The National tribune., 1903-07-16

copies of its records, or statements from
them, to enable the officers or employees
of other Departments to make lndepend-
ent decisions upon purely military ques-
TONS
'In deciding questions raised by an ap-
peal from a decision of the Commissioner
of Pensions, this Department exercises
judicial functions and is governed, so far
as compatible with its peculiar class of
cases, by those general rules as to evidence
that obtain in general tribunals OF justice.
One very elementary rule is that judgment
must be rendered on facts shown by COM
petent evidence only. This is a truism
that hardly needs to be stated. \ claim
can not be adjudicated upon alleged facts
if those facts are not properly in evi-
dence. The point is well stated in the
case of Levi NJ Winchell (51O l.. B., 356l,
decided Aug. {. 1892:
The conclusion. determination, or
opinion of any Department, based on evil
dence not before this Department. can
have no weight in the determination of
the case
There are only two questions of fact
raised by the appeal: a. Was soldier in
the military service of the United States
during the war of the rebellion? and (2)
What was the duration Of that service!
Tie opinion or conclusion OF the Chlet
OF the Record and Pension Office of the
War Department. based upon certain al
legged facts within his knowledge, but not
within the knowledge Of this Department:
that soldier MAS never in the service OF
the United States, is not evidence that
can be considered in this case. Facts
formally reported by the custodian of rec
ords in the War Department are, under
our practice, treated as evidence properly
introduced. But the conclusions OF some
officers drawn from facts within his
knowledge are not. and can not be, treated
I,,- fl, ,,Li, trIlN tviIpnrp
Only the alleged facts adduced from rec
ords in his custody, upon which his opinion
is based would be competent evidence
upon the point in issue on this appeal; and
a statement Of such facts as may warrant
the opinion that soldier was never III the
service of tie United States was refused.
"rhere is. however. competent evidence,
in the nature of a record, upon tbs polTt,
now before the Department-the Sur
Ceon's certificate of disability for dis
charge, hercinbefore quoted. corroborated
by the certificate OF discharge and by the
report of the War Department dated Aug
:. 1891. This constitutes the whole rec
ord as furnished by the War Department,
eliminating the conclusion. determination.
or opinion of its Chief of the Record and
Pension Office. and it is irrcconclab!e
with said conclusions, or opinions. OF tiat
officer 1t shows conclusiyely that
soldier was in the service OF his country
in the war of the rebellion and that ms
term of service extended from June y. to
Nov. II, 1SGl-fve months and five days.
There is nothing in evidence to destroy
the PRESUMPTION that actual service was
rendered by the soldier. In the absence OF
any evidence to the contrary, actual ser
vice. within the meaning of the act, must
be presumed from the record: he was en-
rolled at one place and honorably dis
charged FIVE months later at another place,
upon a Surgeons certificate of disability,
in which It is stated that during the last
two months the SAID soldier has been unht
for duty - days 1t does not appear
that he was unfit for .actual service the
remaining three months: the language OF
the certificate implies the contrary. The
War Department in its report dated Feb.
II, 1886 states that no record has been
found showing whether ewas examined by
the board of enrolment ut Wooster, OHIO,
the place of his enrolment, in June. There
is no evidence to show that he was net
held to service; the Surgeons ceruhcate
of disability for discharge tends to show
the contrary. That certificate shows that
he was examined on or after Nov. 3. 1861,
BIZ a Surgeon, the President of the Exam,
lining Board at general rendezvous, and
that his action was approved by the Med
ical Director of the Northern Department
on Nov. 10, 1864. Whereupon the custo-
mary discharge certificate. which agrees
Wlth tne WIS iSSutu. i HtiC 10 iiO
evidence 10 show that it was improperly
issued to him. the evidence shows the
contrary. If it is of no valne as. evidence
that he was in the service it IS so, not
because it was improperly issued, but be,
cause there is better evidence of the fact
that he was in the service-the record it
self, the discharge certificate sustaining
the same relation to the original record
that clerks certificate of n courts de-
cree bears to the original record of that
court.
'sThe soldiers pensionable status was
accepted by the Bureau of Pensions upon
the same evidence, i. e., competent evil
dence; that is. in the widows case-the
opinions of officers of the War Depart
ment not being regarded as evidence: That
action should be treated as conclusive as
to the widows claim in the absence OF ad-
ditional evidence that would justify con-
trary conclusion.
.'The action is, therefore, reversed