The National tribune., 1907-01-10
PENSION DECISIONS. ,,I

AlNSAVlN DA~2S4VANSO
Vicious Hnbfts-HonersAle Discharge.
Act Of June =, 1sS0-Actesl Service.
Service. gy
Where a soldier or sailor, Through his
vicious habits. incurs ysnereal disease,
thereby creating the occasion for his
discharge from seryicej ipeasion under
the act of June 27. 1890. either to him
or to those claiming under him is to be
denied upon the ground that a person
may not. by his own tort, esta blish one
of the conditions precedent to pen
sionable status and acquire therefrom
any advantage or benefit assagainst the
Government.
The act of June 81. 1890. contem-
plates an actual rather than a techni-
cal service of at least 80 days. cul-
minating in a separation i1nputing no
dishonor. The expression "honorably
discharged" as employed in said act is
not used in technical professional
sense. but in it's broader general sense
signifying that the soldiers or sailors
service terminated in a state of honor
20. 10-17-'05.
Service Deserfion Honorable Dis
charEe-Faitbful Seryfee-Joint Rcso-
lutions Of July I, 1902, and June IS,
1906-Act Of Jnne "a, 1890.
Appellant enlisted Nov. 2, 1861, and
deserted Nov. 10, 1862, and an applica-
ton for the removal of such charge of
desertion and for an honorable dis
charge from said service has been de-
MED. He again enlisted under an alias
from another State Feb. 9. 1864, and
deserted July 6, 1865. The last charge
of desertion was removed and he was
granted a discharge under the pro-
visions of the act of March 2, 1889, to
date from July 6. 1865.
IaI Il. !, ,e,
sion under the general law for dis
ability contracted during the period of
his first enlistment, because by his de-
Sertion from the service under said en-
listment he repudiated his contract of
enlistment and forfeited all right to
any benefits that are incident to such
enlistment.
That he is not pensonable under the
act of June 27, 1890, as he was not
honorably discharged from all the SER
vice to the United States he contracted
to render during the war of the re-
bellion.
The removal of the charge of deser-
ton from his last service and the grant
ing him discharge therefrom under
the provisions of the act OF March g
1889. does not bring his case within the
provisions of the joint resolution Of
July /, 1902, and June %, 1906, for the
reason that his entire service under his
last contract of enlistment was not
faithful within the meaning of said
resolution, and he can not hereunder
be deemed to have been honora bly, dis
charged from all the service he con-
tracted to render during the war of the
rebellion. 21. 10-1S-'06.
Practise - Dismissal - Evidence - Re
opening.
The evidence filed to reopen this
claim IS in part immaterial and in part
such a departure from the witnesses
original testimony on special examina-
ton that it is valuelesS in the adjudica-
ton of said claim, and refusal TO re-
open the claim. upon -fsnch testimony
was proper; but the im.nateriality of
evidence filedHto reopen aarejected elaiffr
is no ground for Dismissal of appeal
from refusal to reopen itheTclaim upon
such esidence.us'22Iz 80 10-264'OG. .'eNor-e
Marriage - Tennessee - Common-I.aw
MarriaEe-Seeond MnrriaSe-Construc-
fion-DivOrce. ,-b , ''''''' :.
Claimant married one, N. in 1860,
who afterward deserted, her. After his
absence for more than five, years, and
having no knowledge or reason to be-
lieve that he was still living, she mar
ried a soldier in Tennessee in 1867. NJ.
in fact survived the soldier. The first
marriage was never dissolved by judi
cial divorce. The Constitution of Ten
nessee forbids divorce by direct Iegis-
lative enactment, merely permitting the
Legislature to authorize courts of JUS
tce to grant divorces. Claimant in
vokes section 41S8, Code of Tennessee,
which provides that prior marriage
shall be regarded as dissolved for the
purpose of remarriage if either party
has been absent five years and is not,
known. To- be 70 living ,......
Hello: ilat until the Courts of Ten
nessee otherwise construe said section
the. sffeets thereof for pensionahle pur-
poses is merely to raise a presumption
of the dissolution of the first marriage,
said presumption being subject to re-
buttal
The fact that NJ survives the soldier
and that neither he nor claimant ever
obtained divorce, rebut the presump-
ton of the dissolution of said first mar
riage, and no valid marriage ever hav-
ing subsisted between claimant and
soldier, she Is therefore not the widow
of the latter. %. 10-31-'06.
Marriage Rema-riase Divorce,
Evidcnce-EstoppeI.
The claimant having procured a de-
cree of divorce. affirming the fact and
the validity of her marriage to ]. B.,
subsequent to that to the soldier, she is
estopped from setting up claim as SOL
dfer's widow so long as such decree re-
mains judicially unimpeached. "a. H.
21-'06.
A Strange Coincidence.
Hiram Heaton, Co. E, I'd Iowa. Glen