The National tribune., 1902-11-06

of the War Department is directly con-
trary and antagonistic to the ruling of the
same Department upon the same Identical
question, after space of 10 years.
The War Department, not deeminS
Tyler to have been in the United States
service while member of the 9th Mass.
Vols, because of a lack of muster in, and
consequent inability to muster cut, re.
fused to discharge him of record.
This Department knows Of no law af-
fecting the pensionable status of sol
dier under section 1858 of the Revised
Statutes, which requires him to have been
actually discharged, and of record, by the
War Department. If soldier was killed
in battle IL record of regular discharge by
the War Department certainly could not
be produced: yet, nevertheless, his de-
pendent relative would be entitled to pen
sion, other necessary facts being shown:
and the title of snch dependent relative
is unquestionably based upon the title of
the solder, as Will readily be seen by read
ing section 1902. Revised Statutes. in con-
necti0n with section 1853, Revised Stat
uteS.
Unlike many of the acts of Congress.
section 4693, Revised Statutes, as well as
other sections and acts explanatory and
amendatory thereto which bear upon the
reasonable status of the soldier under
the general law, does not in terms make
an honorable discharge necessary. Nei-
thcr is it apparent, 10y inference or pre-
sumption, that Congress meant to deny
reasonable status under the general law
ii soldier was not actually personally
discharged; that is, formally mustered out,
or presented with paper showing upon
its face that he was discharged
1T is necessary that one legally ter
| inmate his military service before he can
| be accorded a pensionable status for such
service under the general law. for the very
plain reason that if his military service
has not terminated he is still in the SER
vice. and the law denies him, a pension
while in the service. Because, however,
legal termination of service is an essen
tial prerequisite in such a case. it does
not necessarily or logically follow that
there can be no legal termination of
the service in the absence of Il spe-
cifc discharge by the War Depart
ment. A reference to the opinion
some of the Pennsylvania militia regi-
ments mentioned therein were never dis
charged or mustered out by the War De-
partment, and yet it was consistently held,
the reason for such holding being fully set
forth, that the. service of the members
of these Organizations had been legally
terminated 1t is admitted in the Penn
sylvania cases mentioned that the sol
diers were discharged by the Governor of
the State of Pennsylvania, but this was
not discharge by the War Department,
| nor, most important of all, was it a dis
| charge from the military service of the
United States; and if said Department
| was now requested to discharge these
Pennsylvania men, its answer, in order to
be consistent with its ruling in the case
at bar, would have to be, and undoubt-
edly would be, that it would not discharge
them, because it had never mustered them
in. Upon this point, then. it would seem
that tie particular principle involved was
the same in the Manley case as is now
| involved in the one under discussion.
1T is true that in certain departmental
decisions it has been held that one must
be discharged from the service before a
pensionable status can be admitted under
the general law; but 4 very careful review
of said decisions demonstrates conclusive
| ly that the true meaning of the word dis
| charged as therein used. is a legal ter
| mination of service, and not a discharge
| as evidenced by some writing of United
| States military officer, or of a record that
| he was discharged Actual discharge is
fact, the discharge certificate or the
| record being but evidence of such fact.
That these statements are true is clear
from the following:
Most of the cases wherein this issue
| is discussed are those in which desertion
| is the issue, and the two leading cases,
| which practically cover the entire ground,
are those Of John Norton g. p. D., 3S2)
| and Patrick H.. Burns I'll 2. D., 332).
| In both of these cases an opinion of At
tOrney-General Taft is quoted, and said
departmental decisions SO far as the
| point under discussion is concerned, are
| practically based upon said opinions, the
| essential portion of which is as follows:
THAT the contract of enlistment must
| in all cases, even in that of desertion. be
regarded as having expired when the last
day of the term of enlistment therein fixed
| has elapsed.
'And again, as shown in said decisions,
the War Department holds that although
a man enlisted in his second service while
in desertion from prior service, yet, if
| the United States does not avoid the sec
ond enlistment before its expiration, it
| becomes a legal term of service.
The conclusion is irresistible that the
War Department holds, and Attorney
General Taft held, that soldiers term of
enlistment legally terminates on the date
on which his contract of enlistment ex-
| pires. '.-7ii'r- 't q ~
"And further, upon the same issue: Sec
ton 4701, Revised Statutes, provides that
in determining the length of the soldiers
| service it shall, in certain cases, be law
full to continue the length of service up to
| the date of the disbandment Of the or
ganization Of which the soldier was a
member. A strong argument could GER
tainly be built on the proposition that the
section referred to is good authority for
holding a soldiers service to have been
legally terminated, other necessary facts
being proved, on the date on which said
| organization was disbanded. For, if the