision of the Revised Statutes (art. 60)' was to so limit and circumscribe the proceedings of courts-martial as to secure the accused the right to be confronted with the witnesses against him in capital cases and in cases where he may be dismissed from the service. It is not mandatory and may be waived.

IV. The statute (art. 60) is not a limitation upon the jurisdiction of a court-martial. It is merely a regulation as to its proceedings, securing certain rights to the accused which he may waive.

V.It is a privilege and not a right that a naval officer shall have charges against him investigated by a court of inquiry and again by a court-martial. The Secretary of the Navy is invested with power to convene a court-martial at the request of an officer, but also with discretion as to whether it shall be . convened.

VI.The question of waiver is usually one of fact. A person may waive the advantage of a law intended for his benefit where the waiver will not affect or contravene the rights of others.

VII.The evidence adduced before a court of inquiry is surrounded by all the solemnities of evidence taken in a.court of record or before a court-martial.

VIII.The action of the Secretary of the Navy allowing a court-martial upon condition that the evidence taken before the court of inquiry should be admitted did not constitute duress. The officer was free to decline the condition or to introduce other evidence.

IX.Article 54 of section 1624, Revised Statutes, which authorizes officers who have authority to convene a general court-martial “ *to remit or investigate but not to commute the sentence of any such court*” has no application to the President.

The decision of the court below is affirmed.

Mr. Justice Day delivered the opinion of the Supreme Court February 23, 1909.